CL&P Blog

How much do district court judges tell us about the ideology of a President's appointees?

Earlier this month, the Washington Post blogged about a study purporting to show that President Obama’s judicial appointments are (in the words of the headline) “liberal, but not that liberal.” That may well be a fair characterization; anecdotally, it sounds right. But the study purports to do something much more serious than give an off-the-cuff subjective judgment: the study renders this conclusion as an empirical finding. Specifically, the authors, Professors Robert A. Carp (University of Houston) and Kenneth L. Manning (U. Mass.-Dartmouth) analyzed decisions by district court judges from 1933 to the present in order to render conclusions about the overall liberalism of President Obama’s appointees as compared with the appointees of previous Presidents.

The selection of this sample is dubious; as a result, the study does not demonstrate what it purports to demonstrate. The problem is that the authors chose to analyze the decisions of district court judges, who are the most constrained decisionmakers in the federal judicial hierarchy.

No longer too big to jail?

As the New York Times reports today,

Federal prosecutors are nearing criminal charges against some of the world’s biggest banks, according to lawyers briefed on the matter, a development that could produce the first guilty plea from a major bank in more than two decades.

The two banks highlighted are foreign banks, BNP Parabas and Credit Suisse, but the article suggests that U.S. banks are under investigations that aren't yet as far along.

The story cautions that despite the new aggressive approach by Attorney General Holder and U.S. Attorney for the Southern District of New York Preet Bharara, "[d]epending on the regulator — American and European banks are divided among a patchwork of agencies in New York and Washington — the path to filing charges could still be difficult."

Read the whole story here.

 

Congressional investigation of race-discrimination claims against the CFPB ramping up

Here.

Student-loan collection

Our readers may be interested in Collection of Student Loans: A Critical Examination by law professor Doug Rendelman and lawyer Scott Weingart. Here is the abstract:

Although the collection of college student loans centers this article, some background precedes its main topic. It begins by defining and distinguishing federal and private student loans. Next is repayment of loans, postponing repayment through deferment, forbearance, extensions, and public-interest assistance and cancellation. Perkins loan deferment, forbearance, and cancellation follow. Delinquency and default are next, including collection fees and penalties, administrative wage garnishment, state and federal income-tax-refund offsets, federal benefits offsets, and professional-license suspension. The lender’s judicial collection is followed by the borrower’s limited affirmative defenses and post-judgment tools. A borrower may exit default through consolidation and rehabilitation. There are two types of statutory discharges: school-related discharges and discharges for death and disability. The article turns to discharge of student loans in federal bankruptcy; the scope of the discharge exception leads to the rigorous statutory test, “undue hardship.” The article also compares collection techniques and policy justifications for delinquent family support with collection of student loans. Like a maze, educational debt is easy to enter but difficult to exit. The important policy that a debtor should pay her just debts isn’t an absolute. Life happens. Considering the formidable pre- and post-judgment collection techniques and the absence of defenses like of the statute of limitations, the student-loan borrower’s only sure exit is the final exit of death. The article concludes by recommending that the delinquent student-loan borrower’s plight be ameliorated. Treatment of student-loan debt like other debt, for example like credit-card debt, is a consummation sincerely to be wished.

Octane Fitness: Supreme Court rejects bad faith and clear and convincing evidence requirements for fees in patent cases

by Paul Alan Levy    

In a decision issued this morning in Octane Fitness v. Icon Health and Fitness, the Supreme Court held that attorney fee awards in patent cases depend on an assessment of the totality of the circumstances, and that either the substantive weakness of the losing party's litigating position (including both facts and law) or the unreasonable manner in which the case was litigated, can be enough to warrant an award of fees.  The Court specifically rejected the Federal Circuit's rule demanding both subjective bad faith and clear and convincing evidence that fees are proper.

The ruling is a clear victory for the fight against patent trolls (although that concept, which was heavily featured in the briefing, went unmentioned in the Court's ruling).   And given the close resemblance between the attorney fee provisions of the patent statute and of the Lanham Act, I expect the decision will also be a useful weapon in the fight against trademark bullying.  The upcoming appeal of an attorney fee award against Jenzabar for its relentless pursuit of a documentary film-maker for its unflattering portrayal of Jenzabar's founders may show the value of Octane Fitness in the trademark context.

Bloomberg Businessweek: Business Gears Up for Assault on Consumer-Protection Laws

Here.  And here is a video of the event described in the article.

Ninth Circuit reverses denial of class certification in age discrimination case

by Jocelyn Larkin, guest blogger

The Ninth Circuit issued a favorable opinion yesterday in Stockwell v. City and County of San Francisco, No. 12-15070, reversing the denial of class certification in a disparate impact age discrimination class action.  The opinion was written by Judge Marsha Berzon, and joined by Judges Fisher and Wallace.  The decision deals only with the district court’s determination that Rule 23(a)(2) commonality was not satisfied, concluding that the lower court (Judge Hamilton) impermissibly considered merits questions.

The case involves a 1998 promotion test (the Q-35) used by the San Francisco Police Department to fill Assistant Inspector positions and to create a list for future promotions.  (The test was administered at the tail end of a consent decree covering race and gender discrimination in the PD and was subject to the court’s jurisdiction.)  In 2005, before the Q-35 promotion list was exhausted, the Department decided to administer and use a new Sergeants’ exam (Q-50) to fill openings equivalent to Assistant Inspector.   The Chief of Police claimed that the change was being made to “improve operational flexibility and rationalize the promotional progression.”  Those remaining on the Q-35 list sued under ADEA and the California Fair Employment and Housing Act, alleging that the decision had a disparate impact on those over 40. (After a first failed attempt at class certification, plaintiffs dropped their disparate treatment claim.)

New York Department of Financial Services Brings Dodd-Frank Case

by Jeff Sovern

The Dodd-Frank Act, in section 1031, authorizes the CFPB to bring actions to prevent abusive, deceptive, and unfair practices. Section 1042 gives states the power to enforce Dodd-Frank provisions as well.  Accordingly, as reported here, here, and here, on Wednesday New York’s Department of Financial Services, led by Ben Lawsky, brought what has been described as the first such state action. I suspect that state officials who believe in protecting consumers will find Dodd-Frank a valuable aid. For example, while the New York statutes give its attorney general the power to pursue deceptive practices and repeated fraudulent or illegal acts, they don’t extend to unfair or abusive practices that are not deceptive or otherwise illegal.  In other words, Dodd-Frank enables state consumer protection offices to bring cases that they might not otherwise be able to bring when consumers are being treated unfairly or abusively.  Some states, unlike New York, already give their attorneys general the power to bring cases when they find unfair practices, so in such states the Dodd- Frank statute may be less significant.   

It is quite common for federal consumer protection statutes to give states enforcement powers, and for good reason.  Federal regulators have limited budgets and so can’t bring every meritorious case. State consumer protection agencies might have a better sense of what is going on locally than federal regulators. Finally, sometimes government agencies are captured by the industry they are supposed to regulate. For example, former President Bush appointed a bank lobbyist to head a key bank regulatory agency, the Office of the Comptroller of the Currency.  That agency later declared state anti-predatory lending laws inapplicable to national banks, thus protecting the banks rather than consumers.  If the Consumer Financial Protection Bureau is ever captured by the financial industry, and so stops enforcing the Dodd-Frank Act, the states will be able to pick up the slack.

Fed Call for Papers on Economic Inequality

The Community Affairs Officers of the Federal Reserve System invite paper submissions for the ninth biennial Federal Reserve System Community Development Research Conference on April 2-3,
2015 in Washington, D.C.

The Federal Reserve System Community Development Research Conference is a unique event that aims to bridge the gap between research, policy and practice on key issues facing the country. High-quality and emerging research is presented in a dialogue with policymakers and community practitioners who can utilize the lessons gleaned from research.

The 2015 conference seeks to inform a robust public conversation about economic mobility. Profound economic forces, most recently those associated with the Great Recession, have challenged the financial stability and optimism of families, the prosperity of communities, and the sustained growth of the U.S. economy. These challenges have led to widespread public debate over whether and how the prospect of economic mobility (moving up the economic ladder) has changed in the U.S. Conference organizers hope to use the broad theme of economic mobility to advance our understanding about how people and communities get ahead, where impediments exist, how factors such as inequality play a role, and what has changed over time.

To add to this dialogue, the Federal Reserve invites original, high-quality research from a range of disciplines that can inform and affect how policy is formed and how community practice is carried out. Submissions for plenary, concurrent and poster sessions are invited in three broad categories: families, communities and the economy. Submissions may also span more than one category. Researchers are invited to consider the following questions or similar themes:

How Much Do Airlines Make from Unused, Nonrefundable Tickets?

That's what Ralph Nader and Theresa Amato have been asking for years.  As the Times reported here, the airlines won't say. And as Amato notes here, the Department of Transportation isn't making them provide the information either. Amato speculates that it could be billions.