Monday, October 07, 2002

Jeff Cooper writes (as always) with more erudition than I have, about today's Supreme Court argument in Ford v. McCauley, the diversity-jurisdiction amount-in-controversy case. He seems a little saddened that I described it as "boring." Perhaps he will be happier to know that I actually consider it (and all the intricacies of diversity jurisdiction) fascinating, and have written dozens of briefs about this area of law. I am a nerd. It's just that I thought it would be boring to most of the rest of you.

The case also shows the difficulties of predicting Supreme Court outcomes, which is the game I have assigned myself this year. I feel pretty confident in predicting that (if they get past issues of appellate jurisdiction), the Justices will overwhelmingly adopt the "either party's viewpoint" test for valuation of injunctive relief -- in contrast to the Ninth Circuit's "plaintiff's viewpoint" rule. (Believe it or not, I've written briefs about this arcane and narrow question myself). And they'll set forth some guidance for how to place a $ value on injunctive relief. The hard part is guessing whether they'll apply their new test themselves -- and thus affirm the Ninth Circuit's decision "on other grounds" -- or reverse and remand with instructions to the Ninth Circuit to take the first stab at it. This is symptomatic of the difficulties in guessing the outcomes of many cases: I feel pretty (maybe too) confident in predicting much of what the majority opinion will say, in terms of big outlines of "what the law is", but many cases then come down to quite narrow case-specific and fact-specific details that will drive the last portion of the opinion and that will dictate the precise result.

UPDATE: Dahlia Lithwick, who is the only good thing about the Supreme Court these days, says (among many funny things) that the Ford v. McCauley argument was all about appellate jurisdiction, so it looks like they probably won't even get to the amount-in-controversy question (if you can tell anything from oral argument, and telling anything from oral argument is often a dicey proposition).

posted by sam 5:56 PM 0 comments

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