The case I followed most closely was Grokster. I had predicted since the day the Ninth Circuit's opinion came down that, if the Court granted certiorari and heard Grokster, it would be a civil procedure case as much as a copyright case. Most commentators, however, concentrated on whether the Court would rewrite Sony (that scritchy sound you hear is me, modestly buffing my nails at my own prescience). In the end, Grokster means this: The evidence is what matters, not the parties' policy positions and platitudes, or those of their respective amici. This is as it should be; broad policy positions should seldom be the determining factor in live disputes between particular nongovernmental parties.
Grokster wasn't the only civil-procedure-heavy decision this past Term, or even the last month of the Term. Supplemental jurisdiction—the ability of the federal courts to hear matters that are related to something that properly is within their jurisdiction, but do not themselves have a basis for federal jurisdiction (whether statutorily or constitutionally)—is a subject near and dear to my heart. The Court decided on a broad conception of supplemental jurisdiction in class actions: If one claimant is in, so is the rest of the class (as long as the class definition is proper, that is). Exxon Mobil Corp. v. Allapattah Servs., Inc., No. 04–70 (June 23). This certainly matches my own prejudices. Despite being almost exclusively a plaintiff's counsel—and those few instances otherwise are merely due to procedural quirks, such as an opposing party filing a declaratory judgment action—I would rather be in federal court, even when a state court has jurisdiction (and even, theoretically, in my local state courts, although that has as much to do with my perception of the judges as anything else). The total cost of litigation (consider the obvious analogy to total cost of ownership) in federal court is usually comparable to, or less than, the total cost of litigation in state court for the kinds of matters that I handle… and for class actions in general. Further, the kinds of matters I handle tend to depend upon either subtle distinctions, legal lacunae, or both; and, for that reason, I prefer federal court because I have more confidence that federal judicial clerks won't screw up the research (a harsh experience I've had more than once in state courts, in different states).
Other civil procedure decisions—at least, those that are of a general nature, rather than limited to particular causes of action—included (in order of decision):
- Tenet, No. 03–1395 (March 2)—reaffirms Totten v. US, 92 U.S. 105 (1876), which prohibits suits against the US based on covert espionage agreements. On the one hand, there's the serious question of whether courts are capable of resolving these disputes when they do occur; on the other hand, there's the potential abuse of those who undertake substantial risk on behalf of the US, with no recourse outside the agency that is (allegedly) abusing the agreement. That said, as a practical matter these disputes really aren't amenable to judicial resolution; the kind of evidence that would need to be presented will essentially come down to a "he said/she said" situation… in a context in which deception is inherent.
- Ballard, No. 03–184 (March 7)—Tax Court rules may not prohibit parties from seeing documents prepared by the court and purportedly relied upon in preparing the court's judgment. This is one of those cases in which one must wonder whether somebody below was completely out of his or her mind. The parties didn't ask for early drafts of the actual opinion, which would be "deliberative documents"; they asked for the equivalent of the magistrate judge's recommendation. Later developments indicate that the taxpayers' darkest suspicions may, in this instance, have been understated.
- Rancho Palos Verdes, No. 03–1601 (March 23)—A federal statute that provides a different remedy than possible under 42 U.S.C. § 1983 precludes a claim for the § 1983 remedy. This is actually a much closer question than implied by the 9–0 reversal of the Ninth Circuit, as it's easily possible to conceive of (and cite!) federal statutes that provide grossly inadequate remedies that, but for the statute, one would expect to hear under § 1983. Rancho Palos Verdes will, I'm afraid, only encourage the drafting of statutes with the explicit intent of understating available remedies.
- Saudi Basic Industries, No. 03–1696 (March 30)—The Rooker-Feldman doctrine applies only to complaints in which a federal district court is essentially asked to overrule the previous, final judgment of a state court of competent jurisdiction by the loser below. Note that this is only a question of a positive requirement to decline jurisdiction; there are many other discretionary ways for the federal court to avoid hearing a matter that implicates state-court proceedings.
- Bates, No. 03–388 (April 27)—State common law may establish parallel requirements and support a cause of action except when a federal statute explicitly precludes all state regulation. This is the third point in Bates, and has received little attention; the Court's analysis is not entirely consistent with its ERISA and McCarran-Ferguson decisions, at least on the face of the decision.
- Orff, No. 03–1566 (June 23)—Because the statute in question did not explicitly waive sovereign immunity, the US claim to sovereign immunity must be upheld; statutes restricting sovereign immunity must be "strictly construed in favor of the sovereign." If one likes sovereign immunity doctrine, this was an uncontroversial holding; particularly in light of the problems created by State Street Bank, I'm not a big fan of broad conceptions of sovereign immunity. On these facts, the Court reached the right result; the problem is that the rhetoric employed is excessively broad itself… a nice irony in the face of the holding.
- San Remo Hotel, No. 04–340 (June 20)—The Full Faith and Credit statute (28 U.S.C. § 1738) means that when a state court denies a claim on reasoning explicitly coextensive with federal law, Pullman applies to divest a federal district court over later adjudicating the same claim under a federal statute. The problem with this decision is its assumption that state courts will accurately and honestly interpret their laws as coextensive with federal law—a particularly problematic assumption in the context of takings, as in this matter. Like Orff, the problem here is that the rhetoric and reasoning greatly exceed that necessary to decide this particular matter. Admittedly, this is not exactly a violation of the advisory opinion doctrine (which, after all, is a prudential—and not constitutional—interpretation of "case or controversy"), but unfortunately civil procedure tends to lend itself to precisely this kind of difficulty in crafting an opinion.
One last thought on civil procedure: It's not a coincidence that the significant opinions on civil procedure were issued only during the last four months of the term. Civil procedure opinions, for whatever reason, are seldom issued in the first few months of the term, even when unanimous. Why this might be, I don't know; but it is statistically significant since Rehnquist became Chief Justice (and possibly before; I just haven't gone any farther back).