by Beverly Mann
lifted from an e-mail, used with permission of the author of the blog The Annarborist
“Eric M. Freedman, a law professor at Hofstra University, said that the lesson of the Supreme Court’s ruling in the Landrigan case was ‘crime pays.’
“He explained: ‘The state flatly stonewalled the lower courts by defying orders to produce information, and then was rewarded at the Supreme Court by winning its case on the basis that the defendant had not put forward enough evidence. That is an outcome which turns simple justice upside-down and a victory that the state should be ashamed to have obtained.’”
This is part of a Roberts Court trend that is, in my opinion, so very John Roberts: The erection of a cute procedural tautology that eliminates access to federal court because the specific evidence that the person trying to gain access (the “plaintiff”; the “petitioner”) will need to prove the claim is solely in the possession of the corporation or government entity that the claim is against.
Last year, in a case called Ashcroft v. Iqbal, the 5-4 crowd held it appropriate and in fact obligatory that trial-level federal judges dismiss civil lawsuits, willy-nilly, if the judge declares that the formal complaint (the document filed with the court that initiates the lawsuit) lacks evidentiary specificity sufficient to prove the case. This defies a longstanding federal statute known as Federal Rule of Civil Procedure 8(a), which explicitly bars dismissals of lawsuits in such grounds.
But no matter; the originalist/textualist/non-judicial-activist justices effectively rewrote that statute—eliminating the plaintiff’s or petitioner’s right to require the corporation or government entity to disclose the evidentiary specifics, e.g., internal memos; product test results; police audiotapes; (in the Landgrigan case) documents showing where the drug was manufactured and what it contains.
What’s most stunning about the order in Landrigan is the 5-4’s bald, deliberate conflation of the standard of proof for barring the execution using this drug and the standard for staying the execution until the state provided the evidence sought. These are—or at least were—two separate standards. And logic requires that they remain so.
This new rule of law that you have to present evidence that your opponent is keeping from you before you’re entitled to access to federal court is a dream come true for perpetrators of corporate and government malfeasance. And its quasi-legislative authors on the Supreme Court are frightening diabolical in quietly promulgating that rule of law.