Circuit Splits

10th Circuit Reaffirms Position in Circuit Split Over FELA Jurisdictional Requirement

In Arbaugh v. Y & H Corp., the Supreme Court established a bright-line rule to guide lower courts in determining whether to treat a statutory element as a jurisdictional prerequisite or merely an essential ingredient of a particular claim:

If the Legislature clearly states that a threshold limitation on a statute’s scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue. . . . But when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as non-jurisdictional in character.

546 U.S. 500, 515-516 (2006) (internal citations omitted).

Last week the Tenth Circuit reaffirmed its position on a point of law first articulated in Sullivan v. Scoular Grain Co., in which the court “noted that federal question jurisdiction exists so long as the essential elements of an [Federal Employers Liability Act, or “FELA”] claim — including the defendant's common carrier and employer status — are alleged.” Smith v. Rail Link, Inc., No. 11-8011 (10th Cir. Oct. 23, 2012) (citing Sullivan v. Scoular Grain Co., 930 F.2d 798, 802-03 (10th Cir. 1991)).

The Tenth Circuit panel acknowledged that other circuits have taken the opposite view on the matter, but expressed confidence that it was on the right side of the conflict:

    In light of the absence of discussion on the jurisdictional question in Sullivan, and subsequent Supreme Court teachings on the point (e.g., Arbaugh), we might question the precedential value of Sullivan's holding on this narrow question.

    Nevertheless, because the FELA statute does not speak to these elements in jurisdictional terms, we see no reason to disturb the implicit conclusion reached in Sullivan.⁵ Accord Arbaugh, 546 U.S. at 511 (directing federal courts to focus on provisions of a statute explicitly speaking in jurisdictional terms when distinguishing between essential ingredients of a claim and jurisdictional requirements).⁶ Accordingly, consistent with Sullivan, we conclude that the district court had subject matter jurisdiction to hear this case, and thus had the power to enter final judgment.

    ⁵ Although the Supreme Court has not directly addressed this question, it has hinted that these elements are essential ingredients of a claim for relief under FELA rather than prerequisites to the exercise of federal question jurisdiction. See CSX Transportation, Inc. v. McBride, 131 S. Ct. 2630, 2644, 180 L. Ed. 2d 637 (2011) (speaking to "limitations" — as opposed to jurisdictional barriers — on "who may sue, and for what" when referring to a defendant's common carrier and employer status).

    The Court has suggested that the requirement that an employee be engaged in interstate commerce at the time of injury is a jurisdictional requirement. See Reed v. Pennsylvania Rail Co., 351 U.S. 502, 508, 76 S. Ct. 958, 100 L. Ed. 1366 (1956) (upholding district court's exercise of federal question jurisdiction over a FELA claim on the ground that the plaintiff's employment duties were in furtherance of interstate commerce operations of a defendant who was undisputedly a common carrier employer). But it is logical to distinguish the "interstate commerce" element from the "common carrier" and "employer" elements given that the former justifies Congress legislating in this field in the first place under the Constitution's Commerce Clause, while the latter are requirements that Congress chose to impose separate from establishing its power to legislate.

    In this case, there is no dispute whether Ms. Smith was furthering interstate commerce when she was injured — she was facilitating the loading of coal that will eventually be distributed around the country.

    ⁶ We recognize that holdings from other circuits suggest that these requirements are jurisdictional in nature. See Williamson v. Consolidated Rail Corp., 926 F.2d 1344, 1346 (3d Cir. 1991) (affirming district court's dismissal for lack of subject-matter jurisdiction where the case was brought under FELA and the trial court concluded that the defendant was not the plaintiff's employer as a matter of law); Mickler v. Nimishillen & Tuscarawas Railway Co., 13 F.3d 184 (6th Cir. 1993) ("The sole basis for federal jurisdiction in this case is FELA. Because defendant is not a common carrier and FELA does not apply, there is no federal question."); Aho v. Erie Mining Co., 466 F.2d 539 (8th Cir. 1972) (affirming district court's determination that jurisdiction was lacking where defendant in a FELA action was not a common carrier).

    While there is substantial authority from our sibling circuits suggesting a conclusion different from the one we reaffirm today, we think that Sullivan's holding better accords with the Supreme Court's most recent teachings on the difference between essential elements of a claim (which are not jurisdictional) and jurisdictional requirements. Accordingly, we do not disturb it.

Smith v. Rail Link, Inc., No. 11-8011 (10th Cir. Oct. 23, 2012) (10th Cir. Wyo. Oct. 23, 2012).

Law Professor Urges Congress to Quiet the "Constitutional Cacophony" Coming from Circuit Conflicts Over the 4th Amendment

Wayne Logan, a law professor at Florida State College of Law, just published a new article in the Vanderbilt Law Review that "highlights the existence of over three dozen extant circuit splits" related to the Fourth Amendment. The article, entitled "Constitutional Cacophony: Federal Circuit Splits and the Fourth Amendment," provides a convenient summary of the empirical research conducted on circuit splits to date, and discusses the nature, prevalence, and implications of circuit splits involving the Fourth Amendment.

Professor Logan ultimately concludes that the relatively large number of circuit splits over Fourth Amendment issues

    (1)     "undermine[s] the nation’s sense of shared constitutional culture, highlighting the inability of the               courts of a single sovereign—the U.S. Government, perceived by most Americans as the prime               expositor of national constitutional law—to render consistent constitutional outcomes";

    (2)      "present[s] difficult choice of law questions when federal prosecutions entail police work crossing                    circuit boundaries";

    (3)     "complicate[s] whether a right is 'clearly established' in constitutional tort litigation or 'settled' for                     purposes of the 'good faith' exception to the exclusionary rule"; and

    (4)     "contribute[s] to possible federal forum shopping."

Professor Stevenson and I have expressed similar concerns on this blog here, here, and here.

So who should bear responsibility for restoring uniformity to Fourth Amendment jurisprudence? Not the nine justices on the Supreme Court, says Professor Logan, who points out that "the Court’s plenary docket is now smaller than at any time in its recent history." Professor Logan argues that Congress is also not up to the task: "while Congress can clarify, amend, or repeal a federal statute variously interpreted by circuits, only the Court can definitively resolve a constitutional conflict." Instead, Logan "urges resuscitation by Congress of the federal certification statute, which has long empowered circuit courts to certify legal questions to the Court for authoritative determination."

You can read the abstract posted on the Vanderbilt Law Review's website here.

[*Hat tip to Orin Kerr, who reviewed the article on The Volokh Conspiracy yesterday.]

4th Circuit Highlights Clash Between State, Federal, and International Arbitration Laws

Yesterday the Fourth Circuit issued its decision in ESAB Group v. Zurich Insurance PLC, a case raising “a complex question regarding the intersection of a treaty and federal and state statutory law.” Not surprisingly, this question—whether state insurance law may “reverse preempt” a treaty guaranteeing the reciprocal enforcement of arbitration agreements and awards in signatory nations—has led to a split among the circuit courts.

In 1970, the U.S. became a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the Convention), under which the U.S. promised to enforce arbitration agreements and awards arising out of commercial relationships reasonably related to one or more of the signatory nations. As the Fourth Circuit in ESAB Group noted, Congress enacted chapter 2 of the Federal Arbitration Act to ensure that all arbitration agreements and awards reasonably related to foreign interests or citizens are respected and enforced on U.S. soil in a manner consistent with its Convention.

In doing so, Congress placed the Convention and its corresponding Act on a collision course with the McCarran-Ferguson Act of 1946, which “authorizes ‘reverse preemption’ of generally applicable federal statutes by state laws enacted for the purpose of regulating the business of insurance.” Congress enacted the McCarran-Ferguson Act, the Fourth Circuit's opinion explains, “to restore the states’ preeminent position in insurance regulation” by reversing the normal rule under which state law is impliedly preempted by conflicting federal law.

In ESAB Group, a Swedish insurance provider agreed to insure ESAB Group, a South Carolina company that makes welding and cutting equipment, tools, and materials. In return, the ESAB Group’s parent company agreed to arbitrate coverage disputes in Swedish arbitral tribunals. In 2009, ESAB Group’s insurance provider refused coverage, prompting ESAB Group to file suit in state court. The insurance provider removed the case to federal court, to which the ESAB Group responded by arguing that the McCarran-Ferguson Act deprived the federal court of subject-matter jurisdiction over the dispute, notwithstanding the Group’s arbitration clause to the contrary.

On appeal, the Fourth Circuit considered whether the South Carolina law, which would have invalidated ESAB Group’s arbitration agreement mentioned above, may reverse preempt the Convention under the McCarran-Ferguson Act. Writing for the three-member panel, Judge Henry Floyd identified “a split amongst our sister circuits concerning the interaction between the Convention, the Convention Act, and the McCarran-Ferguson Act.” Compare Stephens v. Am. Int’l Ins. Co., 66 F.3d 41 (2d Cir. 1995) (holding that state laws precluding arbitration in certain cases may preempt the Convention or Convention Act pursuant to the McCarran-Ferguson Act); with Safety Nat’l Cas. Corp. v. Certain Underwriters at Lloyd's, London, 587 F.3d 714, 722–23 (5th Cir. 2009) (en banc) (rejecting the applicability of reverse preemption in such cases).

After analyzing the competing positions, the Fourth Circuit in ESAB Group joined the Fifth Circuit in holding that “the Convention Act, as implementing legislation of a treaty, does not fall within the scope of the McCarran-Ferguson Act.” You can read the court’s full opinion here: ESAB Group v. Zurich Insurance PLC, No. 4:09-cv-01701-TER (4th Cir. July 9, 2012).

*Hat tip to Steven M. Klepper.

Will E-Discovery Cost Recovery Catch the Supreme Court's Eye?

Yesterday, we looked at the cert. petition recently filed in Hoosier Racing Tire Corp. v. Race Tires America, Inc., which presents the Supreme Court with the opportunity to resolve an important conflict among the federal courts over the scope of recoverable costs associated with the production of electronic documents during discovery. Earlier this week, Carey Busen of Baker Hostetler wrote a piece for the Discovery Advocate blog asking, “Will SCOTUS Weigh In on the Taxation of e-Discovery Costs?”

In deciding whether to "weigh in on" any one of the 8,000+ cases seeking a spot on the Court's shrinking plenary docket each term, the Court follows a tradition whereby it will deny certiorari unless at least four justices vote to grant. While the justices maintain a shroud of secrecy around their criteria for deciding which cases to decide on the merits, Court watchers have detected a variety of factors on which the justices and their law clerks rely to quickly screen the cases that present important, pressing questions of federal law from the remaining 99% of cert. petitions seeking review. 

As I mentioned above, Hoosier Racing Tire Corp. presents the Supreme Court with the opportunity to resolve a circuit split. But the justices have long since given up trying to decide every case presenting a conflict of law, preferring instead to hear only those cases which the justices feel present important conflicts of federal law. More on that later.

As a rule of thumb, the Court will typically deny certiorari in a conflict case unless the justices have the benefit of at least three prior circuit court decisions that squarely address the question presented to the Court. Recent decisions addressing the scope of recoverable e-discovery costs issued by the Third, Fifth, Seventh, and Federal Circuits, respectively, suggest that this issue has had sufficient time to "percolate" in the lower courts.

The issue presented in Hoosier Racing Tire Corp. is also important because its resolution by the Court would have a widespread effect on the legal system. As the petitioners point out, "The issue of who will bear costs associated with electronic discovery is faced by nearly every litigant in every lawsuit, and controlling the costs of electronic discovery has become an important aspect of any litigation strategy." Petition for a Writ of Certiorari, Hoosier Racing Tire Corp. v. Race Tires Am., No. 11-1520, at 6 (June 14, 2012) (PDF). Cases involving procedural provisions like the one at issue in Hoosier Racing Tire Corp. are also strong candidates for certiorari because they invoke the Court's institutional obligation to ensure the uniform application of federal procedure. 

Moreover, while the Court is not receptive to cert. petitions arguing only that the lower court's decision was erroneous, the petitioners in Hoosier Racing Tire Corp. appropriately butress the other arguments for certiorari with a discussion of the merits. Specifically, the petitioners argue that the Third Circuit's construction of the Costs Statute is inconsistent with both the plain meaning of the statutory text (presumably catering to Justice Scalia's taste for textualism) and its legislative intent (appealing to Justice Breyer's desire to divine congressional intent from the legislative record). Because the Supreme Court reverses roughly 65%-70% of the cases it agrees to hear, the brief arguments addressing the merits of the Third Circuit's decision may strike a chord with one or more of the justices on the fence.

And finally, the likelihood that the Supreme Court will agree to review Hoosier Racing Tire Corp. will increase significantly if one or more "friends of the court" file amicus briefs elaborating on the practical implications of the issue's resolution. Under Supreme Court Rule 37, amicus briefs must "be filed within 30 days after the case is placed on the docket or a response is called for by the Court, whichever is later . . . ." While the court's docket does not reflect any amicus activity in this case yet, vendors peddling e-discovery services to corporate litigants have a strong incentive to file an amicus brief urging the Court to grant certiorari. A corporate litigant's decision to hire an outside vendor to compile, process, and code its electronic documents largely turns on whether the company is confident that it will be able to recover the costs if it prevails without having to suffer through prolonged litigation over the recoverable amount. For an industry that reportedly made "revenues equaling approximately $2.8 billion in 2009," e-vendors that wish to see the Third Circuit's decision in Hoosier Racing Tire Corp. overturned have a strong incentive to invest in an amicus brief (or two or three).

Are there any additional reasons why the Court should or should not grant cert. in this case? I encourage readers to share their thoughts in the comment box below.

[*Hat tip to Gil Keteltas.]

Video Surfaces of Senate Candidate's Premature Reaction to Obamacare Decision

As you may have heard, the Supreme Court will hand down its highly anticipated decisions in the Health Care Cases tomorrow. Once it does, expect to see a wide range of reactions from political leaders jockeying for position as November draws near. One candidate, Indiana's Richard Mourdock, was apparently so eager to get his message out about the Court's forthcoming Obamacare decision that he pre-taped various responses in which he tailors his message to each of the potential outcomes. Unfortunately for the Mourdock campaign, someone posted the unedited footage of his premature postulation to YouTube. And thanks to modern technology, here it is for your viewing pleasure:

If your browser does not support Flash, you can watch the HTML-friendly version on YouTube here.

Supreme Court Resolves Circuit Split Over Outside Pharma Sales

On Monday (June 18), the Supreme Court issued its decision in Christopher v. SmithKline Beecham Corp., holding 5-4 that pharmaceutical company "detailers" are "outside salesmen" for purposes of the FLSA (29 U.S.C. §213(a)(1), 29 CFR §541.500, and related sections of the federal statutes and Department of Labor regulations). The Court affirmed the Ninth Circuit, whose decision in turn had been in conflict with the Second Circuit (see In re Novartis Wage and Hour Litigation, 611 F. 3d 141, 153155 (2010) (holding that the DOL’s interpretation is entitled to controlling deference).  The Court's decision is important not only for the pharmaceutical salesforce around the country (numbering about 90,000), but for Employment Law and Administrative Law generally.

Quick overview: Since the 1940's, the government and the pharmaceutical companies have considered their outside salesforce or "detailers" to be "exempt" employees, that is, not entitled to overtime pay if they worked more than 40 hours in a week (regular employees under the statute would be entitled to overtime pay).  Recently, some of these workers began to claim that they were not really salespeople, and therefore should indeed get overtime pay for the 10-15 hours per week that they typically spent on work-related tasks beyond their 40-hour workweek.  Their rationale was that they did not really close any sales; instead, they pitched the products to individual physicians, in hopes that the doctors would prescribe their meds to patients, who would then purchase them at a local pharmacy.  The companies (and the government, until recently) always argued that the special regulations controlling pharmaceutical sales - designed to prevent kickback arrangements with doctors, who might be tempted to prescribe unnecessary medicines - eliminated a "close the sale" component from the detailer's promotional efforts, but that it was the primary means of generating sales nonetheless.  

Compounding this semantic dispute (about whether we can call someone a "salesman" if he never closes any sales) was overt ambiguity in both the relevant statute and the relevant regulations by which the Dept of Labor implemented the statute.  Even so, for decades there was a consensus that detailers were, in fact, outside salesmen and therefore "exempt" employees for FLSA purposes.  So far, however, this dispute is really a fairly common issue in Employment Law - whether certain semi-professional salaried employees should get overtime pay when they work more than 40 hours in a week.

The Obama Administration, however, abruptly adopted a new position via the DOL, and argued in amicus briefs in these cases that the salespeople were not outside salesmen and were not exempt.  This introduced a thorny Administrative Law question - the level of deference courts should give to an agency's interpretation of its own regulations (called Auer deference, after Auer v. Robbins, 519 U. S. 452 (1997) - as well as the ancillary question of whether Auer deference applies when the agency is not a party to the case. The DOL did not promulgate a new rule through notice-and-comment rulemaking, nor did it adopt a policy position in one of its own cases - instead, it adopted a position (breaking with 70 years of its own policy) in amicus briefs filed in cases between private litigants.  

Auer deference is analogous to Chevron deference, but with important differences - Chevron doctrine involves the problem of interpretation when one entity (an agency) must interpret and implement a legal mandate ("declaratives" in linguistic jargon) from another entity (Congress); courts defer to the agency's interpretation when the statute is ambiguous and proposed interpretation seems reasonable, because the statute itself is communication directed at the agency.  Auer deference involves a a single entity as communicator and interpreter - the agency promulgates vague regulations and then decides later what they mean.  While it makes intuitive sense to trust the author about the true meaning of a written text, there is a danger than agencies will abuse this system, bypassing the APA's notice-and-comment rules by promulgating "mushy" regulations and then winging it, adopting whatever interpretation seems expedient in a given case.  Auer deference is a newer idea, and less commonly occurring, than Chevron deference, and courts use a host of standards or factors to decide whether the agency shoudl win.  The factors are very similar to the pre-Chevron factors in Skidmore - how long or carefully the agency studied its new interpretation, why the agency is breaking from precedent, what stakes are involved, and so forth.  

Both the majority and the dissenting opinions in the case seemed to think Auer deference was unwarranted here - the DOL adopted this new stance out of the blue, and only in amicus briefs, without much of a record of decision or policy rationale. The DOL had also changed its position about how to define "sales" between the first appeal and its oral arguments at the Supreme Court, which was offputting. This seems like a good move from the Court - we needed a decision declining Auer deference to clarify its outer boundaries and to reassure us that agencies still had some judicial checks on their power and caprice.  

Alito's majority opinion also found the plaintiffs hard to pity - like most detailers, they both make over $70,000/year and were hired for their sales experience.  These are not minimum-wage oppressed laborers working long hours in a sweatshop - the after-hours work the detailers complained of included mostly "attending events," which probably involved food and fun.  The dissenters focused on the language of the statutes and regs involved, which they feel is clearly in the workers' favor (but which the DOL interpreted otherwise consistently for several decades).

The split along party lines in this case is a little mystifying - neither opinion mentions any overarching policy issues that would fit into a conservative or progressive worldview.  In a case splitting on the standard party lines, I would have expected at least one of the sides to discuss public policy - how the decision will affect the price of prescription medicines, for example, or how it incentivizes the companies regarding more public advertising/information about their products (rather than targeting the doctors and leaving the consumers in the dark) - or even how it might apply to analogous employees in other fields. The detailers are highly compensated, successful sellers who act as the rainmakers of the big pharma firms - so there is no David-vs-Goliath story here to explain the liberals on the Court huddling in dissent, nor a save-the-businessman story to explaint he conservatives voting in a block.

- Dru Stevenson

Circuit Split Roundup

For the latest news and commentary on areas of law dividing the courts or recently resolved, check out the following links:

• Lee Beck, DOJ’s “Departure Bar” Regulation to Reopening Immigration Cases: Another Circuit, Another Loss, Federal Regulations Advisor (May 24, 2012) (HTML).

• Rudolph J. Di Massa, Jr. & Aaron J. Margolis, Supreme Court Addresses Circuit Split Over Cramdown Plans Precluding Credit Bidding, The Legal Intelligencer (May 22, 2012) (HTML).

• Christopher M. Loveland & Jonathan S. Aronie, United States: Another U.S. District Court Follows The Lead Of The D.C. Circuit In Addressing The "First-To-File Bar" Circuit Split And Pushes Back Against An Opportunistic Relator, mondaq.com (May 21, 2012) (HTML).

• Jonathan H. Adler, Court to Consider Standing to Challenge FISA Surveillance, The Volokh Conspiracy (May 21, 2012) (HTML).

• Laura Fishwick, Application Of the First Sale Doctrine To Exclusive Importation Rights After Quality King, Harv. J. L. & Tech. Jolt Digest (May 20, 2012) (HTML).

Issues in Constitutional Litigation: A Context and Practice Casebook [Book Review - Part 2 of 2]

Yesterday I reviewed Professor Sarah Ricks and Professor Evelyn Tenenbaum's new casebook entitled Current Issues in Constitutional Litigation: A Context and Practice Casebook (Carolina Academic Press 2011). In case you missed it yesterday, you can find my review of the professors' new casebook here.

Today I wanted to encourage readers to check out the following two sample chapters, which you can download for free on SSRN:

• Chapter Five - 42 U.S.C. § 1983 Action Under Color of Law. To give you a better idea of the layout of each chapter, here is a screenshot of chapter five's table of contents:

• Chapter Fourteen - Protecting Freedom of Religion in Prison: The Free Exercise Clause and RLUIPA. And here is a screenshot of what you can expect to find in this chapter:

Is the Langdellian case method finally showing signs of aging? Should law professors abandon the casebook/Socratic method of teaching law in favor of the "context-and-practice method"? I invite readers to share their thoughts by leaving a comment below!

Issues in Constitutional Litigation: A Context and Practice Casebook [Book Review - Part 1 of 2]

Each year new crops of wide-eyed 1Ls listen to law professors opine that they must learn how to "think like a lawyer.” Yet, as the New York Time’s David Segal pointed out in a recent article entitled “What They Don’t Teach Law Students: Lawyering,” the law-school curriculum has, for more than a century now, “emphasized the theoretical over the useful.” But to quote the great Bob Dylan, “The times they are a-changin.’”

According to an article in the Wall Street Journal (here), many of the nation’s top law schools “are throwing out decades of tradition by replacing textbook courses” with courses like Indiana Law’s “course of so-called emotional intelligence,” Harvard Law’s new “problem-solving class for first-year students,” and Stanford’s “full-time clinical course” in which students must complete “several 40-hour plus weeks of actual case work” to graduate.

Professor Sarah Ricks of the Rutgers School of Law was nice enough to send me a courtesy copy of her new casebook, which she coauthored with Professor Evelyn Tenenbaum of Albany Law School, entitled Current Issues in Constitutional Litigation: A Context and Practice Casebook (Carolina Academic Press 2011). As the title suggests, this casebook is designed to help students think about the law from the perspective of a practicing lawyer. Like many of the great casebooks on the subject that have come before it, Issues in Constitutional Litigation covers the landmark Supreme Court cases with intelligent commentary and thoughtful organization. Unlike many of the great casebooks on the subject that have come before it, the book also focuses on federal circuit decisions, with a particular emphasis on both established and emerging circuit splits. Each chapter also strives to capture the human element of practicing law--something that legal opinions frequently fail to convey. Students will read letters from inmates, review historical documents like the 1867 cover of Harper's Weekly depicting black men casting their "first vote," receive practice pointers from seasoned veterans, and receive exposure to a host of other "real-world" issues that help bring the cases to life.

To be clear, Issues in Constitutional Litigations does not trash the traditional casebook model. The important cases are all still there. Instead, the book improves upon the old casebook model in two important ways. First, it places each case in a broader context that helps explain the doctrinal developments that might otherwise feel counterintuitive or arbitrary to students who limit their study of the subject to the four corners of the opinions.

Second, the book emphasizes the advocate's role in shaping the development of constitutional law. This is a critical component of thinking like a lawyer; and one that the casebook/Socratic method tends to neglect. The biggest criticism I have heard from seasoned attorneys about their freshly minted colleagues--which I largely attribute to the casebook/Soctratic method of teaching--is that law students graduate with the impression that they are supposed to analyze and apply the law in a disinterested, neutral manner as they might in the classroom when called on by their professor to recite the previous night's reading assignment. Issues in Constitutional Litigation does an excellent job illustrating the relationship that attorneys have with the court and their client, as well as the active role attorneys play in shaping the law through zealous advocacy for their client's interests. In other words, the book focuses the reader's attention on the process through which constitutional law is made, not solely on the finished product of that process.

The book, Professor Ricks explains, accomplishes this by "plac[ing] students in roles as practitioners handling simulated law practice problems" and provides a more engaging learning experience through the use of "exercises, visual aids, and questions to guide student reading." The book also "includes materials that help students reflect on their professional roles.” You can purchase Current Issues in Constitutional Litigation online here. Tomorrow’s post will feature an excerpt from the book that you won’t want to miss. 

150 Most Commonly Used Words in the Obamacare Debate

For today's post, I thought I would mix it up a little. The word cloud below reflects the 150 most commonly used words during last month's oral arguments before the Supreme Court in the Affordable Care Act Cases. To create this cloud, I combined the transcripts from all four days of argument and then let Wordle work its magic. 

Initial observations: Given the fact that the words "Justice" and "Mr." appear in the transcript each time a party speaks, one might expect these honorifics to be repeated in the transcript more than any other word.

The substance of the monumental arguments, however, reveals itself once you look beyond these two words. For example, the words "Congress," "people," and "market" underscore some of the most difficult questions facing the Supreme Court; that is, questions concerning the separation of powers,* federalism, and the Commerce Clause.

Based on the amount of space occupied by Justice Sotomayor's name relative to those of her colleagues, it appears that the first of two justices appointed by President Obama was the most vocal justice on the bench. (And not surprisingly, Justice Thomas's name did not make it into the cloud.)

*In an interesting twist earlier this week, President Obama made several controversial remarks that provide an excellent illustration of the inherent tension between the separate branches of government. Here is a video of those remarks:

 

Judge Jerry Smith of the Fifth Circuit (a Reagan appointee) responded in a separate case by ordering the federal prosecutor in that case to submit a paper, "three pages single spaced," detailing the DOJ and Attorney General Holder's position on the Judiciary's authority to strike down laws that violate the Constitution. (For a brief overview of the chain of events that led to Judge Smith's unusual order, check out The Wall Street Journal Law Blog's coverage of the issue here.)

The Blog of LegalTimes has posted a copy of Attorney General Holder's letter in response here: PDF. Did the DOJ meet its 3-page minimum requirement? Were the President's comments out of line? Please let me know what you think in the comments below!

140 Writing Tips From the "Brief of the Century"

As I mentioned on the Legal Skills Prof Blog (here), I recently finished reading writing guru Ross Guberman's new book entitled "Point Made: How to Write Like the Nation's Top Advocates." I highly recommend the book to any lawyer, professor, or law student who is interested in improving their writing, but is not willing to suffer through another stuffy treatise. It seems that Ross has kept quite busy since the release of his book last year. In anticipation of this week's oral arguments on the Affordable Care Act, Ross has put together a list of 140+ writing tips using the Solicitor General's brief to the Supreme Court (otherwise referred to as the "brief of the century") discussing the constitutionality of the Act. You can read his comments here: PDF.

On a related note, you can listen to an audio recording of yesterday's oral argument concerning the Anti-Injunction Act's applicability to the Health Care Reform Cases by clicking on the following YouTube video:

[*Hat tip to Ross Guberman for the link.]

High Court Sets Date for Oral Argument in Health Care Showdown

Since the late 1960s, the Supreme Court has limited oral arguments to one hour per case in all but a handful of cases. With the Court's announcement yesterday that it will hear an unprecedented 5.5 hours of oral argument in the Health Care Reform Cases, the Patient Protection and Affordable Care Act (PPACA) joins the pantheon of landmark legal battlegrounds that have shaped American jurisprudence.

SCOTUSBlog.com’s Lyle Denniston reports:

On Monday, March 26, the Court will hear one hour of argument on whether challenges to the individual insurance mandate are barred by the federal Anti-Injunction Act.  On Tuesday, March 27, the Court will hear two hours of argument on the constitutionality of the individual insurance mandate.  And on Wednesday, March 28, the Court will hear 90 minutes of argument in the morning on the question of whether any of the ACA, or some parts of it, could survive if the Court were to strike down the individual insurance mandate, followed in the afternoon by one hour of argument on the constitutionality of the new law’s expansion of the federal Medicaid program for the poor and disabled. (See here.)

Perhaps the most controversial issue before the Court involves the PPACA's individual mandate, which would require almost all Americans to purchase health care insurance starting in 2014. As CNN.com reported yesterday (here),

Three federal appeals courts have found the PPACA to be constitutional, while another has said it is not, labeling it "breathtaking in its expansive scope." That "circuit split" all but assured the Supreme Court would step in and decide the matter.

Professor Jerry Goldman explains this significance in the following video:

In case you missed it in the video, here is the list of longest oral arguments:

(1) Brown v. Board of Education (Brown I), 347 U.S. 483 (1954): 15 hours. 

(2) Brown v. Board of Education (Brown II), 349 U.S. 294 (1955) (Brown II): 13.5 hours.

(3) South Carolina v. Katzenbach, 383 U.S. 301 (1966): 7 hours.

(4) Miranda v. Arizona, 384 U.S. 436 (1966): 6 hours.

(5) Health Care Reform Cases (2011): 5.5 hours.

(6) Death Penalty Cases of 1976: 5 hours.

If the time allotted by the Court for oral arguments is indicative of a particular case's legal significance, then next year's Health Care Reform decision will rank among the Supreme Court's most notable. Stay tuned for more coverage of the circuit splits before the Supreme Court in what is shaping up to be an "epic" term.