Locomotively questionable train analogies and a bench skeptical of the petitioner’s position marked Tuesday’s argument in Goodyear Tire & Rubber Co. v. Haeger, in which the court considered the validity of a $2.7-million award of attorney’s fees against Goodyear for its bad-faith litigation conduct in failing to produce certain documents relating to a defective tire.

Arguing for Goodyear, Pierre Bergeron argued that sanctions require a showing of “direct causation,” which he treated as synonymous with a “but-for” standard. Under this standard, however phrased, fees are available for excess or incremental costs incurred because of steps taken by the plaintiff that would not have been taken without the misconduct. In this case, that includes the costs to the Haegers from Goodyear’s non-disclosure of a “Heat Rise” test showing that the tire reached temperatures above 200 degrees at highway speeds.

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Petition of the day

By on Jan 10, 2017 at 11:28 pm

The petition of the day is:

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Issue: Whether the Senate Select Committee on Intelligence’s investigative report concerning the Central Intelligence Agency’s former program of detention, torture, and abuse of detainees became an “agency record,” subject to the Freedom of Information Act, when the Senate Committee transmitted it to several executive agencies with instructions for its wide dissemination and use.

Just a little over a month ago, the Supreme Court heard oral argument in a challenge to two North Carolina congressional districts, one of which a lower court had described as a “textbook example of racial gerrymandering.” One of the lasting impressions from that oral argument (as well as the Virginia redistricting case that was argued on the same day) was that the justices seemed to be tired of redistricting cases. But today the justices got involved (at least temporarily) in yet another redistricting case, once again from North Carolina, as they agreed to put on hold a lower court’s order that would have required the state to draw new maps and hold special elections this year to redress what the lower court found to be racial gerrymandering.

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Update at 12:19 p.m., January 11: This post has been expanded to include discussion of Alabama Democratic Conference v. Alabama.

Judge William H. Pryor Jr. of the U.S. Court of Appeals for the 11th Circuit is widely considered, along with Judge Diane Sykes, to be the front-runner to replace the late Justice Antonin Scalia. President-elect Donald Trump mentioned both judges by name during a primary debate shortly after Scalia’s death, and both have the conservative bona fides necessary to allay concerns about, as Pryor himself has put it, adding “more Souters” to the court.

Pryor, 54, earned his B.A. from Northeast Louisiana University in 1984 and his J.D. from Tulane University Law School 1987. Pryor clerked for Judge John Minor Wisdom on the U.S. Court of Appeals for the 5th Circuit and then worked as a private attorney until 1995. He served for two years as deputy attorney general of Alabama before becoming attorney general in 1997. As attorney general, he became known for his removal of Alabama Chief Justice Roy Moore for Moore’s refusal to follow a federal court order to remove a Ten Commandments monument from the state Supreme Court building.

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Argument transcripts

By on Jan 10, 2017 at 2:37 pm

The transcript in Expressions Hair Design v. Schneiderman is here; the transcript in Goodyear Tire & Rubber Co. v. Haeger is here.

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Next Tuesday’s argument in Midland Funding v. Johnson brings the justices to the sordid world of consumer debt collection. In that world, a small group of relatively large “debt buyers” have come to amass portfolios that include the past-due obligations of millions of consumers, representing billions of dollars of unpaid obligations. The problem comes from the reality that a large share of that debt is not legally collectible because the statute of limitations (typically six years) has expired. The debt has value (at least to the extent of several cents on the dollar) because of the possibility that the debt buyer ultimately will persuade the consumer to make some payment on the obligation even though the opportunity for legal enforcement has passed.

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The U.S government targets noncitizens with criminal convictions for removal from the United States. These efforts have allowed President Barack Obama’s administration to deport approximately 2.5 million noncitizens during Obama’s eight years in office, more than any other president in American history. On several recent occasions, the Supreme Court has found that the administration went too far and has set aside orders of removal of criminal offenders that it has found to be inconsistent with the immigration statute. For example, in Mellouli v. Lynch, in 2015, the court held that a state misdemeanor conviction for possession of drug paraphernalia did not justify removal. In 2013, in Moncrieffe v. Holder, the justices found that a lawful permanent resident’s conviction for possession of a small amount of marijuana – now legal in many states – did not mandate removal. Next week, the Supreme Court will hear oral argument in Lynch v. Dimaya, another criminal-removal case, but one with potentially far-reaching constitutional implications.

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There are some oral arguments in which it becomes apparent that the court made a mistake in granting certiorari. Monday’s argument in Lewis v. Clarke is one of those cases. As described in my argument preview, the case involves a car accident in Connecticut in which the defendant was an employee of an Indian tribe, which asserted a defense of sovereign immunity. The case exposes some interesting problems in the court’s jurisprudence regarding sovereign immunity generally, the characterization of claims for sovereign immunity purposes and the scope of Indian tribe immunity. But the oral argument leaves the impression that the court may have bitten off more than it can chew. Given the absence of a ninth vote, the most likely result is a punt.

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If there was a single moment at Monday’s oral argument in Nelson v. Colorado during which the likely outcome of the case became clear, it may have been Chief Justice John Roberts’ statement, just under halfway through Colorado Solicitor General Frederick Yarger’s argument, that “you keep talking about compensation. The issue is restitution.” Although the Chief Justice’s statement was hardly one of the funnier moments in an often chuckle-filled 56-minute argument session, it cut to the heart of the dispute between the petitioners, Shannon Nelson and Louis Alonzo Madden, and the respondent, the state of Colorado.

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Tuesday round-up

By on Jan 10, 2017 at 6:32 am

Today the court will hear oral argument in two cases. The first case on the agenda is Expressions Hair Design v. Schneiderman, a First Amendment challenge to a New York law that allows merchants to give discounts to customers who pay in cash, but prohibits the imposition of surcharges for customers who use credit cards. Ronald Mann previewed the case for this blog. Another preview comes from Liza Carens and Jenna Scoville at Cornell’s Legal Information Institute.

Next up is Goodyear Tire & Rubber Co. v. Haeger, which explores the limits of a court’s inherent power to impose sanctions for bad-faith conduct during discovery. Howard Wasserman had this blog’s preview; Michelle Korkhov and Anna Marienko at Cornell also preview the case.

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