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About to listen to the oral argument in Uzueghunam v. Preczewski, the nominal damages case at SCOTUS today. Very more than nominal case!
https://www.c-span.org/video/?506849-1/uzuegbunam-v-preczewski-oral-argument
https://www.c-span.org/video/?506849-1/uzuegbunam-v-preczewski-oral-argument
The Chief seems pretty skeptical, at least during Petitioners' argument.
Thomas asks if nominal damages can be "real and substantial." Petitioners' counsel says it is because it's a constitutional violation.
Alito asks if nominal damages are about the difficulty of monetizing damages, or if it's really just symbolic. Counsel says the former. Alito then says early ND cases seem to have had NDs to be a "consolation prize."
Sotomayor asks interesting question: Could you make an offer of judgment of one dollar? And would that be on the merits, or really just be a dollar? Counsel seems to say it would be in the district court's discretion.
Kagan: Are NDs a form of compensatory damages, or something else? Counsel says different b/c not proven with specificity & quantifiable, which you can't do with con harms, also could waive at common law.
Also Kagan: Seems A3 doesn't allow for pure vindication. Counsel says NDs are still some redress.
Gorsuch: Can't we expect lawyers to creatively come up with imaginative damages theories? Counsel: that's a bad incentive (good answer!).
Kavanaugh: Not much at stake b/c of offer of judgment. Counsel (as with Sotomayor's Q): offer of judgment wouldn't be on the merits, or at least is an open question at SCOTUS, & not briefed sufficiently.
Also Kav: What's up with attorneys fees? Counsel: would be available (doesn't claim that gives jurisdiction alone).
Barrett: Are NDs backward looking relief: Counsel: Yes. Barrett: Compensating for unquantifiable harm? Counsel: Yes. Barrett: Any time case would be moot if ND is around & had had prospective? Counsel: Not really (I think?).
Now in the second counsel on Petitioners' side. Similar concerns from justices. Breyer asks the floodgates question, and says 11th circuit's line seems ok. Counsel: ND was good enuf at common law.
Breyer really into it and steps on Alito's time. Chief tries to cut him off 3 times!
Sotomayor: What plans does he have to prove he had? Counsel: Can't be just generalized grievance. Ultimately question is what he intending on doing something and was that chilled. Prospective suit injury-in-fact is the same. (Good answer)
Kagan says history might not be so clear. Some cases were Dec actions before that really existed. Others were from a time that was hard to monetize stuff. We're better at that now! & others were vindication cases. A3 says those don't work. So what's left?
Counsel pushes back on Kagan's history. Cites Justice Story.
And Gorsuch lets him continue to answer. Continues to dig into common law precedents. G follows up on the history, asks about how we monetize. Counsel: 1983 means you At Least get a dollar.
Gorsuch: You shouldn't be penalized for not having a clever lawyer (in terms of ginning up damages).
Gorsuch very into Petitioners, it seems, & that history is on their side.
Gorsuch very into Petitioners, it seems, & that history is on their side.
Kavanaugh asks about attys fees really driving things. Counsel says it can for defendants, but many just don't want to admit to anything wrong (yes, that's right!).
Kavanaugh says NDs maybe seem like a run around the requirement for a judgment for attorneys fees.
(Kavanugh not too familiar with realities public interest litigation if he things attorneys fees are really what this is about.)
(Kavanugh not too familiar with realities public interest litigation if he things attorneys fees are really what this is about.)
Barrett asks about floodgates. Counsel says not a concern from a practical matter.
Now gov's lawyer is up. Argues NDs aren't compensation. A symbol, and mean there's zero compensation due. Common law bears this out.
Chief asks if NDs never good enuf. Counsel says they're really a dec judgment, & if you can't get that then you can't get them, although doesn't give an absolute answer.
Thomas asks if NDs awarded at SCOTUS when actual damages haven't been figured out. Counsel says a couple. Thomas says how did they have standing? Counsel says compensatory damages gave standing. At CL not plead separately.
Thomas then says isn't that at war with standing? Counsel says at CL was different.
Not sure how justices will tease all this CL stuff out. CL was indeed a simpler (& more rational!) time.
Not sure how justices will tease all this CL stuff out. CL was indeed a simpler (& more rational!) time.
Breyer goes back to Blackacre & trespass on it via picnicking. Second time he's raised it.
@mollyxbrady do you keep track of Blackacre mentions at SCOTUS arguments?
@mollyxbrady do you keep track of Blackacre mentions at SCOTUS arguments?
Counsel says NDs aren't about real harm. Most cases aren't about small harms but about changing the law, & prospective relief is for that (fails to address the wack-a-mole problem though).
Alito asks if Congress could fix this and allow ND claims. Counsel says probably not because if trivial it's still trivial. Alito says what if claim is $10 not 1? Counsel says hard line to draw. Alito says yes, so help.
Oh, counsel seems to indicate only if $1 or below that it's a problem for Congress making statutory damages. So are $10 ND claims ok?
Alito says when can NDs actually succeed? Counsel again says CL courts didn't distinguish between the 2 damages until judgment.
(Alito was really pro NDs in last year's NY 2d Amendment case. Seems still that way.)
(Alito was really pro NDs in last year's NY 2d Amendment case. Seems still that way.)
Sotomayor asks about punitive damages. Counsel says they're not the same legal roadblock of zero, essentially, damages. Sotomayor then says NDs seem like an alternative form of compensation.
Kagan throws out there Taylor Swift's sexual assault case. Not about the money, only asked for a dollar, got it. What's up with that? Counsel says sounds like compensatory damages. Has to compensate. Seems like he says she couldn't have brought it in an A3 court?
Gorsuch brings up Taylor Swift again, & says turns on the label of compensation & courts have to figure that out. Counsel says yes. G says that disadvantages people not out for cash, like Taylor Swift & religious groups & those without clever lawyers & economists.
Counsel disagrees that that's why NDs were invented. Not that hard to come up with damages, like emotional distress. And says vindication just isn't why we have federal courts.
Kav says a # of things working against Respondents. Also says seems ok outside of 11th circuit. How's it going in those places? Counsel says there has been some cases that seem dumb.
Kav says what about offer of judgment? Counsel: Might not work. One 2d circuit case indicates default judgment can be on the merits. Also, not fair for individual capacity defendants to have to accept judgments. Just the dollar is ok, but costs, judgment, etc. make it complicated
Kav: Most ND awards don't then lead to attorneys fees, so what's the problem? Counsel: does happen sometimes.
