Wednesday, March 23, 2016

The Apple/FBI Case: A Few More Thoughts Before the March 22 Hearing

By: Professor Simona Grossi
Professor Grossi is guest posting on The Huffington Post, where this originally appeared.

As I explained in my posting of March 14, the Government’s request for a decryption order addressed to Apple invoked the All Writs Act. That Act provides: “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. §1651. This text was designed to vest federal courts with the full range of remedial judicial authority one would expect a court to possess. That authority is an authority to enforce the rule of law within appropriate filed cases, not an independent authority to create new law. Hence, in a properly presented case, a federal court may issue a writ of mandate to require a party to comply with the applicable legal standard. But if there is no law to enforce, if there is no applicable legal standard, the All Writs Act does not vest a federal court with the authority to create one.

Tuesday, March 22, 2016

Zimmerman’s Amicus Brief Cited in Supreme Court Case over Class Action Certification

Professor Adam Zimmerman's amicus brief Complex Litigation Law Professors in Support of Respondents: Tyson Foods, Inc. v. Bouaphakeo is cited in the Supreme Court slip opinion in the case.

Tyson Foods involved whether and how plaintiffs could use statistics in class actions. In doing so, the court relied on the amicus brief Zimmerman wrote with Professor Sergio Campus on behalf of complex litigation scholars. The brief explains the many ways statistics are used as evidence in complex litigation -- and cautions against a broad opinion barring their use. In its opinion, the majority cited the brief:

It follows that the Court would reach too far were it to establish general rules governing the use of statistical evidence, or so-called representative evidence, in all class action cases. Evidence of this type is used in various substantive realms of the law. Brief for Complex Litigation Law Professors as Amici Curiae 5–9; Brief for Economists et al. as Amici Curiae 8–10. Whether and when statistical evidence can be used to establish classwide liability will depend on the purpose for which the evidence is being introduced and on “the elements of the underlying cause of action,” Erica P. John Fund, Inc. v. Halliburton Co., 563 U. S. 804, 809 (2011)."
Read the full brief below.

Monday, March 7, 2016

Criminal Justice Issues & Election 2016

By Professor Laurie Levenson

Although there are critical issues facing our criminal justice system today, precious little has been said by this election’s Presidential candidates. However, if one checks their websites, important differences among the candidates emerge.

Wednesday, March 2, 2016

If You're Going to Be a Single-Issue Voter, Make That Issue the Supreme Court

By: Professor Jessica Levinson
This is an excerpt from an op-ed Professor Levinson wrote for Pacific Standard

Justice Antonin Scalia's unexpected death has thrown the importance of the Supreme Court into focus. Amid all the partisan bickering and obstructionist, political posturing we should take a moment to talk about why the composition of the United States' highest-ranking court matters. Simply put, the people who sit in its nine chairs can have lasting power far beyond the man (or perhaps, someday, woman) who appoints them.

First, while presidents can hold office for a maximum for eight years, Supreme Court justices (along with all lower federal judges) hold lifetime appointments. Justices can—and often do—stay in office for decades.

Read the full article here.