Finger on the Pulse: From our Blogroll and Beyond

Finger on the Pulse: From our Blogroll and Beyond will be a weekly feature on The Legal Pulse, providing references to stories, analyses, and information relevant to the work of the Washington Legal Foundation and of interest to our friends and allies.

Friday, April 30

WLF’s 2010 Freedom and Justice Writing Competition

Washington Legal Foundation is pleased to announce its 2010 Freedom and Justice Writing Competition.  This year, law students will be asked to respond to the following prompt:

In Ashcroft v. Iqbal, 129 S. Ct. 1937  (2009) and Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007), the U.S. Supreme Court issued rulings which clarified its interpretation of the standards of particularity that plaintiffs must meet when crafting civil litigation complaints. Federal legislation, such as The Notice Pleading Restoration Act of 2009, S.1504, is being considered to overturn these decisions. Explain the Court’s rulings in the two cases; assess case analysis of lower court decisions to see what impact the rulings have had, and examine the effect the repeal of Iqbal and Twombly would have on the civil litigation environment.

The winning student will have his paper published in WLF Legal Backgrounder format and widely distributed to federal and state judges; electronic and print media reporters; state attorneys general; attorneys practicing in the respective field, both in private and corporate practice, as well as influential academics.

For more information on this year’s competition, click here.

To see last year’s winning paper by Saurabh Vishnubhakat, a third year law student at Franklin Pierce Law Center, click here.

No Class (Actions): Supreme Court Decision a Win for Arbitration and the Civil Justice System

The Supreme Court’s decision on Tuesday, April 27 in Stolt-Nielsen v. AnimalFeed may not be the final death knell for class-wide adjudication of claims subject to arbitration agreements, but it is pretty darn close.  While plaintiffs’ lawyers can be expected to assert numerous grounds for distinguishing their cases from Stolt-Nielsen, Justice Alito’s sweeping decision leaves them very little wiggle room.

Congress and the courts have long recognized that when contracting parties agree that disputes arising out of their contractual arrangements should be settled by private arbitration, the agreement is valid and enforceable.  But such agreements rarely provide any detailed rules governing how an arbitration proceeding is to be conducted, and it has generally been left up to the arbitrator to fill in those gaps.  In particular, until very recently virtually no arbitration agreements specified whether the arbitrator could certify a proceeding as a class action and permit the claimant to sue on behalf of similarly situated individuals.  After the Supreme Court’s 2003 decision in Green Tree Financial Corp. v. Bazzle left open the possibility that classwide arbitrations might be permissible, the number of instances in which the arbitrator has permitted the proceedings to go forward on that basis has increased tremendously. Continue reading

Environmental Justice, Redux?

Here’s further proof that in the Nation’s Capital, bad ideas never go away, they just wait quietly in the wings until new management arrives:

In its National Enforcement Priorities list for Fiscal Years 2011-2013, the EPA includes, for the first time as a stand-alone priority, “environmental justice” or, as the agency’s coded bureaucratese puts it, a focus on pollution in communities which have a “disproportionate exposure to environmental risks and those with greater concentrations of sensitive populations, including urban minority and low-income communities.” 

Recent EPA actions confirm the agency’s increased focus on environmental justice and its efforts to reenergize the movement’s activists. And what better way to encourage activism than by handing out taxpayer dollars?  For instance,  in EPA’s recent  progress report the agency noted doling out “40 grants totaling $800,000 to state, local, tribal and community groups to help low-income and minority communities that are disproportionately exposed to high levels of pollution and risk.”  EPA will be handing out thousands of more taxpayer dollars to the winners of its Faces of the Grassroots Environmental Justice Video Contest.  Finally, the agency has also initiated an Environmental Justice Showcase Communities program pledging $1,000,000 for 10 “pet projects”  “to improve collaboration in the delivery of services to support communities with environmental justice issues.”  Continue reading

Monsanto Argument: The High Court Revisits NEPA Injunctions (Or Does It?)

To see how Washington Legal Foundation’s arguments would fare (we filed an amicus brief in support of Monsanto), I attended yesterday’s Supreme Court oral argument in Monsanto Co. v. Geertson Seed Farms.  Unfortunately, the justices didn’t spend much time discussing many of the issues that the parties and amici briefed.  Instead, they devoted a majority of their questions to whether Monsanto lacks standing to challenge the injunction in the first place.  Here’s why: 

The case centers on the propriety of an injunction that was issued to halt the sale and distribution of a strain of genetically modified alfalfa developed and marketed by Monsanto Co.  (Alfalfa yields increase considerably if weeds can be prevented from growing in the same field.)  The new variety of alfalfa, known as Roundup Ready alfalfa, is resistant to Monsanto’s widely used agricultural herbicide Roundup. The use of Roundup Ready alfalfa allows farmers to apply Roundup to their entire field of alfalfa crops, rather than more expensive and less environmentally friendly herbicides that must be applied more frequently. Continue reading

People for the American Way’s Wayward Attack on High Court, Free Enterprise

Just like clockwork, whenever a vacancy opens up on the Supreme Court, activist public interest groups begin churning out “reports.”  To call People for the American Way’s (PFAW) “The Rise of the Corporate Court: How the Supreme Court is Putting Business First” a report is quite a stretch, but then again, so are the entire document’s claims and conclusions.  Its underlying premise seems to be that neither businesses nor the people who own and run them merit the same legal rights as all citizens.  The analysis of course won’t acknowledge that the “people” for whom  they claim to speak are employees, pensioners, shareholders, and consumers of these businesses, and that courts’ failure to uphold the companies’ statutory or constitutional protections have a direct, negative impact on those people. Continue reading

Last Week at WLF

New Publications:

New Litigation:

  • U.S. v. Caronia
    Second Circuit
    Off-Label Drug Promotion
    Filed 4/22

Other: