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.

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.

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.

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.

Scalia's Pro-Business Legacy

By Professor Elizabeth Pollman 

This is an excerpt from an op-ed Professor Pollman wrote for The Atlantic.

 
Justice Antonin Scalia took his seat on the bench in 1986, during one of the greatest bull markets and the heyday of corporate mergers and acquisitions. In the three decades he served on the high court, he helped raise barriers for employees and consumers and he helped strike down limits on corporate political spending in the U.S. democracy. He will be remembered for his intellect and personality, but he should also be remembered for increasing the power of business in society.

For example, in Walmart Stores, Inc. v. Dukes, the Supreme Court denied 1.5 million women the ability to bring a class action against Walmart for unequal pay or promotions on the basis of sex. A class action would have allowed all of the women to join together in one gender discrimination lawsuit, brought by one set of lawyers who would be paid out of any recovery from the suit. These plaintiffs might not otherwise be able to surmount the logistical and economic obstacles to bring 1.5 million individual suits against one of the world’s largest companies. Without the class action, they might not even be aware of their own claims or the patterns of discrimination.

Read the full story here.

Politics and the Supreme Court

By Professor Eric Miller

Prof. Miller is guest blogging on Prawfsblawg, where this post originally appeared.

I had thought of writing something about Justice Scalia. I was not a huge fan of his politics; and I thought the manner in which he expressed himself both in his opinions and public appearances often went out of his way to diminish his opponents. If you were a criminal defendant, a person of color, a woman, a member of a labor union, or gay (the list is non-exhaustive), then at some point Justice Scalia did something that was materially harmful to your interests, and he usually disparaged you (or your legal proxy) for arguing for those interests in the forum of constitutional law. The fact that some people found him personally charming seems immaterial to those of us hurt by his decisions and outraged or disappointed or just plain unamused by his rhetoric. Donald Trump is also a personally charming man whose rhetoric and actions have malicious consequences, and I'm no longer a Tom Brady supporter given his "nice guy" defense of Trump. It's nice that the institution of the Court got to operate in a civil manner because he was not personally offensive to the other justices (or to his clerks or his former law school colleagues, it seems), but the great Justice could be notoriously churlish to those of us who were not a member of those clubs.

Ohio Gov. John Kasich is Really Running for Vice President

By Professor Justin Hughes
Originally posted on The Los Angeles Daily News

Ohio Governor John Kasich just did very well in the New Hampshire primary — second place behind Donald Trump and first among the pack that might be called “mainstream” Republican candidates. That success will hide from view something that John Kasich knows all too well: that by running in these primaries Kasich has made himself the GOP’s most obvious and most perfect choice for a vice presidential nominee. If Trump heads the ticket, Kasich brings serious foreign affairs, Washington and executive government experience, not to mention a sensible, moderate voice. And he helps galvanize Ohio’s critical swing vote — ask any pundit or politically mindful Ohioan: you have to go back to 1960 to find someone elected president who did not carry the Great State of Ohio.

Kasich would bring that same formula to a Cruz campaign, a Rubio campaign, a Bush campaign or a Carson campaign.