The answer may be that astute judges are responding to the changing environment in which their opinions are being read. Appellate court opinions have been accessible online for years, and they are now more commonly read on "screens" -- computers, iPads/tablets, and smartphones -- than in books. And studies have shown that we read differently when looking at a screen than when looking at printed text on paper.

For example, here's how scientists say our eyes track the data on a webpage:

Notice the concentration of red on the left hand border of the page created by the eye searching down the page for its structure. Note also how the eye tends to skip around.

Astute legal writers -- especially appellate lawyers -- would be wise to take note of how different the reading experience is on a screen, and to take it into account when drafting court submissions. That point was persuasively made during a presentation at the Florida Conference of District Court of Appeal Judges last fall (which I and other members of the Florida Bar's Appellate Practice Section were fortunate enough to attend).

Judges (and their clerks) are increasingly reading appellate briefs and other court submissions on computer screens, and when travelling, on iPads, Kindles and other e-readers, or on smartphones. (An informal survey during another presentation at the conference revealed Florida appellate judges to be tech-savvy and partial to iPhones and iPads, although Android phones were also represented).

The trend toward screen-reading will only increase now that e-filing is replacing paper filing.

In order for an appellate brief or any piece of legal writing to be persuasive, it must command the reader's attention. And to get and keep a reader's attention when he or she is reading on a screen, attorneys need to adopt the format of their documents to fit the environment.

How? In much the same way as one makes a webpage easy to read and engaging. Here are some suggestions:

• Add spacing -- Text is easier to read when it is surrounded by white space. Increase margins.  Large block paragraphs extending from margin to margin are a relic of book reading. They are difficult to digest when read on a screen, particularly when read on a Kindle or similar e-reader.
• Shorten the paragraphs. Not only do shorter paragraphs make the document more palatable to the eye (and increase white space), but they also account for the attention span issues that have been engendered by the digital age.
• Use headings more liberally. Effective headings are alot like soundbites -- they grab the reader's attention and drive home the point quickly before that attention is lost. Hopefully, they also encourage the reader to continue to read and pay attention.
• Insert document bookmarks. If you've opened a .pdf of a recent Florida Supreme Court opinion, you may have noticed a menu bar on the left hand side mapping out the sections of the opinion. Document bookmarks help the reader to get a feel for the overall structure of the document. They also help the reader to easily navigate between sections and arguments. When the reader must scroll up and down the screen to find sections, a traditional table of contents is a much less helpful roadmap than a bookmarks bar, where the reader can click right on the section he or she is looking for.

And finally there's the most radical idea: illustration with images. This practice is the most obvious concession to the effect the internet and it remains relatively unorthodox and somewhat controversial. So a fair amount of tact and judgment is needed.

But when used appropriately, tactfully, and sparingly, images can be highly effective. (If the picture is worth 1000 words, it can also help to make the brief shorter, which judges always appreciate). If nothing else, images command attention. Just ask Judge Posner. 

Florida Supreme Court:

Justice R. Fred Lewis

Justice Barbara J. Pariente

Justice Peggy A. Quince

Despite facing organized opposition that was unprecedented in the history of retention elections in Florida, all three justices were retained by sizeable margins. As I wrote in my previous post, I view this as a victory for Florida's non-partisan and generally non-political, merit-based system of selecting and retaining Supreme Court justices and appellate judges. A ballot initiative to give the state senate more power over appointments to the Supreme Court, via proposed Amendment Number 5, also failed.

From what I've heard, there were considerably fewer undervotes (ballots on which voters marked preferences in other races but left the merit retention questions blank) than in previous retention elections. So perhaps the contested retention elections had a subsidiary benefit -- helping voters become more aware of, and educated about, our Supreme Court justices. Credit for that goes to the many attorneys, laypersons, and legal organizations who worked to educate voters about the retention elections.  

First District Court of Appeal:

Judge Simone Marstiller

Judge Stephanie W. Ray

Judge Ronald V. Swanson

Judge Bradford L. Thomas

Second District Court of Appeal:

Judge Anthony K. Black

Judge Darryl C. Casanueva

Judge Charles A. Davis, Jr.

Judge Edward C. LaRose

Third District Court of Appeal:

Judge Angel A. Cortinas

Judge Kevin Emas

Judge Ivan F. Fernandez

Judge Leslie B. Rothenberg

Judge Richard J. Suarez

Fourth District Court of Appeal:

Judge Burton C. Conner

Judge Carole Y. Taylor

Almost a quarter of DCA judges statewide were on the ballot, including 4 of the 1st DCA's 15 judges, 4 of the 2nd DCA's 14 judges, 5 of the 3rd DCA's 10 judges, 2 of the 4th DCA's 12 judges, and none of the 5th DCA's 10 judges. All were easily retained.

Yes votes for retaining each of the 2nd DCA, 3rd DCA, and 4th DCA judges exceeded 72%. The 1st DCA judges were also retained by comfortable margins, although they received slightly less support, with yes vote percentages ranging from a little less than 62% to a little more than 66%. I'm not aware of there being organized opposition to retention of any of the DCA judges, or what accounts for the slightly lower numbers across the board in the 1st DCA retention elections.

Congratulations to all. I look forward to practicing before you in the coming years.

Why am I supporting retention of these justices?

First, because I believe that Justice Lewis, Justice Pariente, and Justice Quince, like their colleagues, are good, impartial jurists that have served our state well and will continue to do so. I read every opinion that the Florida Supreme Court releases. All of these justices have authored and joined decisions I agree with, and all have authored and joined decisions I disagree with. What that tells me is NOT that they're right sometimes (when I agree with them) and wrong sometimes (when I disagree with them) but that they're fair all of the time. Having practiced law in other states, I am of the firm opinion that Florida is blessed to have such fair and qualified justices sitting on our highest court.

But it's not just about these particular justices themselves. I'm also voting to retain these justices because in doing so, I'm voting for the continuation of the appellate judge selection process put in place decades ago in our state, which has worked better than any other system I know of.

In that selection process, applicants for judicial vacancies are screened by a judicial nominating commission made up of lawyers and laypersons from all sides of the aisle. They select a handful of candidates that are most qualified on the basis of merit -- experience, education, community involvement, temperament, etc. -- not politics. The governor then selects who will serve from that handful of candidates. After the appointee has served for a period of time, Florida voters get to vote in retention elections to decide whether the justice or appellate judge should continue to serve.

Retention elections are supposed to be, and have historically been, non-partisan. Judges and justices are required to run on a non-partisan basis, not as a candidate of any party. I believe that is the way it should be.

Selecting and retaining judges and justices on the basis of merit is the best way to build a smart, well-qualified judiciary. Selecting and retaining judges and justices without consideration of political parties or interests is the best way to build a fair judiciary.

And it is the best way to ensure that judges and justices are free to decide cases independently, without fear of retribution from powerful politicians. It seems to me that the organized opposition to retention this year boils down to that: some powerful politicians didn't like certain Supreme Court rulings against them. They'd rather have their own people on the court. 

Florida used to have partisan judicial elections. It didn't work well, elevating political savvy over impartiality and merit. When enough scandals resulted, our electorate opted for a non-partisan/non-political system. It works well.

By voting to retain Supreme Court Justices who are qualified and fair, I'll be voting in favor of a judiciary that espouses those attributes. And I'll be rejecting an attempt to return our state to the days when the selection of appellate judges and justices was driven by partisan politics.

Email Service to Replace Service by Mail & Fax

Mandatory service of all filings by email instead of snail mail will begin September 1, 2012 (pushed back from the originally announced July 1, 2012). Until the electronic filing system at the clerks' offices is up and running, filings will be served by sending them as attachments (which must be less than 5 MB in size) to an email addressed to opposing counsel. Lawyers will be required to designate an email address for service in each case. Mandatory service by email will not go into effect in criminal, traffic, and juvenile cases, however, until October 1, 2013.

Pro se litigants are exempt from the email service requirement, but may choose to opt in. There is also an out for lawyers that don't have an email account and don't have Internet access to move to be excused from email service. Are there really still attorneys out there that can honestly say, and would openly admit, that neither they nor anyone else in their office has email or Internet access? The Supreme Court seems to think so.

E-discovery

Also going into effect on September 1, 2012 are the Court's amendments to the Florida Rules of Civil Procedure to formally address discovery of electronically stored information. The gist of the new e-discovery procedures is as follows:

(1) Electronic information is officially discoverable.

(2) In non-complex cases, e-discovery may, and in complex cases, it must, be addressed during a case management conference.

(3) E-discovery requests can be objected to based on the burden or cost of accessing the information or producing it in the requested form, but the resisting party has the burden to prove the validity of the objection, and the court can order production if good cause is shown even if that showing is made. Courts are also authorized (encouraged?) to place limits on e-discovery.

(4) Electronic information must be produced in the form in which it is stored or in a reasonably usable form. The requesting party may also specifiy the form in which the information should be produced.

(5) A party can't be sanctioned for failing to preserve electronic information if it is destroyed through routine, good faith processes. But the committee notes make clear that if the party is put on notice via a request to preserve, a court order, or agreement, destruction through routine processes is less likely to be considered in good faith unless it occurs notwithstanding the party's good faith efforts to prevent the routine destruction.

(6) Electronically stored information can be subpoenaed. 

(7) Resolving e-discovery issues by agreement is highly encouraged.

The amendments appear to be modeled on the e-discovery provisions in the Federal Rules of Civil Procedure. As has been the case in the federal system, it will probably take some time -- and litigation -- before the Rules' general provisions are given enough shape to provide clear guidance. In the interim, it's a good idea to make every effort to reach an agreement with opposing counsel on the scope of e-discovery, if at all possible.

Electronic Filing

Electronic filing of documents with the courts will take a little longer to implement. Except for the few trial courts in which electronic filing is already in place, electronic filing will go into effect according to a staggered schedule depending on the type of case/court:

Appeals and original proceedings in District Courts of Appeal:          October 1, 2012

Appeals and original proceedings in the Supreme Court of Florida:   October 1, 2012

(Clerks of court, however, will not be required to transmit the record on appeal electronically until January 1, 2013).

Civil division of trial courts:                April 1, 2013

Probate division of trial courts:           April 1, 2013

Small claims division of trial courts:    April 1, 2013

Family division of the trial courts:       April 1, 2013

Appeals to the circuit courts (in the types of cases identified above):  April 1, 2013

Criminal division of the trial courts:     October 1, 2013

Traffic division of the trial courts:        October 1, 2013

Juvenile division of the trial courts:     October 1, 2013

Appeals to circuit courts in criminal, traffic, or juvenile cases:  October 1, 2013

Note, however, that these dates are being set as the latest times for implementation of e-filing, and do not prevent individual courts from starting e-filing sooner. Courts that have the technical capability will undoubtedly implement e-filing sooner than October 1, 2013.

For example, the Palm Beach County Clerk's Office recently announced that e-filing will be phased in, beginnin with e-filing in residential foreclosure cases in Palm Beach County Circuit Civil Division AW right after labor day, on September 4, 2012. The Broward County Clerk's Office, which initiated e-filing in certain complex civil cases in January 2012, and has had voluntary e-filing in probate cases in place for more than a year, is likely to phase in e-filing in other types of cases before October 2013 as well.

Be sure to check the clerks' websites periodically to stay abreast of new e-filing developments.

Here's a link to the opinion. Chief Justice ROBERTS joined Justices GINSBURG, BREYER, SOTOMAYOR, and KAGAN in holding that the individual mandate, under which individuals must either maintain a certain amount of insurance coverage or pay a fee to federal government, is a valid exercise of Congress' power to tax and spend. Congress called the fee a penalty for political reasons, but the government argued in court that it was no different than a tax.

At the same time, a majority of the Court, including Justice Roberts, held that Congress' powers under the Commerce Clause, which is the power Congress relies on for most of the laws it enacts, do not extend to passing laws like the individual mandate. In other words, a majority of the Court accepted the "broccoli" argument that Congress cannot force an individual to purchase a product he/she doesn't want.

Here are my initial reactions:

(1) You might say this outcome is a lesson not to read too much into how oral argument goes, given that so many people came away from oral argument with the impression that the Court would strike down the ACA. But I wouldn't read too much into it. From the oral argument transcript, it was pretty clear that Justice Roberts was the most likely of the more conservative justices to vote to uphold the law. At the very least, how 8 of the 9 justices felt about the issues was, in fact, obvious from oral argument.

(2) Although the decision's impact for this case is obviously a "win" for Congress, it may well be that the impact on future cases is the opposite. The Court's commerce clause analysis is likely to provide plenty of fodder for challenges to future laws passed under Congress' commerce clause power.So while this is obviously not an immediate win for the small government camp, it may turn out to be one in the long run.

Generally, if you're injured while in Florida, due to negligent, reckless, or intentional conduct of someone else in Florida, Florida courts have jurisdiction, and Florida law applies. It becomes more complicated when the person who causes your injury is not in Florida at the time they do whatever it is that causes your injury. And what happens if that person is not only in another state at the time of the event that causes your injury, but he/she is in a state where it is perfectly legal and proper to engage in the conduct, but it is unlawful in Florida?

The issue in France is even more complicated than that. The case involves Florida’s Security of Communications Act, § 934.03, Florida Statutes, which makes it illegal to record a telephone conversation without the consent of other parties to the call. Under federal law, and in the majority of states, including North Carolina, it is not unlawful to record a telephone conversation in which you're a participant, because only one party's consent is necessary, so your consent counts.

But in a minority of states, including Florida, it is unlawful to record a telephone conversation unless every participant in the call consents. In France, the former husband, sued his former wife for recording phone calls without his consent. He was in Florida during the calls. She was in North Carolina. The words she recorded were spoken in Florida, but recorded in North Carolina. His rights were unlawfully violated in Florida, but she acted lawfully according to North Carolina law.

Can he sue her in Florida? Maybe. The Fifth District said it felt constrained to find that the answer is yes, but that they weren't happy about it.

The court framed the issue as one of jurisdiction rather than conflicts of law. Two showings are required before a Florida court can assert jurisdiction over a non-Floridian alleged to have injured a Florida resident through a negligent, reckless or intentional act or failure to act. The first requirement is to satisfy Florida's long arm statue, which can be met if the person committed "a tortious act within" Florida. The second is to satisfy the constitutional requirement of having "minimum contacts" with the state, i.e., that the person acted in such a way that they could "reasonably have anticipated being haled into court" in Florida.   

The trial court in France dismissed the complaint based on its conclusion that the former wife had not committed a tortious act within Florida. To analyze that issue on appeal, the Fifth District looked to two decisions dealing with this issue from the 2nd DCA. In the first, Koch v. Kimball, 710 So. 2d 5 (Fla. 2d DCA 1998), the Second District said an insurance company employee who was in Georgia when she recorded a call with her supervisor, who was in Florida at the time, could be sued in Florida. Even though the tape recorder was in Georgia during the call, the court based its holding on case law saying words are captured where they are spoken, not where they are heard. So even though the employee was in Georgia at the time, she committed a tortious act in Florida by recording words spoken in Florida.

In the second decision, Kountze v. Kountze, 996 So. 2d 246 (Fla. 2d DCA 2008), the 2nd DCA, sitting en banc, overruled Koch, and held that Florida courts did not have jurisdiction over a person who was in Nebraska while recording a phone call with his cousin who was in Florida. That decision was based on concerns about the constitutionality of Florida asserting its police powers over persons in other states.

But 5 years before Koch was overruled by the 2nd DCA in 2008, in Acquadro v. Bergeron, decided in 2003, the Florida Supreme Court said it approved of the holding in Koch, in the course of holding that Florida's long arm statute was satisfied where an out of state defendant made telephone calls into Florida in which she allegedly defamed the plaintiff.

In a footnote in Acquadro, the Florida Supreme Court said it "approve[d] the Second District's decision in Koch because like [Wendt v. Horowitz, 822 So. 2d 1252, 1257 (Fla. 2002)] the decision held that a telephonic communication into Florida can constitute a tortious act."

Based on that statement of approval, the Fifth District felt that it was bound to follow Koch, and find that the former wife's conduct brought her within Florida's long arm statute. But the judges made clear that if writing on a clean slate, they probably would have reached a different conclusion. The court certified conflict with Kountze, making it more likely that the Florida Supreme Court take its own look at the issue.

The 5th DCA said the analysis in Wendt supports opposite result, because it the Supreme Court said in order for a telephonic communication into Florida to confer jurisdiction, "the cause of action must arise from the communications," and the cause of action in France arose from "the act of recording communications, not the communications themselves." Maybe, but that seems like a strained reading of Wendt to me.

Wendt also cited Koch with seeming (though not explicit) approval, as an example of one of two lines of cases; the line of cases it ultimately agreed with. And the holding in Wendt is two-fold. First, a defendant doesn't have to be in Florida to commit a tortious act in Florida.

Second, the defendant in that case was found to have committed a tortious act in Florida by negligently preparing documents while he was in Michigan based on the fact that he intended to, and did, send them to Florida. One could just as easily argue that the tortious act in that case didn't arise from the communications themselves but from the negligent preparation of them, which occurred in Michigan, just as the 5th DCA intimated that the tort didn't arise from the communications but from recording them.

It seems to me that the statement in Wendt about the tort arising from the communications was intended address situations such as for example, where an out of state defendant has business dealings with a Florida resident, and at a meeting in Texas, the defendant is alleged to have fraudulently induced the plaintiff to purchase property in Texas. After the contract is signed, the defendant has phone calls with the plaintiff while the plaintiff is in Florida, but the fraud allegedly occurred before the transaction. In that situation, the mere fact that the defendant called the plaintiff in Florida doesn't give Florida courts jurisdiction over the defendant, because the tort was committed in Texas. 

But I think a different distinction can be made. What's interesting is that while approving Koch in Acquadro, the court said it was doing so because it "held that a telephonic communication into Florida can constitute a tortious act." The court doesn't seem to have adopted the underlying premise of Koch, however.

Recall that the logic of Koch was that interception of the call actually occurred in Florida because it's where the words are spoken that matters, not where they're heard. But in Acquadro as well as in Wendt, the place where the words were heard, Florida, is what mattered.

So it might be that although the Supreme Court agreed with the general principle in Koch that one can commit a tort in Florida over the phone, it might reach a different result if confronted with a situation squarely raising the issue of where a call is recorded.

First, in Geico General Insurance Co. v. Virtual Imaging Services, Inc. (a/a/o Maria Tirado), No. 3D11-581,the 3rd DCA went a long way toward finding closure on the hotly contested issue of whether PIP insurers can take advantage of the reimbursement rate caps provided in the 2008 amendments to Florida's No Fault/Personal Injury Protection Law if their policies don't expressly state that the caps will be used. That issue, on which the 4th DCA had the first word among Florida appellate courts in its 2011 decision in Kingsway Amigo Insurance Company v. Ocean Health, Inc., has pre-occupied PIP lawyers ever since. I've also written multiple posts about it, including this one, this one, and this one.

In its Tirado decision, the Third District did a tremendous favor for opponents of the rule set down in Kingway Amigo (PIP insurers and their lawyers chief among them) by certifying the issue as a question of great public imporance. You may recall that the lack of an express and direct conflict among the District Courts of Appeal on the issue has prevented the Florida Supreme Court from stepping in end the controversy.

But now the issue has been certified as a question of great public importance, the Florida Supreme Court can exercise jurisdiction to review Tirado even without a conflict among the DCAs. If the Supreme Court chooses to do so, as the ultimate arbiter of Florida law, it can bring closure to this ongoing PIP battle. I'm guessing that it will.

Second, in the parallel cases of Calder Race Course, Inc. v. Florida Department of Business and Professional Regulation, West Flagler Associates, Ltd. v. Fla. DBPR, and Florida Gaming Centers, Inc. v. Fla. DBPR, the Florida Supreme Court brought closure on the issue of whether the legislature validly exercised its Constitutional authority in enacting 2009 legislation that allowed Hialeah Race Track to operate slot machines. That legislative enactment had been challenged by the three Miami-Dade facilities that were already licensed to operate slot machines prior to the legislation, as discussed in this post. On the same day as its redistricting decision was released, the Supreme Court declined to exercise its discretionary jurisdiction over the competitors' appeal from the 1st DCA's decision upholding Hialeah Race Track's authorization to operate slot machines.

Third, the 11th Circuit released its long awaited decision in FTC v. Watson Pharmaceuticals, Inc., (a/k/a In re: Androgel Antitrust Litigation) addressing the prominent antitrust/patent/health care law issue of the validity of so-called "reverse payment" or "pay for delay" settlements between pharmaceutical patent holders (i.e. name brand drug makers) and competing drug makers seeking to market generic alternatives. The FTC and the Antitrust Division of the DOJ, in addition to certain academics have fretted for years about such arrangements, and their effects on drug prices...             

In the common scenario, a generic drug maker applies to the FDA for permission to market a generic version of the name brand drug maker's patented drug, the name brand maker sues the generic maker for patent infringement, and the generic maker counters that the patent is invalid (and perhaps that the generic doesn't infringe the patent). The would-be competitors then enter into an agreement in which the generic maker agrees not to compete with the name brand drug by voluntarily declining to sell the generic drug, and the name brand maker agrees to make period payments to the generic maker that exceed the profits it would have made by entering the market.

Both companies are better off than if they had to compete with one another. But that's because, having bought off the competition, the name brand maker can charge monopolist prices. So consumers, and the health care system, are considerably worse off. And it looks a little suspicious to see a name brand maker agreeing to pay hundreds of millions of dollars to keep a would-be competitor out of a market in which it would have no right to compete at all if the patent was valid. So the FTC and others have been arguing for years that many, if not all, reverse payment settlements are illegitimate agreements that unreasonably restrain competition in violation of U.S. antitrust laws. 

But those challengers have found many federal courts to be inhospitable to their arguments. Instead of viewing them as efforts to improperly extend monopoly power obtained through invalid patents and agreements not to compete, courts of appeals have viewed them as something courts have always favored: agreements to settle contested lawsuits prior to trial. In a 2003 case, the 6th Circuit agreed that reverse payment settlements violate antitrust law.

But decisions from the 2nd and 11th Circuits, as well as the Federal Circuit, have gone the other way. They have held that such settlements are presumptively valid, so long as they do not extend past the expiration date of the patent and the and Most have treated them as valid so long as the term of the agreement does not extend past the expiration of the patent, the patent was not shown to have been obtained by fraud, or the suit seeking to enforce the patent frivolous.

Nonetheless, how the 11th Circuit would come down in Androgel was far from a foregone conclusion. The court had not confronted reverse payment settlement agreements since 2005, and the FTC had cause for optimism that the court's thinking may have changed, in light of some significant changes since then.

Those changed circumstances were recognized by the 2nd Circuit in 2010 in a similar case, In re Ciprofloxacin Hydrochloride Antitrust Litigation, when a panel affirmed the dismissal of claims based on reverse payment settlements, but made clear that it was doing so only because it was bound by precedent, and took the highly unusual steps of not only urging the full court to review the case en banc, but arguing why the court's prior decision, In re Tamoxifen Citrate Antitrust Litigation, 466 F.3d 187 (2d Cir. 2006), was flat wrong and dangerous. In the end, however, the full court did not vote to rehear the Cipro case en banc. Judge Rosemary Pooler dissented with an opinion, in which she said that prior to Tamoxifen reverse payment settlements were rare, because everyone thought it obvious that they ran afoul of the antitrust laws, but Tamoxifen had opened the floodgates, making them a fixture in the pharmaceutical market, driving up prices.

So many in the antitrust community had been anxiously waiting to see whether the 11th Circuit might be swayed to depart from its earlier decisions based on the considerations that so were so prominent in Cipro. Ultimately, however, the court did just the opposite, decisively re-affirming the validity of its precedent without reservation. Indeed, the decision may have narrowed the circumstances in which a reverse payment settlement can run afoul of the antitrust laws. The portion of the analysis in Androgel in which the 11th Circuit said it is impracticable for courts to look back to the patent litigation being settled to examine whether the patent holder was likely to prevail could be interpreted to eliminate the frivolous enforcement exception. Determining whether the patent enforcement litigation was frivolous requires the courts to conduct the same type of inquiry into the merits of the suit resolved by the reverse payment settlement.

Finally, there was also one more closure-related development in late April from the 3rd DCA, as Judge Juan Ramirez, who had served on that court for more than 12 years, stepped down to open the Miami office of JAMS, a prominent California-based mediation firm. Judge Ramirez's presence on the court will surely be missed, but we wish him much success in his new endeavor. And even though Judge Ramirez won't be writing 3rd DCA opinions anymore, he is writing about 3rd DCA (and other appellate court) decisions on the blog he recently started, called Florida Law Update.

Most prominent among them was the decision released by the Supreme Court of Florida last Friday that finally put to rest a battle that had commanded the better part of the Supreme Court's attention over the past few months -- namely, the fight over whether the Florida Senate's post-census plan for allocating state senate districts complied with Amendment 5, a/k/a the Fair Districts Amendment to the Florida Constitution, enacted by voter initiative in 2010. The upshot was that the Supreme Court concluded the review mandated by Article III, section 16 of the Florida Constitution, by declaring that the plan (as modified in response to the Court's March 9, 2012 decision) was Constitutionally valid. By doing so, the Court avoided taking the unprecedented step of taking the redistricting process out of the legislature's hands and writing its own plan.

Last week's decision unquestionably brought closure to the redistricting process, and the initial challenges to the 2012 legislative redistricting (with the Court even prohibiting motions for rehearing). But it may not bring closure in the larger sense of foreclosing other challenges to the redistricting plans based on the Fair Districts Amendment through separate lawsuits.

The overarching issue in the case from the outset was whether the Court would entertain a full scale challenge to the plans in the course of its mandatory review, which can last for no more than 30 days, and in which no evidentiary record can be built in a trial court for it to work from, or would instead limit its review to "facial" challenges only, as it had in the past. And correspondingly, would the Court's review of the challenges at this stage, by way of res judicata and/or stare decisis, preclude challenges to the districts that might be pursued in separate litigation, or as was true of the Court's initial review of redistricting plans before the Fair District Amendments, would the declaratory judgment leave open the possibility of separate challenges?

On the one hand, in its March decision, the Court made clear that the Fair Districts Amendment required, and it was willing to undertake, a more probing review than it had deemed appropriate when reviewing previous redistricting plans. In fact, the March decision was the first time ever that the Court invalidated a redistricting plan, at least in part.

On the other hand, in its April decision, the Court seems to have gone out of its way to point out that its review was only "facial" and that its conclusion was that "the opponents have failed to satisfy their burden of demonstrating any constitutional violation in this facial review." In declining to consider challenges to certain aspects of the revised plan that could have been made against the original plan, but were not, the Court engaged in a lengthy explanation that the reason it was declining to do so was that it would be unfair at that stage of the game. And in what seems like an unnecessary tangent, the Court expreslly stated not only that the new arguments themselves were not barred by res judicata, but that the Court's review of redistricting plans under its Article III, section 16 duties, is not the type of proceeding that can have res judicata effect. In other words, if opponents of the redistricting plans are looking to challenge them in a separate lawsuit, the the Supreme Court's decision is unlikely to get in their way.   

So while the decision undoubtedly brings closure to the Court's Constitutional review of the redistricting plans, and the redistricting process itself, it's probably premature to see it as bringing closure to the larger battle over redistricting.     

A major issue in today's oral arguments before the Supreme Court on the individual mandate, as in the court of appeals' decisions, is whether the market the individual mandate seeks to regulate is the market for health insurance (in which some people who don't participate will be required to participate by the mandate) or the market for health care, in which almost everyone will participate at one point or another.

An exchange between several justices and Paul Clement, arguing for the 26 states challenging the law, focused on whether the two markets are in fact separable. Isn't health insurance just a way to pay for health care, as the government argues? No, according to Mr. Clement:

CHIEF JUSTICE ROBERTS: Well, Mr. Clement,the key to the government's argument to the contrary is that everybody is in this market. It's all right to regulate Wickard -- again, in Wickard against Filburn, because that's a particular market in which the farmer had been participating. Everybody is in this market, so that makes it very different than the market for cars or the other hypotheticals that you came up with, and all they're regulating is how you pay for it.

MR. CLEMENT: Well, with respect, Mr. Chief Justice, I suppose the first thing you have to say is what market are we talking about? Because the government -- this statute undeniably operates in the health insurance market. And the government can't say that everybody is in that market. The whole problem is that everybody is not in that market, and they want to make everybody get into that market.

JUSTICE KAGAN: Well, doesn't that seem a little bit, Mr. Clement, cutting the bologna thin? mean, health insurance exists only for the purpose of financing health care. The two are inextricably interlinked. We don't get insurance so that we can stare at our insurance certificate. We get it so that we can go and access health care.

MR. CLEMENT: Well, Justice Kagan, I'm not sure that's right. I think what health insurance does and what all insurance does is it allows you to diversify risk. And so it's not just a matter of I'm paying now instead I'm paying later. That's credit. Insurance is different than credit. Insurance guarantees you an upfront, locked-in payment, and you won't have to pay any more than that even if you incur much great expenses. And in every other market that I know of for insurance, we let people basically make the decision whether they are relatively risk averse, whether they are relatively non-risk averse, and they can make the judgment based on -

In other words, according to Clement, the health insurance market is distinct from the health care market because buying insurance is not the same thing as paying for health care in advance. You buy insurance to avoid risk, not to pay for things you'll buy later.

The counter-argument is that while that's true for most kinds of insurance, health insurance is fundamentally different. Why? Because when you buy homeowner's insurance, you are trying to avoid the risk of a financial loss if it turns out that a hurricane comes along and damages my house. But there's also the (better than 50%) chance that a hurricane won't come along.

When I buy health insurance, on the other hand, I'm not (only) protecting against the risk that I might need to go to the doctor at some point -- I know I'm going to go to the doctor. So it can be argued that I buy health insurance, at least in part, as a sort of pre-payment for my doctor's care (and to take advantage of the lower prices my doctor charges to the insurer).

And that's pretty much what the Supreme Court said in McCready. McCready was a participant in her employer's group health plan, provided by Blue Shield of Virginia, who sued Blue Shield based on an alleged conspiracy with psychiatrists to prevent reimbursement for treatment by psychologists. The issue was whether the injury she suffered by being denied reimbursement for treatment was too remote for her to have standing to challenge the conspiracy under the Sherman Act.

McCready was not actually a participant in the health insurance market because her employer purchased a group policy, but she was a participant in the health care market because she went to see a psychologist and paid for it (then sought reimbursement). Blue Shield argued that McCready lacked standing because the market targeted by the alleged conspiracy was the health insurance market, not the health care market:

Petitioners next argue that...the Section 4 remedy...is not available to McCready because she was not an economic actor in the market that had been restrained. In petitioners' view, the proximate range of the violation is limited to the sector of the economy in which a violation of the type alleged would have its most direct anticompetitive effects. Here, petitioners contend that that market, for purposes of the alleged conspiracy, is the market in group health care plans. Thus, in petitioners' view, standing to redress [457 U.S. 465, 480] the violation alleged in this case is limited to participants in that market - that is, to entities, such as McCready's employer, who were purchasers of group health plans, but not to McCready as a beneficiary of the Blue Shield plan.

The Supreme Court rejected that argument, explaining that "as a consumer of psychotherapy services entitled to financial benefits under the Blue Shield plan, we think it clear that McCready was 'within that area of the economy . . . endangered by [that] breakdown of competitive conditions' [457 U.S. 465, 481] resulting from Blue Shield's selective refusal to reimburse." In other words, although the conduct was directed toward the health insurance market, it had direct effects on participants in the health care market.

In a footnote, the Court also agreed with the court of appeals that the health insurance plan was really akin to a means for pre-paying for medical treatment, not an insurance policy in the usual sense:

Blue Shield Plans are not insurance companies, though they are, to a degree, insurers. Rather, they are generally characterized as prepaid health care plans, quantity purchasers of health care services.

The ultimate Sherman Act-specific holding of McCready has little to do with the individual mandate case, but the point is that the Supreme Court has already addressed the interplay of the health insurance market with the health care market, and has expressed a view that strongly suggests that they are not two independent markets.

Is McCready a silver bullet? Probably not. But it sure seems important to me that there is Supreme Court precedent on an issue that is so central to the debate. Certainly important enough to at least enter the discussion. Why isn't anyone talking about it? 

But after digesting the 9th Circuit's decision, it is also clear that there's now something else at work: the fact that judges don't like handing down decisions that are likely to be reversed. And that apparently includes 9th Circuit Judge Stephen Reinhardt, despite his having told the LA Times in July that he wasn't bothered that the Supreme Court had reversed so many 9th Circuit decisions (including several he authored) of late.

So once Boies, Olson, and their allies convinced the district court and 9th Circuit to go along with their arguments (which was far from assured at the outset) the authors of the two opinions, who are pretty brainy themselves, added their own slants with the intent of avoiding reversal. It's interesting to see the way in which the district court's decision (authored by Judge Walker) and the 9th Circuit's opinion (by Judge Reinhardt) reach the same result through very different means, with each approach apparently intended to minimize the chances that the Supreme Court will reverse. 

Judge Walker's decision made a sweeping proclamation that, in effect, there is a constitutional right to same-sex marriage. Perhaps recognizing that this holding would have a hard time surviving appellate scrutiny given the current state of the law, he grounded his decision on a broad base of factual findings about the purpose and effect of Proposition 8, presumably hoping for the deference appellate courts grant to a district court's factual findings.

But the 9th Circuit was convinced by the proponents of Prop 8 (whose counsel is no slouch either) that most of Judge Walker's factual findings were "legislative facts," i.e. generalized facts, rather than the type of case-specific facts to which appellate courts might defer, and didn't defer to Judge Walker's fact-finding.

And the current Supreme Court seems unlikely to find a constitutional right to same-sex marriage. That's probably why Judge Reinhardt reframed the issues such that it affirmed Judge Walker's finding that Proposition 8 is unenforceable, but avoided making a broadly applicable pronouncement of a constitutional right to same-sex marriage.

The 9th Circuit's decision reinforces the importance of how you frame the question to be answered, particularly when it comes to issues of constitutional interpretation. [I touched on this topic in discussing the arguments for and against the individual mandate in the PPACA, where the challengers frame the "commerce" it regulates as the health insurance market and argue that the individual mandate improperly requires citizens to participate in a market they otherwise would not rather than regulating the activities of persons already participating in commerce; while the Justice Department argues that the "commerce" at issue is healthcare financing, and that all (or almost all) citizens participate in the healthcare market, so the individual mandate regulates existing commerce rather than requiring citizens to participate in a market where they otherwise would not. This issue is discussed more in-depth at Volokh Conspiracy by Case Western Law Professor Jonathan Adler.] 

Judge Reinhardt reframed the question in Perry from whether it is unconstitutional to prohibit same-sex marriage to the much narrower issue of whether it is unconstitutional for a state in which same-sex couples (1) have the right to marry; and (2) have all of the same rights as other couples with regard to adoption and other family-related matters, to revoke the right of same-sex couples only to marry. The apparent strategy in that approach was that it not only avoided a broad pronouncement of a newly recognized constitutional right, but also essentially limited the reach of the holding to California only.

A time-honored way to avoid Supreme Court review is to decide the case on pure state law grounds. But that being impossible in Perry, the 9th Circuit did the next best thing by deciding it on federal grounds that apply only to one state. The other apparent advantage is that by reframing the issue as being about revoking existing rights that same-sex couples had shared with the general population, it has parallels to the Supreme Court's relatively recent decision in Romer v. Evans. 

Will the Supreme Court take up the case despite the more narrow focus of the holding on California? I'd be shocked if it didn't. A bigger question will be whether the Supreme Court will address it through the narrower frame of the 9th Circuit's opinion. And if it does, the question will become whether the Court will think the facts are similar enough to Romer to apply stare decisis. It's noteworthy that Judge Smith, in his dissent from the 9th Circuit's decision, accepted the framework adopted by the majority, but concluded that Romer was distinguishable and that Proposition 8 passed constitutional muster.

Judge Reinhardt's opinion, however, may not be the 9th Circuit's last word on Perry. According to Lyle Denniston at SCOTUSBLOG, the proponents of Proposition 8 plan to ask the 9th Circuit to rehear the case en banc before petitioning for certiorari. They may be hoping the 9th Circuit will itself reframe the issues in the case before it even reaches the Supreme Court.