|
ulmont posted:For political, non-racial, gerrymanders, yes. For actual violations of the racial-equality protections that still remain in the Voting Rights Act, no. Find and replace “black” for “Democrat.” Done. I’ll take my consulting check now.
|
#
?
Mar 2, 2021 23:34
|
|
|
|
| # ? Jun 7, 2024 16:00 |
|
|
Groovelord Neato posted:Shelby County was a horrid decision on its face but Roberts not even giving a constitutional reasoning for gutting the VRA should've been the end of anyone seeing the Court as a legitimate body (well that shoulda been Bush v Gore but I digress) and everyone just kept acting like things were normal. This is really the heart of it. Democrats and their obsession with  results in the GOP doing whatever the gently caress they want and getting away with it. Obama should've forced the matter with Shelby County and challenged the legitimacy of the court issuing a ruling that they had no authority to make and stated outright that the DoJ will continue to enforce the VRA that Congress passed per the authority given to them in the post-CW amendments.Piell posted:Per the gerrymandering decision, it will be ruled that as long as the intent is to disenfranchise Democrats specifically rather than minority voters then it's legal. All the Jim Crow laws relating to voting will return with sections scribbled out and the word Democrats scrawled above it This was literally the ruling in NC's case a few years ago wasn't it and a case only went poorly for the GOP after the architect of their plan died, the guy's daughter publicly released the records he kept that were literally newjimcrow.txt, and the GOP cried and demanded those files be given to them because exposing the truth was hurting their case. Sodomy Hussein posted:These kinds of takes from Twitter randos in every thread are what's driving calls to stop allowing Twitter in D&D. That tweet's paraphrase of the quote you posted is not inaccurate but you do you. Evil Fluffy fucked around with this message at 23:48 on Mar 2, 2021 |
|
#
?
Mar 2, 2021 23:45
|
|
|
Proust Malone posted:Find and replace “black” for “Democrat.” It turns out to be slightly tougher than that, as the Republicans found out a couple years ago and as referenced in the post below yours.
|
|
#
?
Mar 2, 2021 23:59
|
|
|
ulmont posted:It turns out to be slightly tougher than that, as the Republicans found out a couple years ago and as referenced in the post below yours. Except the only reason it didn't work is because the pre-find-and-replace evidence still existed. Everyone knew what was happening but once the evidence got out, not all Republicans were on board with saying "well this proves nothing gently caress you" and ignores that the SCOTUS had 3 or 4 people at the time who did think that and two of those people who didn't agree (Kennedy and RBG) are gone. All the GOP has to do is not literally take notes for their crimes and the SCOTUS will absolutely give them cover (and with the current SCOTUS they might do it anyways even if evidence does come up again).
|
|
#
?
Mar 3, 2021 00:17
|
|
|
Evil Fluffy posted:Except the only reason it didn't work is because the pre-find-and-replace evidence still existed. Everyone knew what was happening but once the evidence got out, not all Republicans were on board with saying "well this proves nothing gently caress you" and ignores that the SCOTUS had 3 or 4 people at the time who did think that and two of those people who didn't agree (Kennedy and RBG) are gone. so what you're saying is, we're safe
|
|
#
?
Mar 3, 2021 00:48
|
|
|
Proust Malone posted:Find and replace “black” for “Democrat.” Yeah this just sounds bonkers to me. If its legally permissible to do everything possible to inhibit/prevent/limit the ability of democrats to vote, who in their right mind thinks the Republicans won't eventually arrive at solutions such as 'lets just close all polling locations in Democratic precincts', or hell why even stop there and simply pass a law saying that only Republican's are allowed to run for office?
|
|
#
?
Mar 3, 2021 15:26
|
|
|
DandyLion posted:Yeah this just sounds bonkers to me. This is literally what Republicans want. If they can get away with gutting the VRA you can be drat sure they're going to continue the march backwards to white landowners (get hosed, young renters) being allowed to vote so they never lose power again.
|
|
#
?
Mar 3, 2021 15:28
|
|
|
DandyLion posted:Yeah this just sounds bonkers to me. That's their entire point - notwithstanding consideration of what benefits things like democracy and ballot access have for the ruling class compared to, uh, the alternatives.
|
|
#
?
Mar 3, 2021 15:45
|
|
|
So I guess voting isn't a right then, but merely a service controlled by the states in which they're free to modify however they wish as long as it doesn't directly assault race/sex/religion? (as it Sounds like Robert's is intimating)
|
|
#
?
Mar 3, 2021 15:55
|
|
|
DandyLion posted:Yeah this just sounds bonkers to me. Or say, require a form of photo ID to cast a ballot then close DMVs in majority black counties.
|
|
#
?
Mar 3, 2021 17:25
|
|
|
DandyLion posted:So I guess voting isn't a right then, but merely a service controlled by the states in which they're free to modify however they wish as long as it doesn't directly assault race/sex/religion? (as it Sounds like Robert's is intimating) "The right to vote isn't explicitly listed in the Constitution by the Founders, therefore you don't have a right to vote" is a position that right wingers have argued with total sincerity.
|
|
#
?
Mar 3, 2021 19:18
|
|
|
DandyLion posted:Yeah this just sounds bonkers to me. That's up to the Supreme Court to decide whether to draw a line - or, indeed, whether there'll be a line at all. For example, the idea that any kind of fairness has to be kept in mind in district boundaries is a modern invention by the Supreme Court. Until 1964, districts didn't even have to have equal populations, and states didn't have to regularly redistrict to account for population changes. Even in cases where the state's own law said they needed to do redistricting, the Supreme Court had ruled in 1946 that district boundaries and apportionment was a political question the judicial branch had no authority over. By the time that ruling was overturned in 1962, some states hadn't engaged in redistricting in over sixty years. But even with district boundaries now being a judicial question, it's not like the courts have ruled gerrymandering illegal - unless it's gerrymandering with the explicit intent of disenfranchising a racial or religious minority.
|
|
#
?
Mar 3, 2021 19:45
|
|
|
Main Paineframe posted:its not like the courts have ruled gerrymandering illegal - unless it's gerrymandering with the explicit intent of disenfranchising a racial or religious minority. Didn't cases related to REDLINE basically accept that these were protected class gerrymanders, but that because the GOP redline operatives were all acting as consultants behind institutional  firewalls that they were actually okay?"Yes REDLINE made maps that are racially gerrymandered and I'm aware that none of you really question that fact, but we didn't direct redline to do it so we couldn't have known and thus there wasn't any intent"
|
|
#
?
Mar 3, 2021 20:02
|
|
|
Evil Fluffy posted:"The right to vote isn't explicitly listed in the Constitution by the Founders, therefore you don't have a right to vote" is a position that right wingers have argued with total sincerity. They don't even care if it is explicit text in the Constitution. They'll interpret blatantly around stuff they don't like. See: 2nd, 8th, 14th amendments, etc
|
|
#
?
Mar 3, 2021 20:48
|
|
|
The GOP's share of the voting population is eroding, both parties know it, the GOP is doing everything it can to counter that erosion including just making Dems not be allowed to vote and the Dem leadership don't care because they're all lovely rich boomers who won't have to suffer the consequences.
|
|
#
?
Mar 3, 2021 21:58
|
|
|
Evil Fluffy posted:The GOP's share of the voting population is eroding, both parties know it, the GOP is doing everything it can to counter that erosion including just making Dems not be allowed to vote and the Dem leadership don't care because they're all lovely rich boomers who won't have to suffer the consequences. That will change though. Once all these debt hawks, iraq war hawks, and guys who served in congress during the cold war are dead, we will see a dramatic shift to this:  And, the emotionally bankrupt post covid-19 survivors will be looking for a real strong man. Not the virgin Trump. So the GOP isn't going to win with population, no one does. they will win with fear & intimidation. One thing the 6th + other events have shown us is these drones can be commanded to travel 1,000 miles and will do so because why not? so you can have a new "Freedom rider" going around intimidating people on key voting days. So change the law to allow voting only on 1 day and intimidate all voters.
|
|
#
?
Mar 4, 2021 04:25
|
|
|
To be fair they’ve tried doing everything except winning more votes.
|
|
#
?
Mar 7, 2021 08:29
|
|
|
Evil Fluffy posted:"The right to vote isn't explicitly listed in the Constitution by the Founders, therefore you don't have a right to vote" is a position that right wingers have argued with total sincerity. Well the funny thing is that's true, a state could simply ban all voting and that would be perfectly constitutional. What's not constitutional is giving some people the right to vote and not others in a way that violates the 14th. IMO the due process clause is a bit too ambiguous and gives the SCOTUS too much leeway to legislate from the bench, it should be repealed and replaced with something longer and more specific.
|
|
#
?
Mar 7, 2021 09:03
|
|
|
human garbage bag posted:Well the funny thing is that's true, a state could simply ban all voting and that would be perfectly constitutional. While the guarantee of a republican form of state government has not been meaningfully defined by the Supreme Court, this might be an step too far.
|
|
#
?
Mar 7, 2021 17:23
|
|
|
ulmont posted:While the guarantee of a republican form of state government has not been meaningfully defined by the Supreme Court, this might be an step too far. I thought the whole ‘senators must be popularly elected’ 17th amendment de jure made a popular vote mandatory. quote:The Seventeenth Amendment restates the first paragraph of Article I, section 3 of the Constitution and provides for the election of senators by replacing the phrase “chosen by the Legislature thereof” with “elected by the people thereof.”
|
|
#
?
Mar 7, 2021 17:54
|
|
|
human garbage bag posted:IMO the due process clause is a bit too ambiguous and gives the SCOTUS too much leeway to legislate from the bench, it should be repealed and replaced with something longer and more specific. Like the privileges and immunities clause? 
|
|
#
?
Mar 7, 2021 17:56
|
|
|
ulmont posted:While the guarantee of a republican form of state government has not been meaningfully defined by the Supreme Court, this might be an step too far. In a 6-3 decision: “No you see the founders couldn’t figure out spelling and capitalization and therefore they clearly meant a Republican Party government, in perpetuity.”
|
|
#
?
Mar 7, 2021 17:59
|
|
|
Oracle posted:I thought the whole ‘senators must be popularly elected’ 17th amendment de jure made a popular vote mandatory. For senators, sure, so add the phrase "except for senators" to OP's statement. Doesn't help governors etc. etc.
|
|
#
?
Mar 7, 2021 18:03
|
|
|
The house and senate have to be chosen by the people of the states. The 27th amendment explicitly uses the word "elect" while art I sec. II says "chosen . . . by the people of the several states" so it would be pretty hard to stretch that to mean anything other than an election. The state elections also have to be voted upon, but there's plenty of leeway in how states decide who votes. The one election that isn't guaranteed is the presidential election. There's nothing technically unconstitutional about a state legislature passing a law that states that all presidential electors from the state will be chosen by the legislature itself instead of by vote.
|
|
#
?
Mar 7, 2021 18:31
|
|
|
Counterpoint: who's going to actually challenge the SCOTUS if they say otherwise? Obama showed with Shelby County that means more than anything else. He could, and should, have immediately announced the DOJ would not abide by Shelby County since Congress is explicitly the final say on voting rights but at the end of the day he didn't care that the SCOTUS majority made a nakedly political power grab for their party. Just as he really didn't care about Garland being ignored otherwise because he like many others figured Clinton would win and the Dems would take the Senate.Mr. Nice! posted:The one election that isn't guaranteed is the presidential election. There's nothing technically unconstitutional about a state legislature passing a law that states that all presidential electors from the state will be chosen by the legislature itself instead of by vote. Which is why some states held by the GOP that vote for not-Republican candidates are actively working on that exact change. Or how in Georgia you had the state supreme court insanity that let Kemp literally steal a seat for a Republican instead of risking it in an election that the candidate could've lost, or their current work to gut voting in the state because high turnout means the GOP's grip on the state could be broken. Evil Fluffy fucked around with this message at 18:44 on Mar 7, 2021 |
|
#
?
Mar 7, 2021 18:39
|
|
|
Mr. Nice! posted:The house and senate have to be chosen by the people of the states. The 27th amendment explicitly uses the word "elect" while art I sec. II says "chosen . . . by the people of the several states" so it would be pretty hard to stretch that to mean anything other than an election. quote:The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. Doesn't say how you get the Electors, which is the same word used for President...
|
|
#
?
Mar 7, 2021 19:03
|
|
|
ulmont posted:Doesn't say how you get the Electors, which is the same word used for President... That's just saying that the state can designate who gets to vote. Further amendments have clarified that voting cannot be restricted on a number of grounds, but otherwise states do have the ability to determine who gets to vote. It doesn't mean that they can do away with the vote. "Chosen by the people" is not an ambiguous phrase. I don't think there's a way to remove elections for state houses or the congress. There are no such restrictions for presidential electors and state governors, though. I think states could set up parliamentary style government with a prime minister chosen by the popularly elected legislature without constitutional concerns. The states are likewise authorized to choose their presidential electors.
|
|
#
?
Mar 7, 2021 19:13
|
|
|
There is also the section 2 of 14th amendment.
|
|
#
?
Mar 7, 2021 19:45
|
|
|
 Opinions! Rounding up from March 1-12.PEREIDA v. WILKINSON, ACTING ATTORNEY GENERAL TLDR: If you’re trying to request discretionary relief from a lawful removal order (deportation), you must prove that you are eligible (i.e., don’t have a disqualifying conviction). Majority Opinion (Gorsuch): Everyone agrees that Clemente Avelino Pereida entered this country unlawfully, and that the government has secured a lawful order directing his removal. The only remaining question is whether Mr. Pereida can prove his eligibility for discretionary relief. Under the Immigration and Nationality Act (INA), individuals seeking relief from a lawful removal order shoulder a heavy burden. Among other things, those in Mr. Pereida’s shoes must prove that they have not been convicted of a “crime involving moral turpitude.” Here, Mr. Pereida admits he has a recent conviction, but declines to identify the crime. As a result, Mr. Pereida contends, no one can be sure whether his crime involved “moral turpitude” and, thanks to this ambiguity, he remains eligible for relief. Like the Eighth Circuit, we must reject Mr. Pereida’s argument. The INA expressly requires individuals seeking relief from lawful removal orders to prove all aspects of their eligibility. That includes proving they do not stand convicted of a disqualifying criminal offense. … Removal proceedings begin when the government files a charge against an individual, and they occur before a hearing officer at the Department of Justice, someone the agency refers to as an immigration judge. If the proof warrants it, an immigration judge may order an individual removed for, say, entering the country unlawfully or committing a serious crime while here. … A person faced with a lawful removal order may still ask the Attorney General to “cancel” that order. To be eligible for this form of relief, a nonpermanent resident alien like Mr. Pereida must prove four things: (1) he has been present in the United States for at least 10 years; (2) he has been a person of good moral character; (3) he has not been convicted of certain criminal offenses; and (4) his removal would impose an “exceptional and extremely unusual” hardship on a close relative who is either a citizen or permanent resident of this country. Establishing all this still yields no guarantees; it only renders an alien eligible to have his removal order cancelled. … The government brought removal proceedings against Mr. Pereida, alleging that he had entered the country unlawfully and had never become a lawful resident. [Mr. Pereida] sought to establish only his eligibility for discretionary relief. At the same time, Mr. Pereida’s lawyer explained to the immigration judge that Nebraska authorities were in the middle of prosecuting his client for [attempted criminal impersonation]. … Ultimately, Mr. Pereida was found guilty, and this conviction loomed large when his immigration proceedings resumed. Before the immigration judge, everyone accepted that Mr. Pereida’s eligibility for discretionary relief depended on whether he could show he had not been convicted of certain crimes, including ones “involving moral turpitude.” And whatever else one might say about that phrase, the parties took it as given that a crime involving “fraud [as] an ingredient” qualifies as a crime involving “moral turpitude.” … As the immigration judge read the Nebraska statute, subsections (a), (b), and (d) each stated a crime involving fraud, and thus each constituted a disqualifying offense of moral turpitude. That left only subsection (c)’s prohibition against carrying on a business without a required license....The government presented a copy of the criminal complaint against Mr. Pereida showing that Nebraska had charged him with using a fraudulent social security card to obtain employment. Meanwhile, Mr. Pereida declined to offer any competing evidence of his own. In light of this state of proof, the immigration judge found that Mr. Pereida’s conviction had nothing to do with carrying on an unlicensed business in violation of subsection (c) and everything to do with the fraudulent (and thus disqualifying) conduct made criminal by subsections (a), (b), or (d). Mr. Pereida’s efforts to undo this ruling proved unsuccessful. [The courts figured out that there was no proof of what Pereida was convicted of, rather than charged with, but they concluded it was Mr. Perida’s burden to prove eligibility and not the government’s to disprove it.] … The INA states that “[a]n alien applying for relief or protection from removal has the burden of proof to establish” that he “satisfies the applicable eligibility requirements” and that he “merits a favorable exercise of discretion.” To carry that burden, a nonpermanent resident alien like Mr. Pereida must prove four things, including that he “has not been convicted” of certain disqualifying offenses, like crimes involving moral turpitude. Thus any lingering uncertainty about whether Mr. Pereida stands convicted of a crime of moral turpitude would appear enough to defeat his application for relief, exactly as the BIA and Eighth Circuit held. … [Mr. Perida] accepts that he must prove three of the four statutory eligibility requirements (his longstanding presence in the country, his good moral character, and extreme hardship on a relative)....It is only when it comes to the final remaining eligibility requirement at issue here—whether he was convicted of a disqualifying offense—that Mr. Pereida insists a different rule should apply. Yet, he identifies nothing in the statutory text singling out this lone requirement for special treatment. His concession that an alien must show his good moral character undercuts his argument too. Ambiguity about a conviction for a crime involving moral turpitude would seem to defeat an assertion of “good moral character.” And if that’s true, it’s hard to see how the same ambiguity could help an alien when it comes to the closely related eligibility requirement at issue before us. … Even if he must shoulder the burden of proving that he was not convicted of a crime involving moral turpitude, Mr. Pereida replies, he can carry that burden thanks to the so-called “categorical approach.” The Court first discussed the categorical approach in the criminal context, but it has since migrated into our INA cases. Following its strictures, a court does not consider the facts of an individual’s crime as he actually committed it. Instead, a court asks only whether an individual’s crime of conviction necessarily—or categorically—triggers a particular consequence under federal law….Because a person, hypothetically, could violate the Nebraska statute without committing fraud, the statute does not qualify as a crime involving moral turpitude. In this way, Mr. Pereida submits, he can carry any burden of proof the INA assigns him. This argument, however, overstates the categorical approach’s preference for hypothetical facts over real ones.…To determine exactly which offense in a divisible statute [containing multiple different offenses] an individual committed, this Court has told judges to employ a “modified” categorical approach, “review[ing] the record materials to discover which of the enumerated alternatives played a part in the defendant’s prior conviction.” ... Both [Mr. Pereida] and the government accept that Nebraska’s attempted criminal impersonation statute is divisible because it states no fewer than four separate offenses in subsections (a) through (d). The immigration judge, BIA, and Eighth Circuit concluded that three of these subsections—(a), (b), and (d)—constitute crimes of moral turpitude. So that left Mr. Pereida with the burden of proving as a factual matter that his conviction was for misusing a business license under subsection (c)....Mr. Pereida failed to carry that burden. … [T]his Court has never doubted that the who, what, when, and where of a conviction—and the very existence of a conviction in the first place—pose questions of fact. Nor have we questioned that, like any other fact, the party who bears the burden of proving these facts bears the risks associated with failing to do so. … This leaves Mr. Pereida to his final redoubt. Maybe the INA works as we have described. But, Mr. Pereida worries, acknowledging as much would invite “grave practical difficulties.” What if the alien’s record of conviction is unavailable or incomplete through no fault of his own? To deny aliens relief only because of poor state court record-keeping practices would, he submits, make for inefficient and unfair public policy. The dissent expands on these same policy arguments at length. Notably, though, neither Mr. Pereida nor the dissent suggests that record-keeping problems attend this case. Mr. Pereida’s immigration proceedings progressed in tandem with his criminal case, so it is hard to imagine how he could have been on better notice about the need to obtain and preserve relevant state court records about his crime. … Under the INA, certain nonpermanent aliens seeking to cancel a lawful removal order must prove that they have not been convicted of a disqualifying crime. The Eighth Circuit correctly held that Mr. Pereida failed to carry this burden. Its judgment is Affirmed. Lineup: Gorsuch, joined by Roberts,Thomas, Alito and Kavanaugh. Dissent by Breyer, joined by Sotomayor and Kagan. Barrett did not participate. Dissent (Breyer, joined by Sotomayor and Kagan): This case, in my view, has little or nothing to do with burdens of proof. It concerns the application of what we have called the “categorical approach” to determine the nature of a crime that a noncitizen (or defendant) was previously convicted of committing. That approach sometimes allows a judge to look at, and to look only at, certain specified documents. Unless those documents show that the crime of conviction necessarily falls within a certain category (here a “crime involving moral turpitude”), the judge must find that the conviction was not for such a crime. The relevant documents in this case do not show that the previous conviction at issue necessarily was for a crime involving moral turpitude. Hence, applying the categorical approach, it was not. That should be the end of the case. … We have held [in both INA and ACCA cases] that both statutes mandate a categorical approach by asking what offense a person was “convicted” of, not what acts he “committed.” The categorical approach requires courts to “loo[k] only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.” A judge, looking at a prior conviction, will read the statutory definition of the offense of conviction and decide whether anyone convicted under that offense is necessarily guilty of the type of crime that triggers federal penalties, e.g., an enhanced sentence or ineligibility for cancellation of removal. … And what is a judge to do if a state statute is “divisible” into several different offenses, some of which are aggravated felonies [the ACCA concern here similar to the INA’s moral turpitude] and some of which are not? Suppose, for example, that §123 has three subsections referring to (a) burglary of a dwelling, (b) burglary of a boat, and (c) burglary of a railroad car. Since generic burglary is of a dwelling or structure, only subsection (a) qualifies as an aggravated felony. How is the judge to know which subsection the defendant was convicted of violating? Simple, we have replied. Under the “modified categorical approach,” the judge can look to a limited set of court records to see if they say which subsection the defendant was convicted of violating. The judge can look at the charging papers and the jury instructions (if there was a jury), and the plea agreement, plea colloquy, or “some comparable judicial record” of the plea (if there was a plea), If these documents reveal that the previous conviction was for §123(a) (dwelling), then, and only then, can the judge conclude that the conviction is for an aggravated felony. ... What if, after looking at all the sources we have listed, the judge still does not know which of the three different kinds of burglary was the basis for the conviction? Suppose all the relevant documents that exist speak only of a violation of §123. Period. What then? As discussed infra, at 9, that is the question we face here, and our cases provide the answer. The judge cannot look at evidence beyond the specified court records. Instead, in such a case, the judge is to determine what the defendant necessarily admitted (or what a jury necessarily found) in order for a court to have entered a conviction under §123, since that is the conviction reflected in the permissible documents. The purpose of the modified categorical approach, like the categorical approach it helps implement, is to compare what “was necessarily found or admitted” to the elements of the generic federal offense. … The primary reason for choosing this system lies in practicality. Immigration judges and sentencing judges have limited time and limited access to information about prior convictions. … The criminal complaint says that Mr. Pereida “intentionally engage[d] in conduct which . . . constituted a substantial step in a course of conduct intended to culminate in his commission of the crime of CRIMINAL IMPERSONATION R.S. 28–608, Penalty: Class IV Felony.”...The complaint does not say which part of the statutory provision the State accuses Mr. Pereida of violating. And the majority, like the Government, concedes that some of the provisions set forth crimes that are not crimes involving moral turpitude. The journal entry and order related to the charge do not help. They say only that Mr. Pereida pleaded “no contest” to the crime charged, identifying the relevant statute as Neb. Rev. Stat. §28–201 (the attempt provision) and describing the charge as “[a]ttempt of a class 3A or class 4 felo[ny].” They do not narrow down the possible offenses because all the criminal impersonation offenses can be a Class III or Class IV felony. We cannot look to jury instructions because there was no jury. Nor is there any plea agreement, plea colloquy, or “comparable judicial record” of the plea that might help determine what Mr. Pereida admitted. As far as we know, all appropriate documents that exist were before the Immigration Judge. None shows that Mr. Pereida’s conviction necessarily involved facts equating to a crime involving moral turpitude. He may have pleaded guilty to a crime involving moral turpitude or he may not have. We do not know. The Immigration Judge thus cannot characterize the conviction as a conviction for a crime involving moral turpitude. That resolves this case. How does the majority argue to the contrary? The majority says that this case is different because which crime was the basis of a prior conviction is a factual question that the categorical approach cannot answer and a noncitizen seeking cancellation of removal, unlike a criminal defendant, bears the burden of proof on that factual question. … I agree with the majority that bearing the burden of proof goes hand in hand with being able to introduce this evidence. But in my view, Mr. Pereida cannot introduce this evidence because it goes beyond the limited record our precedents allow. Hence, he must not bear the burden of proof. In my view, the Court should follow Congress’ statute. Congress has long provided that immigration courts applying the INA provision here, like sentencing courts applying ACCA, must follow the categorical approach. Our cases make clear how that approach applies in a case like this one. We should follow our earlier decisions, particularly Taylor, Shepard, and Johnson. And, were we to do so, ineluctably they would lead us to determine that the statutory offense of which Mr. Pereida was “convicted” is not “necessarily” a “crime involving moral turpitude.” Because the Court comes to a different conclusion, with respect, I dissent. https://www.supremecourt.gov/opinions/20pdf/19-438_j4el.pdf UNITED STATES FISH AND WILDLIFE SERVICE ET AL. v. SIERRA CLUB, INC. TLDR: The U. S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) drafted biological opinions concluding that cooling water intake structures for industrial equipment were likely to jeopardize certain aquatic wildlife species if the EPA issued a proposed rule. The EPA discussed with the Services and sent a revised proposed rule. The Services issued a final “no jeopardy” opinion and the EPA finalized its rule. The Sierra Club sent a Freedom of Information Act (FOIA) request for records relating to the EPA-Services discussions. The Services said “no, those are deliberative process documents,” even if we didn’t make any final opinion on the original rule. The Services win: the deliberative process privilege protects from disclosure under FOIA in-house draft biological opinions that are both pre-decisional and deliberative, even if the drafts reflect the agencies’ last views about a proposal. Holding / Majority Opinion (Barrett) The Freedom of Information Act (FOIA) requires that federal agencies make records available to the public upon request, unless those records fall within one of nine exemptions...This case concerns the deliberative process privilege, which protects from disclosure documents generated during an agency’s deliberations about a policy, as opposed to documents that embody or explain a policy that the agency adopts. We must decide whether the privilege protects in-house drafts that proved to be the agencies’ last word about a proposal’s potential threat to endangered species. We hold that it does. the Environmental Protection Agency (EPA) proposed a rule on the design and operation of “cooling water intake structures”...When an agency plans to undertake action that might “adversely affect” a protected species, the agency must consult with the U. S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (together, “Services”) before proceeding. The goal of the consultation is to assist the Services in preparing an official “biological opinion” on whether the agency’s proposal will jeopardize the continued existence of threatened or endangered species. These opinions are known as “‘jeopardy’” or “‘no jeopardy’” biological opinions. … Staff members at NMFS completed a draft biological opinion on December 6 [2013], and staff members at FWS completed a draft on December 9. Both drafts concluded that the proposed [2013 version of the rule] was likely to jeopardize certain species and identified possible reasonable and prudent alternatives that the EPA could pursue. Staff members sent the drafts to the relevant decisionmakers within each Service and prepared to circulate them to the EPA. But decisionmakers at the Services neither approved the drafts nor sent them to the EPA. Instead, concluding that “more work needed to be done,” the decisionmakers decided to continue discussions with the EPA. … in March 2014, the EPA sent the Services a proposed rule that differed significantly from the 2013 version. Satisfied that the revised rule was unlikely to harm any protected species, the Services issued a joint final “no jeopardy” biological opinion, thereby terminating the formal consultation. The EPA issued its final rule that same day. Sierra Club...submitted FOIA requests for records related to the Services’ consultations with the EPA...The Services asserted that as drafts, the withheld documents [biological opinions on the 2013 rule] were necessarily nonfinal and therefore protected. Sierra Club sued the Services…[the 9th Circuit] held that the draft biological opinions were not privileged because even though they were labeled as drafts, they represented the Services’ final opinion that the EPA’s 2013 proposed rule was likely to have an adverse effect on certain endangered species. … [The 5th FOIA exemption] protects “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.”...this exemption incorporates the privileges available to Government agencies in civil litigation. That list includes the deliberative process privilege, attorney-client privilege, and attorney work-product privilege. This case concerns the deliberative process privilege, which is a form of executive privilege. To protect agencies from being “forced to operate in a fishbowl,” the deliberative process privilege shields from disclosure “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated,” The privilege is rooted in “the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news.” To encourage candor, which improves agency decision-making, the privilege blunts the chilling effect that accompanies the prospect of disclosure. T his rationale does not apply, of course, to documents that embody a final decision, because once a decision has been made, the deliberations are done. The privilege therefore distinguishes between predecisional, deliberative documents, which are exempt from disclosure, and documents reflecting a final agency decision and the reasons supporting it, which are not. … It is not always self-evident whether a document represents an agency’s final decision, but one thing is clear: A document is not final solely because nothing else follows it. Sometimes a proposal dies on the vine...What matters, then, is not whether a document is last in line, but whether it communicates a policy on which the agency has settled. … To decide whether a document communicates the agency’s settled position, courts must consider whether the agency treats the document as its final view on the matter...By contrast, a document that leaves agency decisionmakers “free to change their minds” does not reflect the agency’s final decision. The deliberative process privilege protects the draft biological opinions at issue here because they reflect a preliminary view—not a final decision—about the likely effect of the EPA’s proposed rule on endangered species. We start with the obvious point that the Services identified these documents as “drafts.”...The Services were scheduled to provide the EPA with draft copies of the biological opinions on December 6 and final versions by December 20. If the drafts were to be final and immune from change, there would have been little reason to include a two-week period between the Services’ circulation of the drafts and their submission of the final product. The logical inference is that the Services expected the EPA to provide comments that they might incorporate into the final opinion. Sierra Club contends, though, that while these documents may have been called “drafts,” they were actually intended to give the EPA a sneak peek at a conclusion that the Services had already reached and were unwilling to change....To determine whether the privilege applies, we must evaluate not whether the drafts provoked a response from the EPA but whether the Services treated them as final. They did not. The drafts were prepared by lower-level staff and sent to the Services’ decisionmakers for approval. Sierra Club characterizes the drafts as polished documents lacking only an autopen signature. But the determinative fact is not their level of polish—it is that the decisionmakers at the Services neither approved the drafts nor sent them to the EPA. … It is true, as Sierra Club emphasizes, that the staff recommendations proved to be the last word within the Services about the 2013 version of the EPA’s proposed rule. But that does not change our analysis. The recommendations were not last because they were final; they were last because they died on the vine. Further consultation with the Services prompted the EPA to alter key features of its 2013 proposal, so there was never a need for the Services to render a definitive judgment about it. ... If the evidence establishes that an agency has hidden a functionally final decision in draft form, the deliberative process privilege will not apply. The Services, however, did not engage in such a charade here. The deliberative process privilege protects the draft biological opinions from disclosure because they are both predecisional and deliberative. We reverse the contrary judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Lineup: Barrett, joined by Roberts, Thomas, Alito, Kagan, Gorsuch, and Kavanaugh. Dissent by Breyer, joined by Sotomayor.. Dissent (Breyer, joined by Sotomayor): Because the word “draft” may here prove misleading, it should help the reader understand my argument if he or she keeps in mind three different but related kinds of documents: “Final Biological Opinions,” “Draft Biological Opinions,” and “Drafts of Draft Biological Opinions.” A Final Biological Opinion, as its name suggests, embodies a final agency decision, for example, a decision by the Services that a proposed Environmental Protection Agency (EPA) action will jeopardize an endangered species. We all agree, I believe, that a Final Biological Opinion is not deliberative and that Exemption 5 of the Freedom of Information Act (FOIA) does not protect it from disclosure. I also agree with the Court about the third kind of document, a Draft of a Draft Biological Opinion. That kind of document normally is not final. It normally is deliberative. And Exemption 5 normally protects it from disclosure. But what about the second kind of document, a Draft Biological Opinion? Does it normally set forth a “final” Services view, or is it normally a “deliberative” document? I agree with the Court that whether a document is “final” or “deliberative” primarily depends upon its “function[]” within an agency’s decision-making process...I believe that, in the context before us, the Services’ Draft Biological Opinions reflect “final” decisions regarding the “jeopardy” the EPA’s then-proposed actions would have caused. Hence, they would normally fall outside, not within, Exemption 5. Five features of the Draft Biological Opinion lead me to this conclusion. First, literally speaking, a Draft Biological Opinion is a “final” document with respect to its content. That is in fact the key difference between a Draft Biological Opinion and a Draft of a Draft Biological Opinion. If further deliberation about the draft’s content is likely, the document is not a Draft Biological Opinion. It is a Draft of a Draft. … Second, a Final Biological Opinion and a Draft Biological Opinion finding jeopardy serve the same functions within the formal administrative process. Both explain the Services’ findings. Both set forth “reasonable and prudent” modifications or alternatives. And both have substantially the same effect on the EPA (the action agency in this case). … Third, agency practice shows that the Draft Biological Opinion, not the Final Biological Opinion, is the document that informs the EPA of the Services’ conclusions about jeopardy and alternatives and triggers within the EPA the process of deciding what to do about those conclusions. Amici tell us without contradiction that “out of 6,829 formal consultations” between 2008 and 2015, the Fish and Wildlife Service “issued a [Final Biological Opinion finding] jeopardy” “only twice.” … Fourth, permitting discovery of Draft Biological Opinions under FOIA is unlikely to chill frank discussion within a Service because the Services’ staff are already aware that these Drafts may well be made public. And for good reason. When a private party prompts the agency action under review, say, by seeking an EPA permit, regulations require the Service to make the Draft Biological Opinion available to the private applicant, removing the Draft Biological Opinion from Exemption 5’s protection. … Fifth, legal consequences flow from the Services’ completion of a Draft Biological Opinion. The Services’ regulations state that “[i]f requested, the Service shall make available to the Federal agency [i.e., the EPA] the draft biological opinion for the purpose of analyzing the reasonable and prudent alternatives.” Once the Draft Biological Opinion is under review at the EPA, the Services may not issue a Final Biological Opinion prior to the specified deadline. … In sum, the likely finality of a Draft Biological Opinion, its similarity to a Final Biological Opinion, the similar purposes it serves, the agency’s actual practice, the anomaly that would otherwise exist depending upon the presence or absence of a private party, and the presence of at least some regulation-based legal constraints—convince me that a Draft Biological Opinion would not normally enjoy a deliberative privilege from FOIA disclosure. The question remains whether the particular documents at issue here are Draft Biological Opinions or Drafts of Draft Biological Opinions. As the majority points out, there are reasons to believe some of them may be the latter. … Given the fact-intensive nature of this question, I would remand to allow the Court of Appeals to determine just how much work was left to be done. If the court determines that the documents are merely Drafts of Draft Biological Opinions, I agree with the majority that a segregability analysis would be appropriate. For these reasons, with respect, I dissent. https://www.supremecourt.gov/opinions/20pdf/19-547_new_i42k.pdf CHIKE UZUEGBUNAM, ET AL., PETITIONERS v. STANLEY C. PRECZEWSKI, ET AL TLDR: Q. Is a case moot if all the court can award is a nominal damages award, like $1? A. No, at least if you’re an evangelical Christian suing a college for not letting you rant. Majority Opinion (Thomas): At all stages of litigation, a plaintiff must maintain a personal interest in the dispute. The doctrine of standing generally assesses whether that interest exists at the outset, while the doctrine of mootness considers whether it exists throughout the proceedings. To demonstrate standing, the plaintiff must not only establish an injury that is fairly traceable to the challenged conduct but must also seek a remedy that redresses that injury. And if in the course of litigation a court finds that it can no longer provide a plaintiff with any effectual relief, the case generally is moot. This case asks whether an award of nominal damages by itself can redress a past injury. We hold that it can. In 2016, [Chike] Uzuegbunam [an evangelical Christian] decided to share his faith at Georgia Gwinnett College, a public college where he was enrolled as a student. At an outdoor plaza on campus near the library where students often gather, Uzuegbunam engaged in conversations with interested students and handed out religious literature. A campus police officer soon informed Uzuegbunam that campus policy prohibited distributing written religious materials in that area and told him to stop....The [college’s Director of the Office of Student Integrity] explained that Uzuegbunam could speak about his religion or distribute materials only in two designated “free speech expression areas,” which together make up just 0.0015 percent of campus. And he could do so only after securing the necessary permit. Uzuegbunam then applied for and received a permit to use the free speech zone. Twenty minutes after Uzuegbunam began speaking on the day allowed by his permit, another campus police officer again told him to stop, this time saying that people had complained about his speech. Campus policy prohibited using the free speech zone to say anything that “disturbs the peace and/or comfort of person(s).”...Another student who shares Uzuegbunam’s faith, Joseph Bradford, decided not to speak about religion because of these events. Both students sued a number of college officials in charge of enforcing the college’s speech policies, arguing that those policies violated the First Amendment. As relevant here, they sought nominal damages and injunctive relief. ... the college officials decided to get rid of the challenged policies. They then moved to dismiss, arguing that the suit was moot, because of the policy change. The students agreed that injunctive relief was no longer available, but they disagreed that the case was moot. They contended that their case was still live because they had also sought nominal damages. The District Court dismissed the case, holding that the students’ claim for nominal damages was insufficient by itself to establish standing. … We granted certiorari to consider whether a plaintiff who sues over a completed injury and establishes the first two elements of standing (injury and traceability) can establish the third by requesting only nominal damages. … To satisfy the “‘irreducible constitutional minimum’” of Article III standing, a plaintiff must not only establish (1) an injury in fact (2) that is fairly traceable to the challenged conduct, but he must also seek (3) a remedy that is likely to redress that injury. There is no dispute that Uzuegbunam has established the first two elements. The only question is whether the remedy he sought—nominal damages—can redress the constitutional violation that Uzuegbunam alleges occurred when campus officials enforced the speech policies against him. … The parties here agree that courts at common law routinely awarded nominal damages. They, instead, dispute what kinds of harms those damages could redress. Both sides agree that nominal damages historically could provide prospective relief. The award of nominal damages was one way for plaintiffs at common law to “obtain a form of declaratory relief in a legal system with no general declaratory judgment act.” … The parties disagree, however, about whether nominal damages alone could provide retrospective relief. Stressing the declaratory function, respondents argue that nominal damages by themselves redressed only continuing or threatened injury, not past injury. But cases at common law paint a different picture. Early courts required the plaintiff to prove actual monetary damages in every case...Later courts, however, reasoned that every legal injury necessarily causes damage, so they awarded nominal damages absent evidence of other damages (such as compensatory, statutory, or punitive damages), and they did so where there was no apparent continuing or threatened injury for nominal damages to redress. .. That this rule developed at common law is unsurprising in the light of the noneconomic rights that individuals had at that time. A contrary rule would have meant, in many cases, that there was no remedy at all for those rights, such as due process or voting rights, that were not readily reducible to monetary valuation. By permitting plaintiffs to pursue nominal damages whenever they suffered a personal legal injury, the common law avoided the oddity of privileging small-dollar economic rights over important, but not easily quantifiable, nonpecuniary rights. … Respondents and the dissent attempt to discount this historical line of cases by contending that something other than nominal damages provided redressability. They argue instead that courts could award nominal damages only when a plaintiff pleaded compensatory damages but failed to prove a specific amount. In those circumstances, they say, the plea for compensatory damages is what satisfied the redressability requirement, and courts awarded nominal damages merely as a technical matter. We do not agree. … The dissent [by Roberts] worries that after today the Judiciary will be required to weigh in on legal questions “whenever a plaintiff asks for a dollar.” Post, at 9. But petitioners still would have satisfied redressability if instead of one dollar in nominal damages they sought one dollar in compensation for a wasted bus fare to travel to the free speech zone. The dissent “would place a higher value on Article III” than a dollar. Post, at 1; but see Sprint Communications Co. v. APCC Services, Inc., 554 U. S. 269, 305 (2008) (ROBERTS, C. J., dissenting) (“Article III is worth a dollar”). But Congress abolished the statutory amount-in-controversy requirement for federal-question jurisdiction in 1980. And we have never held that one applies as a matter of constitutional law. … Applying this principle here is straightforward. For purposes of this appeal, it is undisputed that Uzuegbunam experienced a completed violation of his constitutional rights when respondents enforced their speech policies against him. Because “every violation [of a right] imports damage,” nominal damages can redress Uzuegbunam’s injury even if he cannot or chooses not to quantify that harm in economic terms. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Lineup: Thomas, joined by Breyer, Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh, and Barrett. Concurrence by Kavanaugh. Dissent by Roberts. We may not see a lineup this hosed again for a long time. Concurrence (Kavanaugh): I agree with the Court that, as a matter of history and precedent, a plaintiff’s request for nominal damages can satisfy the redressability requirement for Article III standing and can keep an otherwise moot case alive. I write separately simply to note that I agree with THE CHIEF JUSTICE and the Solicitor General that a defendant should be able to accept the entry of a judgment for nominal damages against it and thereby end the litigation without a resolution of the merits. Dissent (Roberts): Petitioners Chike Uzuegbunam and Joseph Bradford want to challenge the constitutionality of speech restrictions at Georgia Gwinnett College. There are just a few problems: Uzuegbunam and Bradford are no longer students at the college. The challenged restrictions no longer exist. And the petitioners have not alleged actual damages. The case is therefore moot because a federal court cannot grant Uzuegbunam and Bradford “any effectual relief whatever.” The Court resists this conclusion, holding that the petitioners can keep pressing their claims because they have asked for “nominal damages.” In the Court’s view, nominal damages can save a case from mootness because any amount of money—no matter how trivial—“can redress a past injury.” But an award of nominal damages does not alleviate the harms suffered by a plaintiff, and is not intended to. If nominal damages can preserve a live controversy, then federal courts will be required to give advisory opinions whenever a plaintiff tacks on a request for a dollar. Because I would place a higher value on Article III, I respectfully dissent. … The Court’s initial premise is that we must “look to the forms of relief awarded at common law” in order to decide “whether nominal damages can redress a past injury.” Because the Court finds that “nominal damages were available at common law in analogous circumstances” to the ones before us, it “conclude[s] that a request for nominal damages satisfies the redressability element of standing where a plaintiff ’s claim is based on a completed violation of a legal right.” Any lessons that we learn from the common law, however, must be tempered by differences in constitutional design. The structure and function of 18th-century English courts were in many respects irreconcilable with “the role assigned to the judiciary in a tripartite allocation of power.” Perhaps most saliently, in England “all jurisdictions of courts [were] either mediately or immediately derived from the crown,” an organizational principle the Framers explicitly rejected by separating the Executive from the Judiciary. This difference in organization yielded a difference in operation. To give just one example, “English judicial practice with which early Americans were familiar had long permitted the Crown to solicit advisory opinions from judges.” We would not look to such practice for guidance today if a plaintiff came into court arguing that advisory opinions were in fact an appropriate form of Article III redress. We would know that they are not. We likewise should know that a bare request for nominal damages is not justiciable because the plaintiff cannot “benefit in a tangible way from the court’s intervention.” … the Court acknowledges in several places that the historical record is mixed as to whether legal violations were actionable at all without a showing of compensable harm. And the Court does not cite any case in which plaintiffs sought only nominal damages for purely retrospective injuries. The Court instead relies on several decisions that contained live damages claims, or involved prospective harm to the plaintiff ’s reputation. The Court also appeals to “categorical” and “definitive” statements by Lord Chief Justice Holt and Justice Story, that “every injury imports a damage,” These statements, however, bear less weight than the Court suggests. Lord Holt was alone in dissent in Ashby (no shame there), and although his opinion has been cited favorably by subsequent cases and commentary, his colleagues disagreed with him. … At bottom, the Court relies on a handful of indeterminate sources to justify a radical expansion of the judicial power. The Court acknowledges that “the rule allowing nominal damages for a violation of any legal right . . . was not universally followed,” ante, at 7, but even this concession understates the equivocal nature of the historical record. I would require more before bursting the bounds of Article III. … The best that can be said for the Court’s sweeping exception to the case-or-controversy requirement is that it may itself admit of a sweeping exception: Where a plaintiff asks only for a dollar, the defendant should be able to end the case by giving him a dollar, without the court needing to pass on the merits of the plaintiff ’s claims. Although we recently reserved the question whether a defendant can moot a case by depositing the full amount requested by the plaintiff, our cases have long suggested that he can. The United States agrees, arguing in its brief in “support” of the petitioners that “the defendant should be able to end the litigation without a resolution of the constitutional merits, simply by accepting the entry of judgment for nominal damages against him.” The defendant can even file an offer of judgment for one dollar, rendering the plaintiff liable for any subsequent costs if he receives only nominal damages. This is a welcome caveat, and it may ultimately save federal courts from issuing reams of advisory opinions. But it also highlights the flimsiness of the Court’s view of the separation of powers. The scope of our jurisdiction should not depend on whether the defendant decides to fork over a buck. … The Judiciary is authorized “to say what the law is” only because “[t]hose who apply [a] rule to particular cases, must of necessity expound and interpret the rule.” Today’s decision abandons that principle. When a plaintiff brings a nominal damages claim in the absence of past damages or future harm, it is not “necessary to give an opinion upon a question of law.” It is instead a “gratuitous” exercise of the judicial power, Simon v. Eastern Ky. Welfare Rights Organization, and expanding that power encroaches on the political branches and the States. Perhaps defendants will wise up and moot such claims by paying a dollar, but it is difficult to see that outcome as a victory for Article III. Rather than encourage litigants to fight over farthings, I would affirm the judgment of the Court of Appeals. https://www.supremecourt.gov/opinions/20pdf/19-968_8nj9.pdf
|
|
#
?
Mar 12, 2021 17:38
|
|
|
That is a hosed lineup all right. Also, I want to know what Kagan was thinking in the fish case.
|
|
#
?
Mar 12, 2021 17:45
|
|
|
ok, what am I missing, why is no one even mentioning "Capable of repetition yet evading review" because that doctrine seems directly applicable?
|
|
#
?
Mar 12, 2021 17:54
|
|
|
Hieronymous Alloy posted:ok, what am I missing, why is no one even mentioning "Capable of repetition yet evading review" because that doctrine seems directly applicable? School changed the policy already, so there's no "capable of repetition" argument.
|
|
#
?
Mar 12, 2021 17:56
|
|
|
Platystemon posted:That is a hosed lineup all right. I have a hunch that a former Solicitor General really feels this part: quote:The privilege is rooted in “the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news.” To encourage candor, which improves agency decision-making, the privilege blunts the chilling effect that accompanies the prospect of disclosure. but I think she perceives it through a lens of good faith whereas ACB is just being an executive privilege maximalist.
|
|
#
?
Mar 12, 2021 17:59
|
|
|
Kalman posted:School changed the policy already, so there's no "capable of repetition" argument. That's absurd though; school could arbitrarily change it back at any point, right? Or was there some sort of binding process or agreement to prevent that? Part of the nominal-damages settlement ? If entities can moot a case by simply stating their policies are different now then all an entity has to do is say "ok, pinky swear i'tll be different" until the lawyers have all gone home then woops you know what we changed our minds again. It's a one weird trick to get out of jail free for any non-monetary litigation. Hieronymous Alloy fucked around with this message at 18:05 on Mar 12, 2021 |
|
#
?
Mar 12, 2021 18:01
|
|
|
FAUXTON posted:I have a hunch that a former Solicitor General really feels this part: My reaction to this is that the Services’ processes are bad and if they didn’t want their discussions to be subject to FOIA, they should have issued formal statements so that the candid discussions wouldn’t be the only word on the matter. Their candor isn’t being chilled by that meddling Sierra Club. It’s being chilled by their own incompetence, but not really because if they were thinking about potential FOIA activity, they would have taken action to get their ducks in a row. If the court had ruled against them, they would have been pressured to improve their processes to prevent a repeat, but now they never will and a bunch of agencies will use this as a loophole. This is all rather arcane so I could be off base here.
|
|
#
?
Mar 12, 2021 18:19
|
|
|
Roberts, in lone dissent posted:Lord Holt was alone in dissent in Ashby (no shame there) I chuckled at this.
|
|
#
?
Mar 12, 2021 19:13
|
|
|
Hieronymous Alloy posted:That's absurd though; school could arbitrarily change it back at any point, right? Or was there some sort of binding process or agreement to prevent that? Part of the nominal-damages settlement ? Yep. See also: NYSRPA v. New York.
|
|
#
?
Mar 12, 2021 19:27
|
|
|
Dead Reckoning posted:Yep. See also: NYSRPA v. New York. Ok, yeah, that tracks then. I wasn't connecting the dots and therefore didn't realize that "moot" in Supreme Court parlance no longer means "no longer in controversy," but rather only "we don't want to deal with it."
|
|
#
?
Mar 12, 2021 19:45
|
|
|
Hieronymous Alloy posted:That's absurd though; school could arbitrarily change it back at any point, right? Or was there some sort of binding process or agreement to prevent that? Part of the nominal-damages settlement ? If you keep swapping back to it, then it's going to get treated as "capable of repetition." But if they fix the problem, courts don't want to deal with it/will claim they're not allowed to deal with it. It's the same reason they're dismissing all the Trump-era cases now that Biden has changed the rule - yes, they could theoretically change it back, but in practice that's not treated as capable of repetition. Kalman fucked around with this message at 21:17 on Mar 12, 2021 |
|
#
?
Mar 12, 2021 21:15
|
|
|
|
| # ? Jun 7, 2024 16:00 |
|
|
Which is, of course, changing the standard. "Capable of," not "actually repeated." But the burden falls on plaintiffs so who cares right?
|
|
#
?
Mar 12, 2021 23:32
|
|