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OA248: The Cert(iorari) Show! (Patreon)

Published:
2019-01-29 07:25:24
Imported:
2022-10

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Content

Today's episode features a deep dive into a bunch of different issues around granting the writ of certiorari -- "cert" -- and some of the intricacies of how the Trump administration is trying to take advantage of the activist Supreme Court.  Oh, and we also tackle a lawsuit that's being grossly misrepresented by the media.

We begin with a discussion of the unique procedure of "cert before judgment."  What is it, how rare is it, and... why is the Trump administration trying to deploy it with alarming frequency?  Listen and find out!

Then, we revisit litigation regarding the census that we first discussed back in Episode 232, and the administration's effort to... get cert before judgment (of course).

Our main segment looks at something Andrew has never seen before:  essentially, a four-justice dissent from a denial of certiorari.  Why is this weird?  Listen and find out as we dissect that very opinion in Kennedy v. Bremerton School Dist.

Next, we tackle a recent clickbaity headline involving a dishwasher allegedly showered with money for "skipping work to go to church."  Find out why the reporting on this case has been totally irresponsible and what really happened.

After all that, it's time for the answer to Thomas Takes The Bar Exam #111, which involved a contract for defective water bottles.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Appearances

None!  If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

  1. "Cert before judgment" is governed by Supreme Court Rule 11.
  2. We first discussed the census litigation back in Episode 232.  You can read the motion to dismiss the writ of certiorari as improvidently granted, as well as the U.S. reply.
  3. Click here to read the "statement" regarding the denial of cert in Kennedy v. Bremerton School Dist.
  4. Click here to read the CBS news report on the Hilton lawsuit, and here to read the (even worse) reporting by the Friendly Atheist blog.
  5. By contrast, you can read the actual Jean Pierre Hilton overtime lawsuit and the jury's verdict.  Oh, and here's the EEOC's statement limiting punitive damages in retaliation cases to just $300,000 (not $21 million).

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And email us at openarguments@gmail.com

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Comments

Anonymous

I was wondering about another perspective on the Marie L. Jean Pierre v. Park Hotels $21 million punitive damages. Andrew talked about how NBC News framed the story as "dishwasher scores big payout," and he lamented that the subtext of that framing of the story implied that Ms. Jean Pierre (Ms. Pierre?) was undeserving of such a large payment--that she was "shaking down" Hilton and should only receive something on the order of magnitude of her dishwasher's salary. Although I do agree that is the value judgment that articles like these are almost uniformly trying to sell you, I wonder what percentage of readers actually buy it. I am an environmental economist, and in that profession you frequently have to measure the value of something that cannot be sold, such as the value of the cleanliness of a beach or the value of a national park (called non-market goods). A jury's calculation of punitive damages resembles a form of contingent valuation called "stated preference." In that model, you survey people and offer them a hypothetical, such as, "Budget cuts are forcing G. Terwilliger Park to close. How much would you be willing to pay to keep it open?" In the jury's punitive damages example, the jury surveys itself asking, "Given all the facts you know in this case, how much are you willing to dick-over Hilton so they don't do this again?" I am aware that there is voir dire and jury selection but I would hazard to say there is a good variety of people on the jury. That is, they are not all white male CEOs, NBC reporters or, ahem, attorneys with successful podcasts. For example, Ms. Jean Pierre is a working class woman who immigrated from Haiti. The nine counties of SDFL are 36.9% foreign born, 39.4% blue collar, and 21.4% Black (incidentally, SDFL has much higher percent foreign born and percent Black than the US as a whole at 13.4% and 13.9%, respectively). There are probably people on the jury who can relate to Ms. Jean Pierre's experience despite the defense counsel's best effort to make sure it is not so. If juries are "of your peers," it is reasonable to expect that the punitive damages number that they come up with is the damage sum negotiated amongst the jury where some jurors account for the lamentations that Andrew had. That is, some jurors include in the damages the asymmetric power relationship between employer and employee, Hilton's ability to pay, and socioeconomic factors such as class, race, gender, or foreign born status. I guess that was a long way of saying that for every person who sees $21 million as an egregiously large sum, there are some who think, "Chew on that Retsyn-infused Cert while you cry all the way to the bank, Daddy Warbucks!"

Anonymous

This was a confusing show for those of us who are unfamiliar with American brands like Certs or... Quiz Nose?

Anonymous
>>19372429

Is Quizno's even still around? The one by Madison Square Park closed ages ago, it's an Arby's now