“Eight Ways to Sunday”: Which Direction, Kentucky Supreme Court?
Attempted synthesis of the rulings of Kentucky’s highest court threatens to go the proverbial “eight ways to Sunday.” For one thing, although Kentucky is not very populous and its Supreme Court sharply limits discretionary review, still literally thousands of opinions have been rendered by the Court and its predecessor, the Kentucky Court of Appeals, which prior to 1975 was the only appellate court in the Commonwealth. Also, great diversity of judicial philosophy among the Court’s members has resulted in sometimes warring opinions that make divergent points resembling the scattershot of a Kentucky dove hunter. Litigation Practice Group Podcast
Ahead of the Supreme Court's hearing of oral arguments in Mississippi v. AU Optronics on November 6, Constitutional law expert and states' rights advocate Charles J. Cooper would like to encourage a broader discussion of the underlying issue of the case - what is the proper scope of federal courts' diversity jurisdiction? In a September 10 amicus brief, included below, Mr. Cooper argues that an originalist reading of Article III suggests that an out-of-state defendant has what amounts to a Constitutional right to remove to federal court "controversies between citizens of different states" and "between a state and citizens of another state." Mr. Cooper discussed the main points of his argument and was joined by Howard C. Nielsen, Jr. to field questions from the call-in audience.
- Mr. Charles J. Cooper, Founder, Cooper & Kirk, PLLC; Board Member, Access to Courts
- Mr. Howard C. Nielsen, Jr., Partner, Cooper & Kirk PLLC
- Moderator: Mr. Dean A. Reuter, Vice President and Director of Practice Groups, The Federalist Society
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In American Express Co. v. Italian Colors Restaurant, the Supreme Court considered an important question regarding the enforceability of arbitration agreements that contain class action waivers. In 2011, the Court held in AT&T Mobility LLC v. Concepcion that state law purporting to invalidate class action waivers in arbitration agreements is preempted by the Federal Arbitration Act. In Italian Colors, however, which involves a Sherman Act class action brought by retailers against American Express for alleged tying violations relating to its credit card agreements, the Second Circuit held that the “federal substantive law of arbitrability” invalidated the class action waiver provision in American Express’s arbitration agreements with merchants that accept its credit cards. The court of appeals reasoned that the class action waiver provision was invalid under federal law because it would “effectively preclude any action seeking to vindicate the statutory rights asserted by” the plaintiff class, given the prohibitive expense of trying to prove an antitrust claim on an individual basis. The Second Circuit concluded that Concepcion was inapposite, because there had been no showing there that “the practical effect of the enforcement would be to preclude [the plaintiff class’s] ability to vindicate their statutory rights.” The Supreme Court will now decide whether its Concepcion decision really did vindicate the ability of business defendants to enforce class action waivers in arbitration agreements, or instead whether plaintiffs can escape such provisions whenever they can show that individual litigation of federal claims would be prohibitively expensive.
Our expert, Thomas G. Hungar of Gibson, Dunn & Crutcher, attended the oral argument and then provided his analysis of the merits of the case and the possible outcomes in light of the oral arguments.
- Mr. Thomas G. Hungar, Partner, Gibson Dunn & Crutcher LLP
- Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society
Arkansas Supreme Court Clarifies Standard for Awarding Punitive Damages State Court Docket Watch Spring 2012
On December 8, 2011, the Supreme Court of Arkansas affirmed a jury’s award of approximately $5.98 million in compensatory damages and $42 million in punitive damages against a developer of genetically modified rice found to have negligently allowed the rice to contaminate the national rice supply. Specifically, the court held that (1) the statutory cap on punitive damages was unconstitutional under the state constitution, (2) the economic-loss doctrine did not bar the claims, (3) the trial court did not abuse its discretion by admitting expert testimony on future damages, and (4) the developer failed to preserve its argument that the punitive damages were grossly excessive. [Read more!]
Aspirin for a "Major Headache?" Scaling Back Relief Under the Alien Tort Claims Act International & National Security Law Practice Group Newsletter - Volume 3, Issue 3, Winter 2000
Customary international law is increasingly permeating the jurisprudence of American courts. Early Supreme Court cases established the proposition that the "law of nations" is part of "our law." Since those pronouncements, however, the "law of nations" has become "international law," growing exponentially to cover human rights and non-state actors. Several new vehicles have emerged in recent years that allow federal courts to search the vast array of international law principles and adopt them as controlling legal authority. The Alien Tort Claims Act (ATCA) is one of the most significant among these laws creating private causes of action for violations of international law.