Greenhouse Gases, and Other Hot Air

In American Electric Power Co. v. Connecticut, the Supreme Court is faced with the next, inevitable step in a line of climate change litigation including, most notably, Massachusetts v. EPA in 2007.  The case includes, as did Massachusetts, a jurisdictional question of whether the plaintiff states and land trusts have standing, either under Article III or under the “prudential” principles of standing.  Perhaps of broader interest, however, is the substantive question facing the Court, which is whether, in light of the powers vested in the Environmental Protection Agency under the Clean Air Act, a federal common law public nuisance claim is the proper course by which to seek redress for the rise in global temperatures to which the defendants are alleged to be substantial contributors.

The power companies’ and the government’s positions in this case are mostly aligned, in that both seek to have the complaint dismissed, although on slightly different jurisdictional grounds. 

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SCOTUS to Consider Scope of Ministerial Exception

When the Wisconsin Supreme Court decided Coulee Catholic Schools v. LIRC, 2009 WI 88 , Professor Esenberg and I both took to this blog to praise Justice Gableman’s majority decision. The decision is undoubtedly the most important religious liberty case in Wisconsin since Jackson v. Benson (1998) and State v. Miller (1996). It concerned the scope of the “ministerial exception” to anti-discrimination employment laws and the status of a teacher in a religious school.

Recently, the U.S. Supreme Court accepted cert in Hosanna-Tabor Lutheran Church & School v. EEOC. The case presents the same basic question as Coulee: does the ministerial exception include “a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship”?  

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Connick v. Thompson: Both Answers Are Right — What Was the Question Again?

In Supreme Court cases, the majority and dissent sometimes talk right past one another, framing the question for decision so differently that they almost seem to be writing about different cases.  See, e.g., the dueling opinions earlier this week in Connick v. Thompson (No. 09-571).  Thompson was convicted of attempted armed robbery and murder, and then sentenced to death.  A month before his execution, a bloodstained swatch of cloth came to light that proved Thompson was not the perpetrator in the robbery prosecution.  The murder charge was eventually retried, and Thompson was acquitted.  In all, he served 18 years in prison based on his wrongful convictions.  Moreover, it turns out that an assistant district attorney who was part of the team that prosecuted Thompson deliberately withheld the swatch.  The District Attorney’s office now concedes that Thompson’s constitutional rights were violated under Brady v. Maryland.  The question now is whether the DA’s office should be civilly liable to Thompson for this violation.

Prior cases interpreting 42 U.S.C. § 1983 (the federal civil rights law Thompson invoked in his lawsuit) reject vicarious liability for the government when a government employee violates consitutional rights; in order to recover, as matters unfolded, Thompson was obliged to show that the District Attorney had been deliberately indifferent to a need to train his subordinates regarding their Brady responsibilities.  Prior cases also establish that a “failure to train” claim must ordinarily be based on multiple violations of constitutional rights; a single violation, such as that suffered by Thompson, would require extraordinary circumstances to justify relief.

So much everyone agreed on. 

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