Forum Convenience May Brush the Merits

Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp.

Sincohem Int. Co. Ltd., a Chinesse state-owned importer brought suit in a Chinese Admiralty Court, arguing that a Malaysian shipping company caused it to make payments on the basis a falsified a bill of lading. The Malaysian company was shipping U.S. goods, and brought charges in U.S. District Court against Sincohem for negligently misrepresenting their ship’s fitness and causing delay due to the ship’s subsequent arrest. That court found subject matter jurisdiction (admiralty) and believed that limited discovery might give the Malaysian company an opportunity to show personal jurisdiction. Before allowing such discovery, however, the court transferred it under the forum non conveniens doctrine. The Third Circuit overturned this decision.

A federal court can dismiss for forum non conveniens when another forum has jurisdiction and a trial in the former would “establish … oppressiveness and vexation to a defendant … out of all proportion to plaintiff’s convenience,”or for administrative and legal reasons. When the forum selected is the home forum the party moving to change bears a heavy burden. Courts cannot assume jurisdiction for the purposes of ruling on the merits, but there is no mandatory sequencing of judicial matters and a court may dismiss for lack of personal jurisdiction without first reaching the question of subject matter jurisdiction. Because forum non conveniens denies a merits evaluation, a court may dispose of a case under this doctrine without reaching subject-matter or personal jurisdiction. That being the case, such orders do not fall within the collateral order exception to the firm final judgment rule (a party may not appeal until the district court has rendered a final judgment). There will be some overlap between the merits and the forum non conveniens evaluation, but “threshold issues [may] involve a brush with ‘factual and legal issues of the underlying dispute.’” “Resolving a forum non conveniens motion does not entail any assumption by the court of substantive ‘law-declaring power,’” rendering it a threshold, nonmerits issue.

Gulf Oil v. Gilbert, which largely caused the confusion in this case stated that the doctrine “can never apply if there is absence of jurisdiction” and that “in all cases in which forum non conveniens comes into play, it presupposes at least two forums in which the defendant is amenable to process.” The Court disposes with the first statement by characterizing it as a tautological statement that once a court determines that there is no jurisdiction the case must be dismissed. The second one is read to mean only that a court’s statutory power to entertain a suit does not settle the question of whether it must do so. Since proceedings are already underway elsewhere, this is no occasion to consider whether a court conditioning forum non conveniens dismissal on waiver of jurisdictional objections. In sum, courts may take the less burdensome route

File Your 1983 Actions With Reckless Abandon

Wallace v. Kato

Handy was picked up for a shooting death and signed a confession which he later attempted to suppress as the product of an unlawful arrest. He successfully argued on appeal that (1) his voluntary accompaniment to the police station escalated to an arrest before there was probable cause, and (2) that the unlawful arrest was not sufficiently attenuated to allow the evidence to be admitted. Handy then filed a §1983 (civil rights violation) suit for damages for his unlawful arrest which was held to be time barred on the theory that his cause of action accrued at the time of his arrest and not at the time that his conviction was set aside.

Federal law looks to state law to determine the statute of limitations for personal-injury torts which, under Illinois law, is two years. The date from which that period begins to run in a §1983 action, however, is a matter of federal law, conforming in general to common-law tort principles. Therefore, the standard rule applies that accrual occurs “when the plaintiff has ‘a complete and present cause of action,’” that is, “when the plaintiff can file suit and obtain relief.”

Common law treats false arrest and false imprisonment differently, perhaps on the basis that the victim may not be able to sue while he is imprisoned. Limitations begin to run when the false imprisonment ends. False imprisonment ends once the victim begins to be held legally (ie. issuance of process). Handy argues that his illegal detention tainted his later, lawful, detention. To whatever extent the Court is willing to entertain this argument (not much) it argues that this could only apply to damage calculation and not useful to determine the beginning of accrual.

Once Handy was processed his detention was no longer unlawful and the previous unlawful detention becomes part of the damages in malicious prosecution, which remedies only the wrongful institution of legal process. Handy could have sued for false arrest on the first day of his incarceration, and the statute of limitation s began to run when he appeared before a magistrate.

Under Heck v. Humphrey, malicious prosecution requires “favorable termination of criminal proceedings” in order to prevent civil tort actions from becoming a vehicle for challenging outstanding criminal judgments. The Court assumes that this would apply to the commencement of the statute of limitations. In this case, however, there was only “an anticipated future conviction.” Courts will stay a preemptive civil action until the criminal case or the likelihood of such a case has ended. §1983 actions, however, sometimes accrue before a conviction is set aside, leaving the time between conviction and “favorable termination of criminal proceedings” during which Heck bars the action, but the statute of limitations has already begun to run. Worse yet, no state law provides for tolling that period in any similar circumstance, and (as mentioned above) federal law looks to state law to determine the statute of limitations.

The Court would not adopt a federal tolling rule because no one would know whether it would apply until a §1983 action was filed, leaving it to the defendant’s discretion to create the circumstances that result in tolling, and to spring a §1983 action on the unwitting State. Nor does the Court accept the idea that equitable tolling should be employed to prevent a criminal defendant from having to split his attention between his criminal and civil cases. In any case, some defendants will surely file §1983 actions before being convicted, so whatever prudential problems there may be with the majority’s rule will exist even if another rule is adopted. The Court also argues against Justice Stevens, saying that any rule based on the petitioner’s opportunity to file a habeas action is unduly prospective and indeterminate. In pure unabashed dicta the Court asserts if the petitioner’s §1983 action were dismissed, and Heck later prevented him from refilling then Heck would directly violate the intent of §1983, implying that courts should not allow this to happen.

Justices Stevens and Souter would hold that whereas Heck disabled civil actions in favor of habeas corpus actions, since because, under Stone v. Powell, no habeas action was available to Handy, the Heck principle does not apply. Stevens accuses the majority of pointing to aberrant examples when suggesting that federal habeas petitioners sometimes succeed in arguing that Stone does not apply.

Justices Breyer and Ginsburg would employ “equitable tolling” to toll the statute of limitations while a petitioner is fighting the criminal charges against him. The majority’s method, he argues, would require criminal defendants to file all §1983 actions early, even if they would ostensibly be barred by the Heck rule, and those actions would have to consider matters being litigated elsewhere for a court to determine whether to issue a stay. Res Judicata could give these premature decisions long lasting effect, a fact that might entice courts to let the matters linger. The rule would be fair, support the purpose of §1983, and provide all of the benefits of a federal rule on the matter. Finally, there is no notice problem because the rule would only apply where the basis for the later §1983 actions were being litigated in state court, providing the state with notice of the petitioner’s claims.

It’s long, but the first part of the opinion is metaphysics and the second is advanced criminal procedure. I hope this makes sense when I come back to read it.

Sirens' Song

"Because I believe that the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of our Fourteenth Amendment jurisprudence, I would be open to reevlauating its meaning in an appropriate case." – Justice Thomas, dissenting (Saenz v. Roe, 526 U.S. 489)

We are probably better off as things are, I don't want Justice Thomas rewriting the Fourteenth Amendment, and this could upset too much of our law to ever happen...

...but...

When is a New Rule Applicable on Collateral Review?

Whorton v. Bockting

Bockting’s stepdaughter, Autumn, who was 6 years old, told her mother that Bockting sexually assaulted her. Autumn spoke to a rape counselor and recreated the acts with anatomically correct dolls. When Autumn was too distressed to be sworn at trial the State moved to allow her mother and a detective to recount her statements. Nevada allows out-of-court statements by a child under 10 to be admitted if the court finds that the child is unavailable or unable to testify and that “the time, content and circumstances of the statement provide sufficient circumstantial guarantees of trustowrithiness.”

When this case last reached the Supreme Court the controlling precedent on the constitutionality of these sorts of laws, in light of the Confrontation Clause, was Ohio v. Roberts, which held that the constitution allowed such evidence if the statement bore sufficient indicia of reliability, either because the statement fell within a firmly rooted hearsay exception, or because there were particularized guarantees of trustworthiness.” After Bockting’s case was decided on these grounds, and as his habeas case was pending, the Court overruled Roberts, in Crawford, deciding that “[t]estimonial statements of witnesses absent from trial” are admissible “only where the declarant is unavailable and only where the defendant has had a prior opportunity to cross-examine [the witness].” Specifically, in that case, the Court found that the Confrontation Clause did not make a judgment on the desirability of reliable evidence, but on how the reliability of that evidence would be tested; cross-examination.

The Crawford rule would not have admitted Autumn’s statements. Under Teague v. Lane if the Crawford rule was in existence at the time of his conviction, or a “watershed” rule that implicated fundamental fairness, it should be applied to cases on collateral review. New rules only apply to cases on direct review. The Crawford rule was clearly a “new rule,” one that was not “dictated” by precedent existing at the time; though the Crawford Court noted that its decision was consistent with the outcome of all prior cases, “the explicit overruling of an earlier holding no doubt creates a new rule.”

For a rule to meet the “watershed” it must (1) be necessary to prevent “an ‘impermissibly large risk’” of inaccurate conviction, and (2) alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.” Only the right to counsel for indigents charged with a felony has been held necessary to prevent an “impermissibly large risk” of inaccurate conviction, and is not comparable to the rule announced in Crawford. As for the second factor, the question is whether the Crawford rule is “one without which the likelihood of an accurate conviction” is not just diminished, but “seriously diminished.” Additionally, the rule must not only be “based on” a bedrock procedural rule, or be “fundamental,” but must “must itself constitute a previously unrecognized bedrock procedural element that is essential to the fairness of a proceeding.” While the Crawford decision was important, it is not of the same category as the right to counsel and lacks “primacy” and “centrality” of a watershed rule.

No Generalized Standing to Sue Under Elections Clause

Lance v. Coffman

In 2000 the state of Colorado was unable to pass a redistricting plan, so the courts of that state crafted one. The Elections Clause of the Constitution provides that the “Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” When the Colorado State Assembly managed to pass a redistricting plan in 2003 the Colorado Attorney General argued, and the Colorado Supreme Court agreed, that its implementation would violate the clause of the Colorado Constitution providing that redistricting should only take place once every 10 years, and that the State Supreme Court’s plan was as binding as if it had originated in the State Legislature.

The Court already found last February (in another per curium opinion) that federal courts were not barred from hearing the case under the “Rooker-Feldman” doctrine, which reserves final state court judgments for the Supreme Court unless “(1) ‘the party against whom the doctrine is invoked must have actually been a party to the prior state-court judgment or have been in privity with such a party’; (2) ‘the claim raised in the federal suit must have actually been raised or inextricably intertwined with the state-court judgment’; and (3) ‘the federal claim must not be parallel to the state-court claim.’” The decision was based on reversing the lower court’s decision that the plaintiffs satisfied the first criteria through their associative interest in the case, arguably conflating the first criteria with general preclusion issues. This time, on remand, the lower court held that the suit was barred by issue preclusion because the plaintiffs “stand in privity with the Secretary of State and the General Assembly,” who lost before the Colorado Supreme Court.

The Court skips right over any discussion of general preclusion, and goes straight to standing, an issue addressed in a concurring opinion. Courts must first address jurisdiction, including standing, which in turn requires injury in fact, causation, and redressability. To have standing a plaintiff must have more than “a general interest common to all members of the public.” “Refusing to entertain generalized grievances ensures that ‘there is a real need to exercise the power of judicial review’ in a particular case, and it helps guarantee that courts fashion remedies ‘no broader than required by the precise facts to which the court’s ruling would be applied.’”

In this case “the only injury plaintiffs allege is that the law—specifically the Elections Clause—has not been followed. This injury is precisely the kind of undifferentiated, generalized grievance about the conduct of government that we have refused to countenance in the past.” The Court points out that its previous cases construing the term “Legislature” were brought by a “relator” on behalf of the State, so standing was not an issue.

Equitable Powers of a Bankruptcy Court

Marrama v. Citizens Bank of Mass.

Chapter 7 bankruptcy allows a debtor to retain possession of his property while Chapter 13 does not. Chapter 13 bankruptcies can be converted into chapter 7 bankruptcies and vice versa. A debtor who proceeds in bad faith had been held bared from converting a Chapter 13 bankruptcy into a Chapter 7 bankruptcy, but the rule does not always apply the other way around. Marrama created a trust consisting of all of his property and made misleading statements about his principal asset, a house in Maine, and was denied an absolute right to convert his Chapter 13 bankruptcy into a Chapter 7. The Court of Appeals noted that the statute provides that a debtor “may” convert a case under Chapter 7 to a Chapter 13 banrkuptcy. Marrama argues that the conditional grant (“may”) gives him the discretion to chose the course of his bankruptcy proceedings, not the courts

§109(e) imposes a limit on the amount of indebtedness that an individual may have in order to qualify for Chapter 13, and §1307(c) provides that a Chapter 13 proceeding may be dismissed or converted to a Chapter 7 proceeding “for cause,” including 10 such causes. The 10 causes do not list bad faith, but the words “for cause” have been interpreted to include it and that those who proceed on bad faith are not a member of the class of “honest but unfortunate debtor[s]” for whose benefit the statute was passed. Without defining “bad faith” the Court argues that no provision limits the court’s discretion and inherent power to take appropriate responsive action – implicitly holding that the 10 listed justifications are not exclusive. §105(a) seems to support this by disclaiming any attempt to “preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules or to prevent an abuse of process.”

Justices Alito, Scalia, Thomas, and the Chief Justice argue that the code limits a debtor’s right to convert his case in only two ways: (1) it may only be converted once; and (2) a debtor must meet the conditions for a debtor under whichever chapter to which he wishes to convert his case. Chapter 11, for example provides not that a debtor “may convert” but that “the court may convert,” suggesting that, in the first case, the debtor retains the discretion to convert. In those cases the court’s discretion is limited to the 10 listed justifications. The dissent also characterizes the majority as holding that if a debtor’s case may be dismissed “for cause” (whatever cause that may be) he is not a debtor in that class. The dissent argues that the conditions to be a debtor in that class are clearly specified, and whatever the future of such a claim may be, if the debtor satisfies those conditions he may at least proceed to a foreseeable dismissal. Meanwhile, the dissent does not agree that this would be “an empty exercise,” especially where the case would be dismissed on the basis of judicial discretion, as opposed to a compulsory dismissal. In any case “a bankruptcy court … is guided by equitable doctrines and principles except insofar as they are inconsistent with the Act,” Norwest Bank Worthington v. Ahlers.

Is Statute of Limitations Tolled While Awaiting Certiorari?

Lawrence v. Florida

28 U.S.C. §2244 imposes a one year statute of limitations on federal habeas corpus petitions, tolled while an “application for State post conviction or other collateral review” “is pending.” Lawrence was convicted of killing Finken and sentenced to death. 364 days after his sentence became final, he filed an appeal, which was upheld, and he then appealed to the Supreme Court. That appeal was denied by the Florida Supreme Court, and Lawrence waited 113 days to file a habeas petition. Therefore his habeas petition can only be timely if his application was “pending,” and therefore the statute of limitations tolled, during the Court’s consideration of his petition for certiorari.

State post-conviction applications remain pending until the application has achieved final resolution through the State’s post-conviction procedures. This makes sense in light of the fact that state prisoners need not petition the Supreme Court in order to exhaust state remedies for the AEDPA. Other sections refer to “direct review” which has been held to include certiorari petitions to the Supreme Court and the difference in language suggests a deliberate effort to convey particularized meaning. The Court notes providing tolling for the time awaiting a petition for certiorari would encourage those petitions as a delay tactic, and that this reading of the law does not create any more duplicative work than the alternate reading would.

Assuming, as both parties agree, that equitable tolling is available under §2244, Lawrence must show (1) that he has been pursuing his rights diligently , and (2) that some extraordinary circumstance stood in his way.” The Court does not accept either that the legal confusion over the AEDPA’s tolling periods, nor his lawyer’s mistake about the deadline (even though the lawyer was state-appointed), justifies equitable tolling. Lawrence also argues that his mental capacity justified his reliance on his lawyer, but he has made no showing of such an incapacity.

The one year limitation for habeas petitions does not include the time an application for State post-conviction review spends pending before the Court. The tolling period begins after an application for certiorari is refused or the case is decided by the Court. The law refers to “application[s]” for State post-conviction review, so the majority’s textual reading does not go uncontested. If judgments of conviction are not final until the Court decides or denies certiorari, the limitation period should not begin before those cases are concluded. Anyway, the text of the statute should be contrasted with another statute that expressly intended to exclude these cases. The dissent also distinguishes exhaustion as based on claims which may be raised, from tolling which concerns procedures which may be invoked The dissent also argues that duplicative filing would not occur under its own reading of the clause, as it would (concededly) occur under the majority’s reading. Finally the dissent points out that while the majority suggests that equitable tolling may provide a solution, it emphasizes that it declines to hold that equitable tolling is available under §2244.

Testing Predatory Buying vs. Predatory Pricing

Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co.

Ross-Simmons, a sawmill, alleges that Wayerhaueuser violated the Sherman Act by attempting monopolistic practices by using its dominant position to drive up the prices. Here, Wayerhauser argues that the standard for predatory pricing in Brooke Group Ltd. V. Brown & Williamson Tobacco Corp also applies to claims of predatory bidding. Recognizing a two stage method of predatory pricing the Brooke Court held that to recover for predatory pricing a plaintiff must show (1) the prices were below costs, and (2) the competitor had a dangerous probability of recouping it investments ostensibly by engaging in supra-competitive pricing once it drove out competition.

The first factor is necessary because anything else would either be genuine competition or beyond the “practical ability of a judicial tribunal to control without

courting intolerable risks of chilling legitimate procompetitive conduct.” The second is meant to show an intent to engage in predatory pricing (since it would be highly unlikely that it would do so unless it could recover its losses). These two factors are necessary components of a market injury. Monopsony is a monopoly on the buy-side of the market, exercised by bidding up the prices to drive out marginal bidding. Neither predatory pricing or predatory buying is commonly a viable strategy, and the methods of both employ actions that are the essence of competition. Additionally, failed attempts at predatory pricing and predatory bidding can benefit consumers, justifying a narrow rule. Predatory bidding presents less of a threat of consumer harm. In short, monopolistic and monopsonistic practices are similar enough, both methodically and practically, that the Court deems is appropriate to apply the same test to both.

Penalties Based on Facts Not Found by a Jury

Cunningham v. California

California’s Determinate Sentancing Law (DSL) allows the trial judge, not the jury, and by a preponderance of the evidence, to find the facts that expose a defendant to an elevated sentence. Cunningham was convicted of continuous sexual abuse of a child under 14, which carries a 6 to 12 year sentence, with an elevated sentence of 16 years if accompanied by aggravating factors. Interestingly, the Appellate Court upheld the determination after striking one aggravation element, on the basis that with only one mitigating element, only two aggravating elements were required for an elevated sentence. This case challenges that law under the Sixth Amendment right to a jury trial.

California’s scheme provided three tiers of sentencing, the greatest of which could only be imposed after finding “aggravating circumstances,” guided by a non-exhaustive list, defined to mean “facts” justifying the greatest prison term. Facts which are elements of the crime are excluded. That statutory enhancements (as opposed to aggravating circumstances) must be pleaded does not change the matter because “a fact underlying an enhancement … cannot be used to impose an upper term sentence and, on top of that, an enhanced term.”

In Aprendi v. New Jersey the Court declared that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” In Blakely v. Washington the Court held that such an extension, though outside the standard range, was within the maximum of that type of crime, because the “statutory maximum” means the maximum sentence a jury may impose “solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” That is, not all the facts the jury could have found, but all the facts it did find. Additionally, Blakely allowed no refuge in the fact that the list of aggravating circumstances was non-exhaustive, because any additional factors were not authorized by the jury. United States v. Booker extended this rule to the federal government, while recognizing that if the federal guidelines were not binding the rule would not apply. In that case the court substituted a reasonableness requirement for the portion of the law making the federal sentencing guideline mandatory.

The California court upheld the law in the face of these precedents on the basis that, in effect, the law only allowed court to exercise the kind of discretion traditionally left to courts and judges, because it reduced penalties over the previous scheme, and because defendants had no right to believe they would not be subject to the maximum penalty. That the California court characterized the law as a reasonableness restraint, similar to that imposed on the federal law, does not save the California statute because “the reasonableness requirement Booker anticipated for the federal system operates withinthe Sixth amendment constraints … not as a substitute.” “Booker’s remedy … is not a recipe for rendering [the] Sixth Amendment case law toothless.” At this point California could simply allow judges to exercise “broad discretion,” and leave everything else in place.

Justices Kennedy and Breyer, dissenting, suggest distinguishing between those sentencing enhancements based on the crime and those based on the nature of the offender. Justice Kennedy also notes the irony that greater judicial discretion would violate the Sixth Amendment less. Judges are perfectly well positioned to take the long view on sentencing, and (as opposed to juries) are equipped to evaluate factors that do not bear on guilt.

Justices Alito, Kennedy, and Breyer argue, to a great extent, that the California law, by its terms and by construction, is essentially identical to the discretionary system in the federal courts; that nothing about a non-exhaustive list requires a judge to find “facts” before increasing a sentence; and that the reasonableness requirement permits the elevation of a minimum-offender to an intermediate sentence, on the basis of facts found by the judge.

Contradictory Pleadings in Westfall Actions

Osborn v. Haley

The Wesfall Act provides that when a federal employee is sued for a common-law tort claim for actions undertaken within the scope of his employment, upon certification of that fact by the Attorney General, the employee is dismissed, the United States is substituted, and the action is removed to federal court. The Attorney General’s certification is “conclusive for purposes of removal.” In this case the U.S. Attorney certified that a federal employee “was acting within the scope of his employment … at the time of the conduct alleged” and then after removal, proceeded to deny that the alleged actions ever occurred. The federal court then dismissed the Westfall certification and remanded the case.

The District Court’s ruling denying substitution of the United States as defendant qualifies as a reviewable final decision because it decided a contested issue, which was important and separate from the merits of the action, and which would be effectively unreviewable later in the litigation. (Cohen v. Beneficial Industrial Loan Corp). Generally an order remanding to the state court where a case originated is not reviewable, but only if based on §1447 - improvidence and lack of jurisdiction.

Where the Attorney General certifies the scope of employment courts have no jurisdictional discretion, but where a court makes the determination they do, as jurisdiction is not “conclusively” established. The Attorney General’s determination can only be “conclusive” if courts are prohibited from remanding the case. Even in cases where the court later determines that the employee was acting outside the scope of their employment, and the case is left without federal jurisdiction, a federal court can exercise its discretion to retain jurisdiction.

To hold that the Attorney General may not contest the incident while certifying that it occurred during the course of employment would make the entire case, jurisdiction to merits, subject to the plaintiff’s imagination. Where this would lead to odd results, courts are already empowered to overrule the certification on the basis of factual findings. In cases where this would end the case on the merits without ever reaching a jury there is no Seventh Amendment violation because the right to jury trial does not extend to proceedings against the sovereign.

Substitution of the United States is not improper simply because the Attorney General’s certification rests on an understanding of the facts that differs from the plaintiff’s allegations, and the U.S. must remain the defendant until the court determines that the employee, in fact, was operating outside the scope of employment, and that the case may not ever be remanded.

Justice Souter argues that whereas decisions remanding a case to the state court from which it was removed is unreviewable, they should be unreviewable even on the basis of mistake as to jurisdiction. The order resubmitting Haley as defendant was not such an order, it was a substitution order, and allowing review of this sort of order effectuates congressional intent to codify the common law tort immunity available to Federal employees.

Justice Breyer believes that the Attorney General may only certify when he accepts, at least conditionally, the existence of “some kind of incident’” and may not do so where the incident, if it took place at all, fell outside the scope of employment (Justice Breyer later flips this to require the Attorney General to assert that if the incident took place it must necessarily have taken place within the scope of employment). The act allows certification where “at the time of the incident out of which the claim arose” the original defendant was acting within the scope of employment. The Westfall Act’s purpose was to overturn a Supreme Court decision requiring that an agent not only be acting in the scope of employment, but exercising discretion. Where the dispute is over facts as well as law, for the purpose of immunity disposition, the defendant must take the plaintiff’s facts as asserted, even if these facts prove determinative over a federal claim as well as a state claim, though “violation of a federal statute” is explicitly exempted. When Willingham v. Morgan said that federal defendants should have an opportunity to present their version of the facts to a federal, not a sate court,”

Justices Scalia and Thomas, dissenting, argue that 28 U.S.C. §1447 states that and order remanding a case to the State court from which it was removed is not reviewable, and it means just that. In Thermtron Products the Court exempted cases remanded in exercise of discretion, appending “under this subsection” to the end of the phrase. Then cases where the reason was mischaracterized as one requiring mandatory remand were exempted. The majority here holds that §1447 does not apply where the remand order is reviewable. Later, Justice Scalia concedes that these the remand to be “erroneous” but reminds that the Court has held that remand based on erroneous conclusion was unreviewable. Justice Scalia also questions whether the remand order could be reviewable even if the Attorney General’s determination were overturned.

What is particularly interesting here is how Justice Scalia’s argument demonstrates so well the virtues of his particular brand of originalism, and also that he accuses the majority of “uncompromising pursuit of technical perfection.”

Google Wants Me to Log In

Google wants me to start using my google login to use blogger. I am not interested in doing this if this gets tied to my email and calendar. I just thought I would post this in case I decide it's not worth it. I doubt that would happen, but it may.

BTW, Google, your text editor still screws up the HTML text decoration and spacing on a regular basis, and your blog-search feature is so useless (you heard me, the search feature) I have to log in every time I want to find an old case I wrote about. Try fixing that before you start requiring me to link this with all the other intimate details you have about me in your database.