News

     CCL President Robert S. Peck explains why facts matter in his latest posting on the Appellate Advocacy Blog, a part of the Law Professor Blogs Network. In A Focus on the Facts, Peck uses the very different factual contexts utilized by the parties in Sackett v. EPA, No. 21-454, pending in the U.S. Supreme Court to explain why law goes hand in hand with potentially sympathetic facts. 

     In Sackett, the Court will determine the meaning of "wetland," for purposes of the EPA's regulatory authority. Although this might seem like a straightforward question that should not be influenced by factual disputes, both parties have sought to portray the other's position as insensible based on the facts. The Sacketts tell a tale of a homeowner seeking to build a modest home on their property, which is zoned as residential, and for which they face "crushing fines" for interfering with navigable waters, even though there are no streams, rivers, lakes, or other body of water on their property. The EPA, on the other hand, says that the Sacketts have a commercial construction and excavation business and are well aware that their property is part of a fen that drains under the surface into wetlands and a lake. 

      The Supreme Court, likely to be split on the issue, will issue an opinion before the end of June. However, it seems almost certain that the majority and the dissenters are likely to adopt the facts that suit their position, giving readers the same, very different rendition of what is at stake.

     CCL's Peck discussed the standards employed by courts in determining punitive damages and when the jury's determination is deemed "grossly excessive" at a meeting in Philadelphia of the American Law Institute. The meeting was part of a decades-long process of developing a new Restatement on Torts to reflect developments in the law since the last project of this kind. Restatements are considered authoritative explanations of the law and developments.

     In the meeting of members who are part of the consultative group for development of this restatement, punitive damages became a central issue. Much of the discussion revolved around what the U.S. Supreme Court said in its 2007 decision in Philip Morris v. Williams, which established, for the first time, that a defendant had a right to a jury instruction, when properly requested, that limited some considerations in assessing punitive damages to the harm visited upon the plaintiff, even if the primary determinant, reprehensibility, could consider harm or potential harm to others. When the 5-4 decision was handed down, the dissenters, who included an unusual combination of Justices Ginsburg, Stevens, Scalia, and Thomas, found the type of instruction authorized to make little sense.

     Peck was able to speak especially knowledgeably about the case because he argued in the Supreme Court both for the 2007 decision and a subsequent return hearing that resulted in the Court allowing a 97:1 ratio to stand in 2009 after the Oregon Supreme Court held that Philip Morris had not properly requested the jury instruction.

     Revisions to the draft discussed at the Philadelphia meeting will occur.

    Facts can sometimes make or break as case, CCL President Robert S. Peck advises in a post on the Appellate Advocacy Blog. In A Focus on the Facts, Peck relates two experiences in cases where the facts drove the law and made all the difference.

     The Appellate Advocacy Blog is a part of the Law Professor Blogs Network. Peck is a contributing editor of the blog and posts biweekly.

    In a new blog post, CCL President Robert S. Peck both critiques the Supreme Court's new approach to historical practice as the basis for constitutional analysis, showing the illogical uses that lower courts have now adopted.

     In its end of term decision in N.Y. State Rifle and Pistol Association v. Bruen, the Supreme Court struck down a 1915 NY gun regulation law as inconsistent with historic traditions. Although the Supreme Court recognized that regulations could be imposed for "sensitive areas," some lower courts have now struck down other regulations because historic traditions were not evident that would allow restrictions based on being under 21, past criminal activity, or even at summer camps, which did not exist at the time the Second Amendment was ratified.

     The blog post advises appellate advocates about framing arguments in this new world of constitutional analysis. The post can be found at New World.

     Speaking on the opening panel for the 16th Annual Judicial Symposium on Civil Justice Issues, CCL President Robert S. Peck highlighted upcoming U.S. Supreme Court cases and other issues coming down the road that will likely affect how judges look at key issues. More than 100 judges from around the country attended the event held at George Mason University's Antonin Scalia Law School.

     The opening panel, moderated by Justice William Mims of the Virginia Supreme Court, also featured Geoffrey Wyatt, a partner at the Skadden Arps law firm. Video of the panel, as well as the other panels, is available at 16th Annual Judicial Conference on Civil Justice Issues.

     CCL President Robert Peck told the Wall Street Journal that more precedents were endangered and a bold Supreme Court seemed prepared to tackle a wide range of social and cultural issues, in the newspaper's preview of the new  term.

      The article can be found at Supreme Court Term Preview.

     CCL President Robert S. Peck participated in the biennial meeting of the Civil Justice Research Institute's board of advisers on September 24. The CJRI is a program of the University of California-Berkeley School of Law. 

     During the course of the meeting, Peck presented an upcoming white paper he co-wrote with two Berkeley students on gun-violence litigation.

     Writing in his biweekly blog post for the Appellate Advocacy Blog, CCL President Robert S. Peck critiqued the North Carolina legislature's use of misleading history to argue that it should have unfettered discretion to set the federal voting rules in the state.

     The case, Moore v. Harper, forces the Supreme Court to consider the "independent legislature theory" that the federal Constitution designates state legislatures to make federal election rules without scrutiny from the state courts or any limitations imposed by the state constitution.

     The post, History Rewritten to Serve Selfish Ends – and Serve an Argument, explains that North Carolina's reliance on a draft of portions of the Constitution by Charles Pinckney Jr. is misplaced. The so-called draft Pinckney Plan that the state claims demonstrates the Framers' intent that state legislative decisions be unreviewable in the states was debunked by historians and no lesser an authority than James Madison, rightfully called the Father of the Constitution. Instead, as the authors of an article on the issue in Politico explained, the Pinckney Plan was an after-the-fact attempt by Pinckney to claim greater credit than he deserved for participating in the Constitutional Convention. In fact, the "plan" contains language from the Constitution that was only developed late in the Convention and that was at odds with positions Pinckney took during the assemblage. 

     Peck argues that use of such fractured history can generate judicial errors that will perpetuate revisionism that ill serves constitutional government.

      CCL President Robert S. Peck reviewed upcoming U.S. Supreme Court cases that involve civil justice issues at the annual preview hosted by the Law and Economics Center at George Mason University Antonin Scalia School of Law, along with John Beisner of the Skadden Arps law firm.

      The conversation started with Mallory v. Norfolk Southern Railway, a case involving personal jurisdiction under Pennsylvania's corporate registration statute, which has treated registration as consent to general jurisdiction for more than a century and was upheld by the Supreme Court in 1917. Modern caselaw and the Court's new heavy emphasis on originalism, the interpretative theory that treats the objective of those who framed and ratified the Constitution as determinative of its meaning, brings new questions into play on the state statute's validity. 

      Peck explained that, with Justice Gorsuch's recent concurrence suggesting a new look at fundamental concepts of personal jurisdiction, the case could provide a launching point for a new jurisprudence. He distinguished what was at issue in the Pennsylvania case, where the injury took place out of state, with a Georgia case also on the Supreme Court's docket, where there were more substantial connections to the state that justified the assertion of personal jurisdiction, indicating the Court could provide guidance.

      Other cases discussed included National Pork Production Council v. Ross (Dormant Commerce Clause), Axon Enterprise, Inc. v. FTC (whether a corporation under investigation by an independent federal agency could bypass the Administrative Procedures Act and challenge the agency's constitutionality in federal district court), and Health and Hospital Corporation v. Televsky (private right of action under statutes passed pursuant to the Spending Clause).

      Peck also highlighted two petitions from CCL's docket: Recht v. Morrisey (commercial speech) and Douglass v. NYK Line (personal jurisdiction).

     CCL President Robert S. Peck attended and contributed to discussions of the American Law Institute's Concluding Provisions draft in Philadelphia as part of its decades-long effort to update its Restatement of Torts.

      During the meeting, discussants probed and suggested changes to sections on medical malpractice, vicarious liability, spoliation, and miscellaneous issues in tort law. The small-group effort will result in further revisions that will be the subject of future discussions.