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- The Honorable Jennifer Walker Elrod - United States Court of Appeals for the Fifth Circuit
- The Honorable Gregg Jeffrey Costa - United States Court of Appeals for the Fifth Circuit
The Federalist Society's Teleforum series, Legal Classics Revisited, will consider Professor Alexander Bickel's 1962 book, The Least Dangerous Branch. In a life cut short just before his 50th birthday, Professor Bickel contributed to our understanding of American constitutional law. Among his more provocative concepts was the "counter-majoritarian difficulty." It is not unique to observe that in a nation governed by elected representatives, an unelected Federal judiciary with lifetime tenure represents an anomaly. Alexander Hamilton penned Federalist No. 78 to explain and defend the idea. Professor Bickel takes Hamilton's idea and his title and spends his book exploring the questions: How can an unelected branch of government be a co-equal branch of government? How can society enjoy the benefits of an impartial judiciary without seismic jolting along the fault line between majoritarian and counter-majoritarian institutions? Professor Bickel's questions are still extremely relevant today.
On June 9, 2016, the Supreme Court decided Dietz v. Bouldin. Petitioner Rocky Dietz sued respondent Hillary Bouldin for negligence for injuries suffered in an automobile accident. Bouldin removed the case to Federal District Court. At trial, Bouldin admitted liability and stipulated to damages of $10,136 for Dietz’ medical expenses. The only disputed issue remaining was whether Dietz was entitled to more. During deliberations, the jury sent the judge a note asking whether Dietz’s medical expenses had been paid and, if so, by whom. Although the judge was concerned that the jury may not have understood that a verdict of less than the stipulated amount would require a mistrial, the judge, with the parties’ consent, responded only that the information being sought was not relevant to the verdict. The jury returned a verdict in Dietz’ favor but awarded him $0 in damages. After the verdict, the judge discharged the jury, and the jurors left the courtroom. Moments later, the judge realized the error in the $0 verdict and ordered the clerk to bring back the jurors, who were all in the building—including one who may have left for a short time and returned. Over the objection of Dietz’s counsel and in the interest of judicial economy and efficiency, the judge decided to recall the jury. After questioning the jurors as a group, the judge was satisfied that none had spoken about the case to anyone and ordered them to return the next morning. After receiving clarifying instructions, the reassembled jury returned a verdict awarding Dietz $15,000 in damages. On appeal, the Ninth Circuit affirmed.
The question before the Supreme Court was whether a federal district court can recall a jury it has discharged, or whether the court can remedy the error only by ordering a new trial. By a vote of 6-2, the Supreme Court affirmed the judgment of the Ninth Circuit. Justice Sotomayor delivered the opinion of the Court, which held that a federal district court has a limited inherent power to rescind a jury discharge order and recall a jury in a civil case for further deliberations after identifying an error in the jury's verdict. The district court did not abuse that power here. Justice Sotomayor’s majority opinion was joined by the Chief Justice and Justices Ginsburg, Breyer, Alito, and Kagan. Justice Thomas filed a dissenting opinion, in which Justice Kennedy joined.
To discuss the case, we have Brad Shannon, who is Professor of Law at Florida Coastal School of Law.
On March 1, 2016, the Supreme Court decided Gobeille v. Liberty Mutual Insurance Company.
Liberty Mutual Insurance Company (Liberty Mutual) operates a self-insured employee health plan through a third-party administrator. Vermont state law requires such plans to file with the State reports concerning claims data and certain other information. When Vermont subpoenaed claims data from Liberty Mutual’s third-party administrator, Liberty Mutual sued and argued that the federal Employment Retirement Income Security Act of 1974 (ERISA) preempted the Vermont statute. The district court found no preemption and ruled in favor of Vermont. On appeal a divided panel of the U.S. Court of Appeals for the Second Circuit reversed and held that ERISA preemption did apply.
The question before the Supreme Court was whether the Second Circuit erred in holding that ERISA preempts Vermont's health care database law as applied to the third-party administrator for a self-funded ERISA plan.
By a vote of 6-2, the Supreme Court affirmed the judgment of the Second Circuit. Justice Kennedy delivered the opinion of the Court, which held that ERISA’s express preemption clause requires invalidation of the Vermont reporting statute as applied to ERISA plans. Justice Kennedy’s majority opinion was joined by the Chief Justice and Justices Thomas, Breyer, Alito, and Kagan. Justices Thomas and Breyer also filed concurring opinions. Justice Ginsburg filed a dissenting opinion, in which Justice Sotomayor joined.
To discuss the case, we have Joshua P. Ackerman, who is an Associate at Bartlit Beck Herman Palenchar & Scott LLP.
On June 6, 2016, the Supreme Court decided Simmons v. Himmelreich. This case arose out of lawsuits filed by federal prisoner Walter Himmelreich after he was assaulted by a fellow prisoner. Himmelreich’s initial lawsuit, filed against the United States, was ultimately dismissed pursuant to an exception under the Federal Tort Claims Act (FTCA) for certain discretionary actions by prison officials. While that suit was still pending, however, Himmelreich filed a second suit: a constitutional tort action against individual Bureau of Prisons employees. When Himmelreich’s initial suit was dismissed, these employee defendants argued that his action against them was foreclosed by the FTCA’s “judgment bar” provision, under which a judgment in an FTCA suit forecloses any future suit against individual employees. The District Court granted summary judgment in favor of the employees. On appeal the U.S. Court of Appeals for the Sixth Circuit reversed, holding that the judgment bar provision did not apply to Himmelreich’s suit. The Supreme Court then granted certiorari to resolve a Circuit split on whether the judgment bar provision applies to suits that, like Himmelreich’s, are dismissed as falling within an “exception” to the FTCA.
By a vote of 8-0, the Supreme Court affirmed the judgment of the Sixth Circuit and remanded the case. Justice Sotomayor delivered the opinion for a unanimous Court, holding that the FTCA’s judgment bar provision does not apply to claims dismissed because they fall within an FTCA "exception."
To discuss the case, we have Aaron Nielson, who is Associate Professor of Law at Brigham Young University Law School.