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Thursday, June 16, 2011

Federal procedure day at the Supreme Court

It was a heavy procedure day at the Supreme Court--and that is without the justices getting to the two personal jurisdiction cases that the civ pro professoriate has been awaiting. Justice Kagan authored one of the opinions and she introduced it by calling it a "complicated procedural ruling." Live-blogging at SCOTUSBlog, Amy Howe translated this as "if you understand anything I say, you have a law degree AND you had your cup of coffee."

First was Smith v. Bayer (the one authored by Justice Kagan), holding that a federal court which had denied class certification under FRCP 23 could not enjoin a state court from considering a class action raising similar claims against the same defendant. The "relitigation exception" to the Anti-Injunction Act did not extend that far for two reasons--1) class certification under FRCP 23 was not the same issue as class certification under West Virginia Rule 23, because West Virginia law had explicitly taken a different approach and 2) the named plaintiff in the state case was not a party to the federal case, thus he could not be subject to issue preclusion by the federal court's ruling (Justice Thomas, without explanation, did not join this part of the opinion). One additional note: Stanley Fish a while back commented on Kagan's rhetorical style in her dissent in CSTO v. Winn (the taxpayer standing case). Smith confirms that--her opinions are very enjoyable reads.

Next came Bond v. United States. This case is more known for its underlying facts (Bond used chemical materials to hurt a former friend who had become pregnant after an affair with Bond's husband) and the seeming governmental overcharging (Bond was charged under a federal statute barring possession and use of certain dangerous chemicals, a staute enacted as part of the convention against chemical weapons). And it likely will get attention going forward (at least in the popular press) for what hints it gives about the health-reform litigation; Justice Kennedy includes a long paen to the beauty of federalism and how it enhances individual freedom. The specific issue before the Court was whether Bond had prudential standing to challenge the constitutionality of the federal law as violating the Tenth Amendment; the Court concluded she did.

The decision touched on two interesting procedural points. First, the Court overruled the discussion of standing in Tennessee Elec. Power Co. v. TVA (on which the lower-court had relied) on the ground that it is inconsistent with modern understandings of standing. The case had improperly conflated the concepts of "standing" and "cause of action", with the latter going to the merits and not the justiciability of the action. The Court recognized the difficulty of separating the two concepts, but also emphasized the need to do so in order to avoid the very confusion we see in this case. What was going on in Tennessee Electric was that the plaintiffs did not have a state-law claim against the TVA--a merits issue. It is inappropriate to refer to that as standing, with its implications for jurisdiction. And it therefore had nothing to do with the arguments that Bond could raise in this case.

Also notable is Justice Ginsburg's concurring opinion here, in which she adopts the view (posited by Monaghan and Fallon in separate contexts) that the idea of "third-party standing" often is not a matter of standing at all, but a matter of the right of the individual not to be convicted under a constitutionally invalid law. It does not matter why the law is invalid or in what way it exceeds the bounds of Congress' prescriptive authority; an individual always can argue that the law is invalid.

Posted by Howard Wasserman on June 16, 2011 at 12:16 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink


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