Tuesday, September 24, 2002

Supreme Court The beginning of October is coming soon, which means that I'd better get up to speed with my Supreme Court predictions. Most people have too much sense to be making these predictions, it seems, except for me and the courageous blogger at "Supreme Court Blog". There is, however, still plenty of time to get in the game, or to snicker on the sidelines.

Today's prediction's are these:

October 7 (I had wrongly thought this case was to come later, but they changed the schedule on me).

Ford Motor Co. v. McCauley is about how to calculate the amount in controversy for diversity jurisdiction, in a class action that involves (among other things) a demand for injunctive relief. Back up for a second. The deal here is this: federal trial courts have jurisdiction over state law cases (as contrasted to cases brought under federal laws) only if the amount in controversy exceeds $75,000. Why? Because that's what the statute says, that's why. This, of course, raises all sorts of questions about how to calculate the amount in controversy – and there's a whole lot of litigation about this, largely because defendants prefer federal courts over state courts and plaintiffs often prefer state courts, so there's a lot of manouevering and arguing about "amount in controversy." The Ninth Circuit's opinion, finding the amount in controversy too small to support federal jurisdiction, is here. My prediction goes along the following lines: if the case doesn't get bogged down on questions of appellate jurisdiction (as distinct from the "amount in controversy" question), most – I think all, in fact – Justices will agree that the Ninth Circuit was wrong in holding that the injunctive relief has to be valued only from the plaintiff's viewpoint in a class action. But there's likely to be some disagreement over precisely how injunctive relief should be measured, and – again, if they reach this point – the Justices are likely to send the case back to the Ninth Circuit for further consideration according to some new test that the Court announces. But it's equally likely, in my view, that the case won't get that far, because it's not at all clear that the Ninth Circuit had appellate jurisdiction to decide the case, because (a) orders remanding (sending back) cases to state court are generally not reviewable on appeal, and (b) there's some other procedural oddness that the Supreme Court asked for supplemental briefing on. Fortunately, under the rules of my contest (in which "VACATE" is subsumed within "REVERSE"), I win either way, just by saying "REVERSE".

Ok, that was boring. Now here's an interesting one, for October 9:

Eldred v. Ashcroft Everybody who cares about the internet already knows about this one. It's the case about the constitutionality of the extension of existing copyrights – more bluntly, it's the reason why Disney can still sue you and win if you copy Mickey. To oversimplify, everything created before 1923 was supposed to go into public domain (if it wasn't already there) by 1998, but the Congress extended the terms of copyright so that now it will be 20 years longer. The DC Circuit upheld the extension here. I was talking by email a few days ago with a lawyer who knows a lot more about this case than I do, and I'd had enough beers to pontificate with abandon, and here's what I came up with:

the dynamics are:

1) worried about the over-influence of big-media (-->tendency towards reversal) v. not worried about the over-influence of big media

2) think they know what the "FRAMERS" had in mind (-->tendency towards reversal) v. who knows what they had in mind

3) hate the congress (-->tendency towards reversal) v. don't hate the congress

4) don't care about what other countries do (-->tendency towards reversal) v. care

5) think that First Amendment has a lot to say about how businesses should be allowed to do business (-->tendency towards reversal) v. don't

I said that night that, based on these dynamics, the government would win 6-3. I still think so, but have changed my mind about the three; now I think that the dissenters will be Scalia, Thomas, and Kennedy. But anyway, my prediction is: AFFIRM

posted by sam 2:58 PM 0 comments

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