07 June 2005

Deciding Not to Decide

I see no need to add more smoke (and mirrors) to that generated by Raich; go to SCotUSBlog for a wide, wiiiiiiiiiide range of opinions. Of course, the context makes it rather difficult to have a sober, level-headed discussion. Nonetheless, I think those commentators have left few stones unturned.

So, instead, let's look at some things that the Court decided not to decide yesterday: Cases denied certiorari. In alphabetical order, and chosen by whimsy as much as anything else:

  • Isaacks v. New Times (04–1464): This libel case concerns satire, parody, exaggeration, and criticism of public officials, all in one swell foop. In 1999, the Dallas Observer published a short piece describing the jailing of a six-year-old student for a book report based on Maurice Sendak's award-winning Where the Wild Things Are. The piece was a parody—in the literary sense, not the copyright-law sense—inspired by a prosecutor and judge sending a 13-year-old boy to jail for reading a purportedly "graphic" Halloween story in class, in violation of school rules regarding violence. (Why he didn't just go home and watch the Rodney King tape again, or just about anything else on the news, is for another time… and reflects pretty poorly upon the school system.) The Texas Supreme Court held that the story had enough indicators of exaggeration and parody that it wasn't libellous. What it didn't do is note that the plaintiff judge and prosecutor—not to mention school board—need to, in the immortal words of Judge Kozinski, "chill." That Judge Kozinski stated so in one of the many "Barbie desecration" cases—I think it was Walking Mountain—only makes his advice more relevant.
  • Lexmark v. Static Control: This is a copyright case involving the digital rights management (DRM) segment of the DMCA. Lexmark embedded a chip in its toner cartridges that included a short bit of code designed to ensure that only Lexmark-brand cartridges could be used in the printer. Static Control reverse-engineered the chip and started shipping its own (substantially less expensive) cartridges with a chip that mimiced the Lexmark chip. Lexmark sued, asserting that the reverse engineering constituted evasion of a DRM system under the Copyright Act. The Sixth Circuit—correctly—held that any DRM system problems are overwhelmed by the fact that the toner cartridge itself is a staple item of commerce. In other words, the DRM related to noncopyrightable subject matter, not copyrightable subject matter, and therefore was outside the proper scope of the Copyright Act. Had Static Control merely duplicated the code in the chip, that might have been another story; then we'd be into the "fact or expression" problem, which the Sixth Circuit neatly sidestepped. As a procedural note, this matter appears to have been denied hearing not on a petition for a writ of certiorari, but because the petition was filed too late.
  • Nat'l Wresting Coaches Ass'n v. Dept. of Education (04–922): This case asserts that Department of Education "quotas" that suggest that athletic participation should roughly mirror the gender makeup of the college in question are not permitted because they harm male athletes—or at least these male athletes in "non-revenue" sports—because they "force" colleges to close down men's programs in order to open women's programs. Leaving aside for the moment whether participating in college athletics is some kind of "right"—the quotation marks should give away my opinion—what this case is really about is trying to enforce a preexisting split of a pie. The obvious solution is to make sure that one's sporting activity is indeed self-supporting; that way, budget restrictions at colleges have little chance of impacting things. However, that's not necessarily a realistic option, particularly for those sporting events that do not lend themselves all that well to live attendance, including wrestling. The coaches (et al.) have tried to put this in terms of what the DoE regulations "force" colleges to do. Although I have some sympathy for that position—if "money is speech" under Buckley, then it logically is "coercion" in this context—this is just plain the wrong defendant. The "right" defendant is the individual colleges; but that's a losing proposition procedurally, too.

Then, on the other hand, there's a matter that the Court decided to hear that is of more than passing interest to civil procedure nerds. Will v. Hallock (04–1332) concerns the Tort Claims Act (for claims against the US government), and an additional question specified by the justices in their grant of certiorari:

Did the Court of Appeals have jurisdiction over the interlocutory appeal of the District Court's order denying a motion to dismiss under the FTCA's judgment bar, 28 U.S.C. § 2676?

This is actually a fairly important question. The federal courts hate interlocutory appeals (appeals taken before final judgment), because they virtually guarantee (no matter how they're decided) that the matter will appear again. On the other hand, the statutory basis for interlocutory appeals has been slowly broadening in the last decade or so. For example, class certification is now subject to an interlocutory appeal, whereas it wasn't in the mid-1990s when I did most of my class-action work. Further, some (primarily procedural) decisions have the effect of essentially foretelling the outcome, so it makes sense to consider them afresh, before the poor trial judge puts more effort into the matter. Some parties want to be immune, too, and granting or denying immunity is usually a particularly critical decision; it's not quite outcome determinative in the legal sense, but it is in the practical sense. Thus, it's going to be interesting to see how this one plays out. Interesting to civil procedure nerds, anyway.

Irreverant aside: If only this had been filed the day before, it might have had a case number of 1292 instead of 1332… which is still a number beloved of civil procedure nerds. On the other hand, I bet opinion on whether 1332 is "beloved" is pretty diverse. <vbeg>