Monday, February 20 is a federal holiday; the February sitting will begin next Tuesday,  February 21.

In association with Bloomberg Law

Three years and three months have now passed since California voters amended their state constitution with Proposition 8, banning same-sex marriage throughout the state.  The first legal challenge began the next day, and others followed — first in state court, then in federal court.  Many who have been following the case have assumed, perhaps from the beginning, that the controversy would ultimately reach the Supreme Court.  After the ballot measure was struck down this month by the Ninth Circuit Court, a California newspaper, the Orange County Register, asked: “Next stop: the Supreme Court?”  Maybe not, or, at least, maybe not for a while.

The Ninth Circuit Court has a system (in some ways peculiar to that court) allowing other judges potentially to second-guess a three-judge panel’s decision like this one, and the system does not really depend upon what the lawyers involved ask.  The Court can go en banc on its own, in a limited form, and then it can go en banc once again, in a broader form.   It might do so in reaction to a request from some of the lawyers involved, or it might do so on its own without waiting for a request.  Either way, it could take a considerable amount of time before there is something final to take to the Supreme Court in Washington.

Those who sponsored Proposition 8, and got it approved with a 52.3 percent majority vote among California voters on November 4, 2008, have said they are studying their options, but they definitely have already committed themselves to challenging the three-judge panel ruling at some higher level.   There have been some hints, among some in that camp, that they would rather go on to the Supreme Court now, and bypass further review in the Ninth Circuit.

The further legal outlook for Proposition 8 may start to become clear in a matter of days.   The panel’s decision nullifying that measure is still on hold, so no same-sex couples in California could get a marriage license for the time being.  The successful challengers of the measure have said they will ask the panel to lift that stay, so that gay weddings could begin anew (some 18,000 couples got married in a window of time when that was legal).  If the panel grants that request, the backers of Proposition 8 might rush to the Supreme Court to ask that the stay be put back into effect.  That would be a quick option to get a first indication of where the Supreme Court might stand on this dispute.

But if that scenario over a stay issue does not play out, the proponents of Proposition 8 do have the option of trying first for further review in the Ninth Circuit.   They do have that option — unless, that is, the Circuit Court’s active judges preempt that choice (active judges are those currently sitting on the court who have not taken senior status while continuing to serve).

Under federal rules applying to all Circuit Courts, a majority of the active judges can either order an en banc review in response to a request from lawyers to do so, or it can order it on its own.  The effect of a vote in favor of such review is to set aside the panel decision, so that there is no final ruling of the Circuit Court until the en banc court finishes with it.   Under a special local rule that only the Ninth Circuit has, only 11 of the 25 currently active judges on the full court might sit on a “limited” en banc court — the more common kind — or, all 25 of them might join in on a “super” en banc court.  (There are actually 44 judges serving on the Ninth Circuit, but 19 of them are doing so in senior status and can’t vote on en banc matters; the Court has four vacancies.)

Under that local rule, if the court is thinking about going en banc, and no one has asked for it, it ordinarily will give the lawyers involved an opportunity to comment on whether they think the court should go that route.  If such further review is sought by a petition, the other side usually will get a chance to comment before the court does go en banc.

Another complicating factor — and one that could stretch out the review in the Ninth Circuit — is whether the en banc court would ask for new written briefs.   An en banc court can proceed just on the briefs filed in a three-judge panel proceeding, but it can seek new arguments on its own.

Although the Ninth Circuit is generally considered to be a liberal court, and thus might not be thought very eager to second-guess the panel’s decision against Proposition 8, the full court has some judges with strongly conservative views, and if only one of them asks for a vote on en banc, a vote would be taken to see how a majority feels about that.   It might be only a temporary victory for a judge who thinks the panel got it wrong, but a vote to take it to a fuller court would nullify the panel ruling.  When the court announces it has voted to go en banc, its order will note that the panel decision has been set aside, and cannot be cited as precedent in any other case.  In effect, the fuller court is starting from scratch, reviewing — just as the three-judge panel had — the District Court decision that is being challenged on appeal.

All of this process may take many months.   If the Proposition 8 case does unfold along these lines, an appeal to the Supreme Court might not arrive in Washington until well into 2013, and might not go to a final decision by the Justices (if review is granted)  until sometime in 2014 — perhaps nearly six years after Proposition 8 was put to the voters.  The slowly-turning wheels of justice might have cut its pace down considerably.

(The blog thanks an interested reader, a close observer of the Ninth Circuit, for pointing out the potentials for further review before that tribunal.)

In association with Bloomberg Law

The key issue in the case was whether the federal Fair Housing Act made it illegal for local governments to engage in housing code enforcement in a way that had a negative impact on minorities, even if there was no intentional bias.   All federal appeals courts that have ruled on the issue had concluded that such “disparate impact” claims were allowed under the Act, but city officials in St. Paul, Minn., took the issue on to the Supreme Court, and gained review.  The federal government, which supports the right to bring such claims, had joined in the case to defend the policy.

The case pitted city officials and their housing code enforcement agency against current and former owners of private rental properties, whose customers were mainly individuals or families with low incomes, with a large share of them — perhaps 60 to 70 percent — African-American tenants.  The property owners had sued, contending that the city agency used aggressive tactics, including inspection “sweeps,” in order to check out code violations even when there were no complaints.  Correction of the code violations the city found sometimes required expensive renovations.

A federal judge concluded that the property owners could pursue a claim of “disparate impact,” but ruled that they had not proved their claim.  But, even if the enforcement policies did fall more heavily upon African-American tenants, the judge declared, the city had legitimate reasons for its approach.  The Eighth Circuit Court disagreed, and ruled for the property owners.

The federal government, in joining in the case in the Supreme Court, argued that the Circuit Court was right in allowing the disparate-impact claim and in laying out the standard it would use to judge the claim, but that its ruling should be overturned because the Circuit Court had misapplied its standard.   It argued that the property owners had not offered enough evidence to survive the city’s motion to dismiss the case without a full trial.

While the city officials had relied in the Supreme Court on the fact that the federal government had told the Court in 1988 that the Fair Housing Act applied only to intentional discrimination in housing policy, Justice Department lawyers countered that this was before Congress gave the government added authority to carry out the Act.  And, the Department noted, the U.S. Department of Housing and Urban Development last November announced that it was planning to write a new rule to clearly establish disparate-impact liability, and to set new standards for judging such claims.

The case had drawn a significant amount of interest among civil rights groups, arguing that disparate-impact claims were important to maintaining equality in access to housing.  Twelve states had also joined in supporting the property owners.   Some business organizations and conservative legal advocacy groups had entered the case to support St. Paul officials.

(Disclosure: Attorneys in the law firm of Goldstein & Russell, affiliated with this blog, represented the property owners in the case.  The author of this post, however, operates independently of the law firm’s legal practice.)

In association with Bloomberg Law

————

The lawyers who pursued the case that led to the Supreme Court’s controversial ruling in 2010 freeing corporations to spend heavily on political campaigns asked the Supreme Court on Friday to overturn a Montana Supreme Court ruling that they argued defies the Court’s decision.   The state court ruling, the new filing argued, is so flatly contradictory to the Citizens United v. Federal Election Commission precedent that it should be summarily overturned.

The new document (American Tradition Partnership, et al., v. Attorney General of Montana, docket 11A762) is in the form of an application to put the state Supreme Court decision on hold pending a challenge in the U.S. Supreme Court, but it also asks as an alternative that the stay application be treated as a petition for review, that it be granted, and that the state ruling be overturned without briefing or oral argument.   The state court had refused on Tuesday to delay its ruling while an appeal went forward.  The application and motion were filed by attorneys for the the James Madison Center for Free Speech in Terre Haute, Ind., who also had initiated the Citizens United case.

At issue is a ruling by the Montana court on December 30, upholding a century-old state ban on the use of corporations’ own money to support or oppose any candidate in state elections.  One of the dissenters in the 5-2 decision predicted that the ruling would not withstand a challenge in the Supreme Court.  (The blog discussed the state court ruling in this post, providing a link to the opinion.)

The application and motion were filed with Justice Anthony M. Kennedy, who is the Circuit Justice for the part of the country that includes Montana — the Ninth Circuit.  It will be up to Kennedy to decide whether to act alone on the controversy, or to share it with his eight colleagues.

The Montana law at issue — the Corrupt Practices Act enacted by the states’ voters in 1912 — was interpreted by the state court as a flat ban on independent spending of corporations’ internal funds to support or oppose specific candidates for state office (independent in the sense that the financial effort was not coordinated with a candidate).  The measure thus was nearly identical to the ban in federal law that was struck down by the Citizens United ruling.

The Supreme Court, the state tribunal’s majority concluded, had left open the possibility that a “compelling interest” of the state would allow such a measure, and the majority found such an interest in the state’s past history and its present economic and political climate.

Three private corporations in Montana that want to spend funds independently in state elections urged Justice Kennedy, or the Court, to act swiftly, saying that “immediate relief is needed” because it is “vital that planning begin now for independent expenditures before the election.”

In suggesting that the full Court reach out and overturn the state decision without delay, the new filing argued that the state court’s “refusal to follow Citizens United” is such an obvious, blatant disregard of its duty to follow this Court’s decision that summary reversal is proper.”

In association with Bloomberg Law

In association with Bloomberg Law

Yesterday, the Senate Judiciary Committee voted 11-7 to advance a bill that would permit the Court to televise its proceedings if the Court were to change its mind and allow cameras.  The Wall Street Journal Law Blog, C-SPAN, Reuters, Wired, and the Blog of the Legal Times all provide coverage.

Briefly:

• Jeremy Leaming of ACSblog reports on reactions to Justice Ginsburg’s comments to an Egyptian interviewer that there are other governing documents, such as South Africa’s constitution, that she might consult if she were to draft a constitution “in the year 2012.”
• Brian Wolfman previews Taniguchi v. Kan Pacific, in which the Court will consider whether a federal statute that authorizes an award of costs for the services of interpreters to the prevailing party in a lawsuit also allows for an award of costs associated with translating written documents.
• Robert Barnes of the Washington Post reports on a wave of challenges to Section 5 of the Voting Rights Act, noting that they are quickly working their way toward the Court.
• A federal district judge in New York has ruled that the federal government must disclose internal e-mails to reveal whether it may have misled the Supreme Court about its policies on helping improperly deported immigrants return to the United States in Nken v. Holder.  Jess Bravin of the Wall Street Journal has coverage of the story, which Kiran also included in yesterday’s round-up.
• Lyle reports on a request by the health care challengers for argument time equal to that of the federal government.
• At Reason Magazine, Peter Suderman discusses the Medicare coercion issue in the healthcare cases, concluding that “[s]tates allied with the federal government and allowed themselves to become dependent on its health care handouts—and now they’re paying the price.”
• At CNN, Al Goodman reports that the Court has declined to hear an emergency application for a stay filed by a Florida deep-sea salvage company that is embroiled in a dispute with Spain over ownership of a recently discovered sunken treasure.
• The New York Times Bats Blog reports that “the Mets’ owners have asked the Supreme Court for help in their legal battle to prove they did not turn a blind eye to indications that Bernard L. Madoff had been running a fraud over more than two decades.”  The Associated Press (via Bloomberg Businessweek) also provides coverage.
• The Washington Post has posted a visual representation of efforts to map laughter on the Supreme Court in the 2006 Term; Justice Scalia prevails as the funniest Justice.

In association with Bloomberg Law

The challengers’ plea suggested that the federal government was pushing an arrangement that would go the furthest to shield the new law’s central provision — the individual insurance-purchase mandate — as well as other parts of the law from being nullified.  The states and their allies, by contrast, contended that they should not be shortchanged as they try to get all of the law struck down.

The challengers joined SG Verrilli in asking the Court to expand from 60 to 90 minutes the argument to be held on March 26 on what is known as the Anti-Injunction Act (AIA) issue.  That is the question of whether that Act bars anyone from making a challenge to the individual insurance mandate, on the theory that it is a tax provision not subject to legal protest until after it has gone into effect (in 2014).  But the SG’s view that the challengers should only get 20 minutes of the expanded 90-minute time drew their sharp protest, and they asked the Court to give them 30 minutes — an equal share with the federal government and with the Court-appointed lawyer drawn into the case to defend the Anti-Injunction bar.

The SG would allot the Court-appointed amicus lawyer Robert A. Long 40 minutes, and the federal government 30 minutes of a 90-minute hearing.  While the federal government is claiming that it is taking a middle-ground position on that issue, the challengers said, it actually is more closely aligned with the position Long will be taking since they will join in “the bottom line” view that the challenges to the individual mandate should fail.   The government argues that the mandate is constitutional on the merits, and Long is arguing that no one may challenge it, the new motion noted.

While the government does not share Long’s view that the specific challenges to the mandate are barred by the Anti-Injunction Act, the challengers’ motion said, the government actually has a long-term interest in having that bar interpreted broadly in order to insulate other tax provisions from pre-enforcement challenges in court.   The new motion contended: “The federal government is at least as concerned, if not more concerned, with rebutting the [challengers'] broader arguments about the AIA’s inapplicability as with securing a narrow exception to the AIA to cover the facts of this case but no other.”   The government, it added, “can win by losing” on its AIA position.

Giving the federal government, Long, and the challengers 30 minutes each, the new motion asserted, will divide up the time properly, and give each of the three counsel appearing on the AIA issue ample time to make their points.   But, the motion added, if the Court believes that Long should have more than an equal 30 minutes, any extra time should come out of the government’s allotment so that at least one-third of the argument time will be allocated “to parties without an institutional interest in the AIA’s broad applicability.”

(In another part of the motion, the challengers asked the Court to divide equally any time allotted to challengers, with the states getting half and the NFIB half.)

SG Verrilli has urged the Court to divide up in three equal ways the 90 minutes that will be devoted to the so-called “severability” issue — that is, the question of what parts of the new health care law — if any — can remain in force if the individual mandate is struck down.  (That argument will be heard as the first of two issues on March 28.)  That allotment would provide 30 minutes to the federal government, which is arguing that only two provisions of the law must fall with the mandate; 30 minutes to Court-appointed amicus lawyer Bartow Farr, who is arguing that no other parts of the law need to fall, and the states/NFIB parties, who are contending that all parts of the law must go down with the mandate.

In their new motion, however, the states/NFIB argued that the federal government once again is more closely aligned with Farr than might appear.  “It is not even clear,” they said, “that the federal government disagrees with the bottom-line position” that Farr is taking.  The government, the motion said, is arguing that none of the challengers have “standing” to make the severability argument as it applies to the individual mandate (because neither the states nor NFIB would be covered by that mandate).

Moreover, the motion asserted, the real debate over severability focuses on whether all of the health care law fails if the mandate fails.   That illustrates, it added, that the government and Farr have only a small difference between them on what if anything should go down with the mandate.

So, the challengers told the Court, they should get 40 minutes of the 90 minutes on severability, and the government and Farr should get 25 minutes each.   That, it added, is actually generous to the government and Farr as they seek to preserve all or most of the health care law.  If the Court prefers to give either the government or Farr more than 25 minutes, the motion suggested, it should switch it between them and not subtract it from the challengers’ allotment of 40 minutes.

There is no dispute among the parties over how the Court will allot time on the other issues the Court will be reviewing: 60 minutes each for the federal government and for the states/NFIB on the individual mandate’s constitutionality (being argued March 27, with no amicus involved on the issue), and 30 minutes each for the federal government and the states on the expansion of the Medicaid program for the poor (being argued as the second issue on March 28, with no involvement by an amicus or by the NFIB).

Since the parties are in disagreement on the argument array on the Anti-Injunction Act and severability questions, it will be up to the Court to decide what final arrangement should be made.  Presumably, that will be done some time in advance of the March arguments.

In association with Bloomberg Law

In association with Bloomberg Law

On February 21, the Court will hear oral argument in Taniguchi v. Kan Pacific.  At issue in the case is the interpretation of a federal statute that authorizes an award of costs for the services of interpreters to the prevailing party in a lawsuit – specifically, whether the statute extends to costs for translating documents as well as oral translation.

 Background

Kouichi Taniguchi, a Japanese baseball player, was visiting a resort in the Northern Mariana Islands when he fell through a wooden deck. He sued Kan Pacific Saipan, Ltd., the operator of the resort. After Kan Pacific won at summary judgment, the district court ordered Taniguchi to pay Kan Pacific the $5,257 it incurred in the case to translate contracts and other documents from Japanese to English. In awarding these costs, the court relied on 28 U.S.C. § 1920(6), which was added to the federal costs statute by the Court Interpreters Act of 1978 and authorizes district courts to tax as costs “compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under [28 U.S.C. § 1828].”

The Ninth Circuit agreed with the district court (and the Sixth Circuit) that the term “interpreters” in the statute includes, as the panel put it, “costs for services required to interpret either live speech or written documents.” On the other hand, the Ninth Circuit panel acknowledged that the Seventh Circuit, in an opinion by Judge Posner, had held that the proper reading of “interpreter” includes only live oral translation and that the “specificity” and “character” of Section 1920 counsels against including the translation of written documents in taxable interpreter costs. The Supreme Court granted Taniguchi’s petition to resolve the split.

Whose dictionary is best?

 Both merits briefs open with arguments about the meaning of the word “interpreters” as used in Section 1920(6).  Petitioner Taniguchi cites a raft of dictionaries that define “interpreter” as some variation of “one who translates orally,” and even points to a few dictionaries that announce the demise of the broader definition that respondent Kan Pacific urges – one that includes written translation. As you might imagine, Kan Pacific has found several dictionaries that support its position, and it complains that Taniguchi cites mostly abridged dictionaries, with correspondingly abridged definitions (that neglect to include written translation). Kan Pacific notes that Taniguchi has asked the Court to pay attention only to the “esp[ecially]” portion of the Webster’s and Black’s definitions, both of which define “interpreter” as someone who translates from one language to another “esp. orally . . . .”  So, the company argues, a complete (“non-esp.”) definition of “interpreter” includes someone who translates written materials.

After exhausting his dictionary-based arguments, Taniguchi explains that the case is about more than the “ordinary meaning” of interpreter. First, he argues that technical and professional terms of art should be defined narrowly to accurately reflect the term’s specific meaning within that context (here, professional interpretation and translation), even if a broader meaning exists for lay people. Second, he observes that there are real differences between interpreters and translators. For example, oral interpreters require social skills to interact with clients on the fly, and they often need to translate back and forth, in two directions, whereas document translation is typically one-way. The argument here is that, given the on-the-ground differences between translators and interpreters, Congress should have used the term “translators” if it wanted to cover translation services. (At this point, amici associations of professional translators and interpreters join the fray, with two supporting Taniguchi and one supporting Kan Pacific. The curious reader can consult those briefs for the details, but suffice it to say that Taniguchi’s amici tell us about the large differences between the translating and interpreting professions, while Kan Pacific’s amici tell us how similar they are.)

Kan Pacific relies heavily on “common usage,” explaining that the terms “interpreter” and “translator” often are used interchangeably. Beyond dictionaries, it cites a variety of newspaper articles and judicial opinions in which the term “interpreter” refers to the translator of written materials, and even a few Supreme Court cases that use “translator” when referring to live oral interpretation. Here, Kan Pacific also confronts the Seventh Circuit’s assertion that, as a matter of common usage, interpreters are speakers and translators are writers, by questioning the logic of that court’s reasoning. The Seventh Circuit confidently exclaimed that no one would call Robert Fagles’s famous translation of the Aeneid an “interpretation,” but – as Kan Pacific points out – no one would call translation of a foreign oral speech into English an “interpretation” either. Yet, even under the Seventh Circuit’s narrower reading of the statute, the person doing the translating (or, perhaps we should say, the “interpreting”) would be an “interpreter” under Section 1920(6).

 The Court Interpreters Act

 Given the indeterminacy of the textual and “common usage” arguments, the case may turn on broader issues of congressional intent surrounding the enactment of the Court Interpreters Act of 1978 – which, among other things, added subsection (6) to 28 U.S.C. § 1920, as well as Sections 1827 and 1828 to Title 28. As used in those sections – which establish programs for live interpreters in judicial proceedings – no one disputes that “interpreters” are primarily simultaneous oral translators who assist in court proceedings involving witnesses who do not speak English. Taniguchi therefore argues that because Section 1920(6) was enacted at the same time and in the same Act as Sections 1827-28, the term “interpreter” should be accorded the same meaning in all three sections – that is, as including only oral translation services.

Kan Pacific responds that the structure of Section 1920(6) suggests a more permissive reading because it authorizes an award of costs for “court appointed experts,” “interpreters,” and “special interpretation services under [§ 1828].” This construction, the argument goes, indicates that the term “interpreters” is more general than “special” interpretation services; thus, as used in Section 1920(6), that term should not be limited by its meaning in Sections 1827 and 1828. Kan Pacific also offers evidence from documents prepared by the Administrative Office of the U.S. Courts (AO) that suggest that the duties of “interpreters” under Sections 1827 and 1828 go beyond live oral translation and include the translation of documents for entry in evidence. But Taniguchi counters that the most recent AO Guide to Judiciary Policy states that the Court Interpreters Act does not address written translation.

Both sides complicate things by describing a variety of statutes, a rule of civil procedure, and federal agency guidelines to argue that a broad or narrow meaning of “interpreter” is appropriate within the larger context of federal law. For example, Taniguchi points to 15 U.S.C. § 649, which establishes a preference for hiring bilingual employees at the Office of International Trade who can “translate documents” and “interpret conversations,” and 42 U.S.C. § 254b(j)(1), which establishes grants to health centers with large non-English-speaking constituencies for “interpretation” and “translation” services. The point, of course, is that these statutes show that interpretation and translation are distinct activities. In Kan Pacific’s view, these provisions prove nothing. After all, its basic argument is that the terms are flexible and interchangeable, so that Congress’s decision  to use both terms could, in Kan Pacific’s view, reflect an “abundance of caution” or recognition that the two terms are somewhat overlapping professional titles, not proof that Congress views the terms as entirely distinct. But here Kan Pacific hedges its bets, explaining that Congress has from time to time used “translator” to refer to someone who does live oral interpretation (or is that “live oral translation”?).

 Cost shifting and the common law

 The Ninth Circuit apparently did not find the statutory text determinative.  Instead, it relied on what it called the “preference for the award of costs to the prevailing party” in Federal Rule of Civil Procedure 54(d), which provides that “[u]nless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney’s fees—should be allowed to the prevailing party.” That court reasoned that this preference gives district courts broad discretion in interpreting Section 1920 and taxing reasonable costs necessary for the litigation. Taniguchi disagrees, dusting off the common-law “American Rule” that parties to litigation generally bear their own costs. Taniguchi cites the Court’s landmark ruling in Alyeska Pipeline Service Co. v. Wilderness Society, which generally forbade federal courts from shifting costs (including attorney’s fees) in favor of the prevailing party without statutory authorization, even when doing so would further the underlying purposes of the substantive law. According to Taniguchi, the Ninth Circuit got it exactly backwards: Section 1920 is in derogation of the common law, and Rule 54 can do no more than authorize the award of “costs” that Congress has clearly granted. Thus, according to Taniguchi, if the question whether Section 1920(6) covers translation services is not clearly resolved by the statutory text and other tools of statutory construction, any ambiguity must be resolved against cost shifting.

Siding with the Ninth Circuit, Kan Pacific retorts that Section 1920 does expressly override the common law – that’s its whole point – and the only question is what Section 1920(6) means. In this regard, Kan Pacific points out that federal cost shifting has existed since at least 1853. So, in its view, the doctrine favoring narrow construction of statutes in derogation of the common law has no place here.

Analysis

 I’ll limit my analysis to three points. First, it is difficult to see any important policy ramifications in the outcome of this case. (It’s fun to note here what Kan Pacific said in its brief opposing cert.: “the issue is not especially important, and certainly not exceptionally important,” as Taniguchi had claimed in the petition.) The need to translate written documents arises infrequently in civil litigation, and the cost of translation is a minute component of civil litigation costs generally. Thus, I cannot discern an important policy need for (or against) cost shifting, particularly when compared to other, far more common litigation costs that are not shifted under Section 1920 (travel and depositions expenses, to name two that immediately come to mind).

Taniguchi claims that document translation costs should not be shifted because foreign governments would not want their citizens subjected to those costs. I’ll accept the tacit assertion that litigation involving foreign nationals often demands use of a translator. But is there any reason to think that foreign nationals tend to lose cases in which translation costs are incurred? After all, under Kan Pacific’s regime, when foreign nationals win, they likely will have their translation costs reimbursed.

There’s also no reason to think that Congress would want to encourage litigation involving translation costs. And if it did, we would not want to enact a two-way cost shifter, like Section 1920, because two-way cost shifting is at least as likely to discourage litigation as to encourage it. Rather, if you wanted to encourage litigation, you would enact a regime like 42 U.S.C. § 1988, under which prevailing civil rights plaintiffs are presumptively entitled to their costs, including attorney’s fees (see Newman v. Piggie Park), but prevailing civil rights defendants are not (see Christiansburg Garment Co. v. EEOC). The question here, however, is whether there should be a loser-pays rule for translation costs. To be sure, loser-pays rules tend to make poor and moderate-income plaintiffs less likely to sue, but the real impediment to suit for such prospective plaintiffs would be a loser-pays rule for attorney’s fees. In personal-injury cases like Taniguchi’s, those plaintiffs generally can hire a lawyer on a contingent-fee basis if they have a decent case, but they would likely be discouraged if they were required to pay their opponent’s attorney’s fees if they did not prevail.  So, the American Rule, as it applies to fees, brings down barriers to the courthouse in personal-injury cases. But it is very unlikely that the prospect of cost shifting for the small incremental cost of translation services will effectively bar the courthouse door to injury victims. In sum, the question presented here boils down to what “interpreters” means in Section 1920(6), with little or no additional public policy overlay

Second, though I doubt anyone cares, I’ll make a prediction: Taniguchi wins, with the American Rule serving as a tie breaker if needed. My gut tells me that if you asked most judges what the statutory text covers, they would say it covers the cost of oral translation. Then, if you told them about the dispute in this case, they would probably concede that the term could be construed to cover the work of document translators, even if not comfortably. So, what then? Well, the American Rule is a common-law rule, and the federal costs statute, regardless of its long pedigree, is at odds with the common-law rule, which otherwise prevails in the absence of statutory authorization for cost shifting. So, I’m guessing that the Court will demand something approaching a “clear statement” rule from Congress favoring cost shifting, not find it, and rule in favor of Taniguchi.

Third, and finally, why in the world did Taniguchi seek cert.? He had less than $5,300 at stake, not too much more than the costs of printing the briefs and appendices.  (Printing the appendices alone cost over $1200.) Taniguchi is not a repeat player: I doubt he’s anticipating another personal injury, and, besides, what’s the likelihood that his next deck plunge will result in another suit demanding document translation? Given that this case seems like a once-in-a-lifetime occurrence for Taniguchi, I can’t help paraphrasing Judge Posner and note that only a lunatic or a fanatic would pay lawyers to brief and argue a Supreme Court case lacking any significant public policy issue that’s worth only five thousand bucks. So, it’s a good guess that Taniguchi’s Supreme Court counsel is acting pro bono. Maybe that’s a fine thing, but only if you think the public good is always served by the resolution of a circuit split. And maybe not. After all, unless Kan Pacific’s counsel also isn’t charging, the Supreme Court litigation has imposed (and continues to impose) significant costs on Kan Pacific, all over a small amount of translation costs. Although Kan Pacific is more likely than Taniguchi to be a repeat player, unless Kan Pacific’s lawyers are working for free, Kan Pacific will be a loser in this case even if it wins. That would be pretty strange, don’t you think?

In association with Bloomberg Law

The Court refused to lift a stay of execution for an Ohio convict yesterday. A federal district judge had granted the stay (and the Sixth Circuit upheld it) because he was dissatisfied with the state’s changes to its lethal injection procedures.  James Vicini and David Bailey of Reuters have coverage, as do Andrew Welsh-Huggins of the Associated Press and Reginald Fields of the Cleveland Plain Dealer.

Finally, Justice Ginsburg’s recent interview on Egyptian television continues to garner commentary (video). In an op-ed for the Boston Globe, Jeff Jacoby responds to critics who accused Justice Ginsburg of “insulting the Constitution or being ‘mealy mouthed’ in its defense” during the interview. Ilya Somin of the Volokh Conspiracy uses Jacoby’s op-ed as a jumping-off point for a discussion of recent comments by both Justices Ginsburg and Scalia on foreign constitutions.

Briefly:

• At the Volokh Conspiracy, Kenneth Anderson discusses Kiobel v. Royal Dutch Shell, scheduled for argument later this month; he contends that Kiobel’s “basic question is whether the ATS is a statute about international law or whether it is instead a statute that enforces something we might call the ‘law of the hegemon.’”
• The editorial board of Bloomberg joins a growing chorus calling for the Court to allow cameras to film oral arguments.
• At this blog, Scott Dodson previews arguments in Wood v. Milyard, in which the Court will consider whether federal appellate courts can raise timeliness limitations sua sponte in habeas cases.
• Writing for ACSblog, Anthony Renzo criticizes the Court’s decision in Minneci v. Pollard, in which it refused to allow a federal inmate to bring suit against private prison corporation employees who had allegedly violated his Eighth Amendment rights, as both “bad law” and “promot[ing] a long list of bad policy choices.”
• Adam Klasfeld of Courthouse News reports on a recent decision by a federal district judge holding that the Office of the Solicitor General “may have misled the Supreme Court about resources the government provides wrongly deported immigrants who win their appeals” in its briefing in Nken v. Holder, argued and decided in 2009.
• In the Christian Science Monitor, Terry Hartle reviews James F. Simon’s new book about the relationship between President Franklin Delano Roosevelt and the Supreme Court in the New Deal era.
• Julie Watson of the Associated Press (via the Chicago Tribune) reports that supporters of a cross placed on San Diego’s Mt. Soledad in honor of combat veterans plan to file a cert. petition requesting reversal of a lower court decision deeming the cross unconstitutional.
• The Associated Press (via The (Columbus, Ind.) Republic) reports that the Court refused yesterday to block Mississippi’s execution of convicted murderer Edwin Turner, who had argued that he was mentally ill.
• Kristen Bonilla of the University of Hawaii News reports that Justice Sotomayor spent a week in Hawaii, during which she taught classes, served as a moot court judge, and met with faculty and students at the university’s law school.
• News Channel 5 in Nashville reports that retired Justice Sandra Day O’Connor spoke about her career yesterday at Middle Tennessee State University.
• The Associated Press (via the Chicago Tribune) reports that Justice Scalia will deliver an address at the University of Chicago Law School next week.

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