Honest Belief, Reasonable Belief: Can Your Employer Fire You Based on a Mistake?

The Issue

When an employer fires an employee, and the employee sues for discrimination, the employer typically justifies the firing by showing a “legitimate, nondiscriminatory reason” (LNR) for it. But what if that reason turns out to be a mistake?

An Honest Belief

Many federal courts hold that an employer does not violate Title VII, or other anti-employment-discrimination statutes, if the employer fires the employee based on an “honest belief” in facts that suggest there is a legitimate, nondiscriminatory reason to fire the employee. This principle seeks to draw a firm line between intentional discrimination against someone for their age, sex, etc. and firing them for a valid (if incorrect) reason.

What does “honest belief” mean in practice? The Sixth and Seventh Circuits have split on how litigants can dispute an employer’s LNR if that LNR is based on an honest mistake. The split is so fundamental that one circuit puts the burden on the plaintiff, and the other on the defendant, to show that the employer’s honest belief was or was not honestly held.

Background

Several federal statutes protect against discrimination in the workplace. Title VII of the Civil Rights Act of 1964, allows a person to sue an employer if the employer discriminates against them on the grounds of race, sex, color, religion, or national origin. The Age Discrimination in Employment Act does the same thing for age; and the Americans with Disabilities Act for disability.

A suit under these statutes generally works like a ping-pong game between the plaintiff and defendant. First, the plaintiff “serves” by showing what in law-speak is called the “prima facie” case (Latin for “first appearance”). This, basically, is the upfront reason to believe that something discriminatory happened, and plaintiffs are supposed to be able to meet this initial burden easily. They have to show that

  1. The plaintiff is a member of a protected class
  2. They suffered an adverse employment action (such as being fired),
  3. They were qualified for their position, and
  4. Circumstances were present that give rise to an inference of unlawful discrimination.

See Clay v. United Parcel Service, Inc., 501 F.3d 695, 703 (6th Cir. 2007); cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

Next, the “return”: the burden shifts to the employer, who must articulate a “legitimate, nondiscriminatory reason” (LNR) for the rejection. McDonnell Douglas, 411 U.S. at 802.

Finally, the volley: if the defendant articulates its LNR, the plaintiff then has an opportunity to show that the LNR is merely a pretext for the discrimination. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

The Honest Belief Rule

One good way for plaintiffs to show that the employer’s LNR is pretextual is to show that employees similarly situated to the plaintiff were treated better. For example, if the employer refuses to hire a female employee because she was not a college graduate, the female could point to males hired for the same position who also lack college degrees. That suggests the employer’s LNR is bunk—and sex discrimination is much more likely.

Honest belief comes in at the next stage of the ping-pong point. Suppose a plaintiff is successful in showing that the employer’s LNR is false—in the earlier example, she was, in fact, a college graduate! One might think the plaintiff, at this point, had hit a screaming winner down the line—but the “honest belief” rule actually allows the defendant to hit the ball back again.

As stated by the Seventh Circuit, the “honest belief” rule says that an employer’s LNR is not pretext for discrimination if the employer honestly believed in the LNR—even if the plaintiff shows the LNR to be “mistaken, trivial, or baseless.” Kariotis v. Navistar International Transportation Corp., 131 F.3d 672, 676 (7th Cir. 1997).

Defendants who satisfy the “honest belief” rule may be entitled to summary judgment, which defeats the plaintiff’s claim before the plaintiff has a chance to make the case to a jury.

A Split of Burdens

The Seventh Circuit

In the Seventh Circuit, the plaintiff bears the burden to come up with facts that undermine the honesty of the employer’s belief in its LNR:

To successfully challenge the honesty of the company’s reasons [plaintiff] must specifically rebut those reasons. But an opportunity for rebuttal is not an invitation to criticize the employer’s evaluation process or simply to question its conclusion about the quality of an employee’s performance. Rather, rebuttal must include facts tending to show that the employer’s reasons for some negative job action are false, thereby implying (if not actually showing) that the real reason is illegal discrimination. . . . [T]he question is not whether the employer’s reasons for a decision are ‘right but whether the employer’s description of its reasons is honest.’

Kariotis, 131 F.3d at 677 (quoting Gustovich v. AT&T Communications, Inc., 972 F.2d 845, 848 (7th Cir.1992).

In Kariotis, a 57-year-old employee sued her employer, Navistar, for age and disability discrimination. Navistar fired her and replaced her with a younger woman after it suspected her of exaggerating the effects of knee surgeries to take unwarranted time off. Kariotis responded that she was indeed debilitated by her injuries and offered medical evidence from her doctor. In response, Navistar pointed to the fact that it had hired a private investigator firm to watch Kariotis moving about – and Navistar said that it honestly believed the P.I.’s findings that Kariotis was not as disabled as she claimed. The Seventh Circuit held that Kariotis at most had shown that Navistar was “careless in not checking the facts before firing her,” but that was not enough to carry her burden of showing illegal discrimination.

The Sixth Circuit

The Sixth Circuit puts the burden on the defendant, requiring it to produce facts that justify its honest belief:

‘[t]o the extent the Seventh Circuit’s application of the ‘honest belief’ rule credits an employer’s belief without requiring that it be reasonably based on particularized facts rather than on ignorance and mythology, we reject its approach’). Under this approach, for an employer to avoid a finding that its claimed nondiscriminatory reason was pretextual, ‘the employer must be able to establish its reasonable reliance on the particularized facts that were before it at the time the decision was made.’

Wright v. Murray  Guard, Inc., 455 F.3d 702, 708 (6th Cir. 2006) (quoting Smith v. Chrysler Corp., 155 F.3d 799, 806 (6th Cir. 1998).

In Clay v. United Parcel Service, Inc. (6th Cir. 2007), for example, a UPS worker was fired allegedly for missing three straight days of work. He countered that, based on the timing of his availability and the termination letter, he was given only two days before being fired. UPS claimed that it honestly believed Clay violated the three-day rule, but that wasn’t enough for the court. UPS had a burden to show “reasonable reliance on the particularized facts that were before it at the time the decision was made.” Clay, 501 F.3d at 714. UPS was “silent” in the face of this burden, see id., so it was error for the trial court to grant summary judgment to UPS based on the honest belief rule—the case should go forward to trial for a jury to decide the honesty of UPS’s belief.

Looking Forward

Honest-belief cases will be driven by their facts, which will differ significantly from case to case. But, in all cases, the split starkly switches the burden of proof from plaintiff to defendant, or vice versa, depending on which circuit’s law applies.

For further reading, Noam Glick’s student comment for the Loyola of Los Angeles Law Review  supports the Sixth Circuit, but Professor Ernest F. Lidge III in the Oklahoma City University Law Review favors the Seventh Circuit’s approach.

Vacating Your Arbitration Award: A Split About Access to Federal Courts

When a case litigated in court goes horribly wrong, there’s a clear remedy: appeal. But, what happens when your case goes not through court, but arbitration, and the proceedings are grossly unfair? You cannot appeal: that would seriously undermine the purposes of arbitration, to provide a fast resolution of a case at a cheaper cost than litigation. There is only one possible escape hatch: federal law provides that, in a limited set of very unfair situations, you can ask a court to vacate or modify the arbitrator’s award.

But if you bring this petition in federal court, another obstacle lurks in the background: the federal court’s subject-matter jurisdiction to even consider a petition to vacate. A new circuit split has popped up on that question.

Background

The Federal Arbitration Act, passed in 1925, controls arbitration proceedings nationwide. Prior to its passage, arbitration agreements weren’t always enforceable. The Act, however, is binding on all agreements to arbitrate nationwide (no matter what state law says) via the Supremacy Clause of the Constitution. Broadly speaking, the FAA says that (1) if you enter into an agreement to arbitrate disputes, then you have to arbitrate disputes; and (2) the award your arbitrators give is enforceable via converting it into a judgment of a court (which judges are almost always required to enter).

There are only six circumstances where judges can mess with the results of arbitration. Section 11 of the FAA provides two situations that allow an award to be modified. The other four situations, copied from § 10 of the FAA, allow the award to be completely vacated:

(1) where the award was procured by corruption, fraud, or undue means;

(2) where there was evident partiality or corruption in the arbitrators, or either of them;

(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or

(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

And that’s it.

Is There Federal Subject-Matter Jurisdiction?

Now, the jurisdictional problem.

We all know from civil procedure and federal courts that each claim in a federal case must be supported by federal subject-matter jurisdiction—usually § 1331 “federal question” jurisdiction or § 1332 “diversity” jurisdiction—or it cannot be heard in federal court. But, even though § 10 of the FAA is federal law, the Supreme Court has held that § 10 “does not create any independent federal-question jurisdiction under 28 U.S.C. § 1331 or otherwise.” Moses H. Cone Mem’l Hospital v. Mercury Constr. Corp. (1983).

This, by the Court’s own admission, makes § 10 an “anomaly” among federal statutes. Id. And it seriously jeopardizes a party’s ability to bring a § 10 petition in federal court after something goes wrong.

One more thing before we reach the circuit split. The Supreme Court in Vaden v. Discover Bank (2009) addressed federal jurisdiction over petitions brought under a different portion of the FAA, § 4. That section allows a party to ask a court to enforce an agreement to arbitrate disputes. Typically, a party who is sued in court will be demanding that the dispute has to be resolved in arbitration because the parties agreed ahead of time by contract to submit all disputes to arbitration.

Vaden says a § 4 petition itself does not have to be supported by federal jurisdiction. Instead, the court can “look through” the § 4 petition to the underlying dispute; if the federal courts would have jurisdiction over the underlying dispute, they can hear the § 4 petition.

The Court’s holding is textual. The language of § 4 provides that the party wanting to compel arbitration “may petition any United States district court which, save for such agreement [the agreement to arbitrate all disputes], would have jurisdiction” over the dispute.

The Circuit Split: Third, Seventh, and D.C. vs. Second

Now, the split.

In 1996 and 1999, respectively, the Seventh Circuit and D.C. Circuit held that petitions to vacate arbitral awards under § 10 must be independently supported by federal subject-matter jurisdiction.  The courts cannot “look through” the petitions to see if they would have had subject-matter jurisdiction over the underlying case. That’s because § 10 doesn’t have the language quoted above from § 4, and because of the purpose of the FAA: as the Seventh Circuit wrote, “The central federal interest was enforcement of agreements to arbitrate, not review of arbitration decisions.”

This year, the Third Circuit joined the Seventh and D.C. Circuits, writing that Vaden didn’t change anything about the analysis for § 10:

Neither the textual nor practical considerations noted by the Court in Vaden apply in a case relying on § 10 of the FAA. Section 10 lacks the critical ‘save for such agreement’ language that was central to the Supreme Court’s Vaden opinion. It provides that ‘the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration….’ 9 U.S.C. § 10. There is no reference to the subject matter of the underlying dispute. Thus, while § 4 calls for a court to consider whether it would have jurisdiction over the ‘subject matter of a suit arising out of the controversy between the parties,’ § 10 makes no such demand.

The Second Circuit, however, created a circuit split in Doscher v. Sea Port Group Securities, LLC, handed down this August just 11 days before the Third Circuit’s decision.

The Second Circuit said Vaden did change the analysis for § 10, because the FAA can’t expand federal jurisdiction, and if Vaden found federal subject-matter jurisdiction under § 4 without expanding federal jurisdiction, that must mean the “look through” approach is implicitly authorized for the other sections of the FAA:

[T]he necessary result of limiting the look-through approach solely to § 4 petitions is to conclude that the same dispute between the parties would be sufficient to confer § 1331 jurisdiction for the purposes of § 4 petitions but insufficient to confer § 1331 jurisdiction for the purposes of any of the Act’s other remedies. That is simply not logically possible without construing § 4 to expand federal jurisdiction—a conclusion the Supreme Court has expressly forbidden us to draw.

The Second Circuit’s reasoning—a close read of the principles laid out in Vaden—is, by its own admission, “complicated.” But it’s also purposive. The Second Circuit disagreed with the quotation above from the Seventh Circuit that the text of the FAA only gives “look-through” federal subject-matter jurisdiction in § 4 petitions:

[T]here is a certain absurdity to an interpretation that permits parties to file motions to compel arbitration in any case where the underlying dispute raises a federal question but precludes them from seeking the same federal court’s aid under the Act’s other remedial provisions related to the same dispute . . . . If enforcement were Congress’s only goal, however, it would have had no need to pass §§ 10 or 11 at all.

Looking Forward

Ultimately, parties can always bring § 10 petitions in state court, but a resolution of this circuit split will be necessary if we are to know whether federal courts can hear § 10 petitions.


*Thank you to Professors Phillip Armstrong and John Allgood for sending us this interesting split.

An Erie Split: Anti-Slapp Laws and Rule 11

This is the second of two posts about the Erie doctrine, anti-SLAPP laws, and the Federal Rules of Civil Procedure. To see the first post, which covered anti-SLAPP laws and the conflict with Rules 12 and 56 of the FRCP, click here.

The Rule 11 Split

Should it be easier to sue your doctor or lawyer in federal court than in state court? The Eleventh Circuit purportedly says “yes,” while the Third and Tenth Circuits disagree. This consequential Erie Doctrine circuit split has complicated malpractice actions in federal courts for decades, and even touches some anti-SLAPP laws.

Many states have passed “tort reform” laws to protect doctors and lawyers from “frivolous lawsuits.” If you want to sue a doctor for malpractice in Georgia, for example, state law provides that you must attach an expert’s affidavit to your complaint or your case will be dismissed.

These statutes differ in timing (they may require filing an affidavit along with the complaint, or a certain number of days after) or to whom they apply (the affidavit may have to be signed by an attorney, a party, and/or an expert)—see the U. Penn. Law Review for a catalogue of the differences. But in federal court, all such laws run a risk of conflict with Rule 11, which states that, “Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit.”

The Third Circuit in Liggon-Redding v. Estate of Sugarman (2011) allowed a Pennsylvania affidavit-of-merit statute to apply in a legal malpractice case despite Rule 11. The court emphasized the procedural differences between the Pennsylvania law and the federal rule to find no conflict under Hanna:

Pennsylvania Rule 1042.3 requires an additional written statement by ‘an appropriate licensed professional’ attesting to a ‘reasonable probability’ that a ‘licensed professional deviated from an acceptable professional standard.’ Additionally, the Pennsylvania certificate of merit must be filed within sixty (60) days of the filing of the complaint. Federal Rule 11, in contrast, does not require an additional consultation with experts or the filing of a separate written statement within sixty (60) days of the filing of the complaint. . . . Federal Rule of Civil Procedure 11 can co-exist with the Pennsylvania certificate of merit rule because each rule controls its own intended area of influence without any conflict.

The Tenth Circuit held there was no conflict under Hanna between Rule 11 and a similar Colorado statute in Trierweiler v. Croxton and Trench Holding Corp. (1996):

Despite the superficial similarity of the two rules, we conclude that they do not collide. . . . While § 13–20–602 penalizes the party, Rule 11 targets the attorney . . . . Furthermore, § 13–20–602 does not merely operate to discourage frivolous claims; it does so only with respect to lawsuits filed against licensed professionals, and it also seeks “to expedite the litigation process in [such] cases” by imposing a 60–day time limit. By protecting a particular class of defendants, and by expediting such cases, the statute vindicates substantive interests of Colorado not covered by Rule 11. Although the state and federal rules are similar, there is no “direct collision” between the two.

But the Eleventh Circuit created a circuit split with Trierweiler and Liggon-Redding in Royalty Network, Inc. v. Harris (2014). At issue was a bizarre former version of Georgia’s anti-SLAPP statute, which required a SLAPP plaintiff to file an affidavit if the lawsuit was filed against someone who was exercising First Amendment speech or petition rights. The court found a direct conflict under Hanna between the Georgia law and Rule 11:

The federal rule explicitly provides that a pleading need not be verified or accompanied by an affidavit and allows parties discretion in deciding whether to verify pleadings. The Georgia statute, by comparison, mandates that a complaint or pleading asserting a claim must be accompanied by a verification making specific representations.

The Eleventh Circuit added that Rule 11 does not incorporate state laws:

We acknowledge that Rule 11 states a pleading need not contain a verification ‘[u]nless a rule or statute specifically states otherwise.’ The rule’s reference to other rules or statutes, however, means other federal rules or statutes.

A reasonable reader might think the circuit cases could be distinguished based on the timing of the statutes at play: The Georgia statute, which did not apply in federal court, required an affidavit to be filed contemporaneously with the complaint. The Colorado and Pennsylvania statutes, which did apply in federal court, allowed 60 days after filing the complaint to file an affidavit.

But the district courts haven’t divided on that fault line. For example, the Western District of Michigan has applied a Michigan statute that, like Georgia’s, required a contemporaneously filed affidavit, concluding that the conflict with Rule 11 was “illusory.” But the Western District of Texas refused to apply a statute requiring an expert report within 120 days of the complaint, because it would “get in the way of the operation of Rule 11.” District courts have, in fact, been long divided about affidavit-of-merit requirements, which may also conflict with Rules 8 and 9—an issue beyond the scope of this blog entry (see the Pennsylvania and Arizona Law Reviews for more).

(For more still, read the Western District of Michigan case linked above. It’s a doozy of a case, covering issues arising from Section 1983 and medical malpractice. The court extensively discusses the Erie problem, and touches not just on the Rule 11 conflict described here, but issues with Rules 8, 9, and 26. And, of special interest to readers of this blog, the court even discusses which circuits and district courts are split applying the Rules. Consider it the cherry on top of this sundae.)

Looking Forward

A final note about Georgia. This year, the General Assembly passed an amendment to Georgia’s anti-SLAPP statute to make it look like most other states’. The new law provides a “special motion to dismiss” for SLAPP defendants, eliminating the requirement that a plaintiff file an affidavit of merit at the pleading stage. Arkansas is now the only state whose anti-SLAPP law requires SLAPP plaintiffs to file a verification with their pleading.

Now that Georgia’s anti-SLAPP law falls within the Rule 12/56 split rather than the Rule 11 split, it has a fresh chance at applying in federal court—if the Eleventh Circuit allows it.

An Erie Split: Anti-Slapp Laws, Rule 12, and Rule 56

Substantive or procedural? This age-old conceptual “split” lies at the heart of the Erie Doctrine, which we tackle here in our first post. The issue: when a state law imposes procedural requirements on litigants so as to advance a substantive policy goal, do those requirements apply in federal court? We have seen two circuit splits on this problem, so—befittingly—we have “split” our first post into two parts.

The Rule 12/Rule 56 Split

A major circuit split is developing on the Erie problem of whether state anti-SLAPP laws conflict with Federal Rules of Civil Procedure 12 and 56. SLAPP’s, or “Strategic Lawsuits Against Public Participation,” occur when someone is sued for defamation just for exercising her right to petition or speak out in public. The plaintiff—a company, for example—hopes the cost and stress of defending the lawsuit will stop the defendant—perhaps a recently fired employee— from speaking.

To deter these suits and preserve a robust First Amendment, twenty-eight states, plus D.C. and Guam, have passed anti-SLAPP laws. Though these laws have a substantive purpose (protecting free speech), they often take procedural form, providing SLAPP defendants with a “special motion to dismiss” that they can bring as soon as they are sued. Unfortunately for SLAPP defendants, Erie problems result if special motions to dismiss conflict with the Federal Rules of Civil Procedure.

The Erie Doctrine at its simplest has two steps: under Hanna v. Plumer,  if a state law conflicts with a valid federal rule, the federal rule controls. If there is no conflict, then under Erie, the court should apply state rules that are substantive enough to affect the outcome of the case. Here’s how anti-SLAPP laws can conflict with the Rules.

First, Rule 12 allows defendants to move to dismiss, but defendants must choose from among the seven grounds for dismissal listed in 12(b)—“I’ve been slapped with a SLAPP” is not listed. As the D.C. Circuit has noted (see below), anti-SLAPP laws may “conflict with the Federal Rules by setting up an additional hurdle a plaintiff must jump over to get to trial.”

Second, if a “special motion to dismiss” counts as a 12(b)(6) motion to dismiss for failure to state a claim, anti-SLAPP laws may conflict with Rule 56. Rule 12(d) provides that, “If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” But anti-SLAPP laws, such as Maine’s, flip the burden of proof required on summary judgment, putting it not on the SLAPP defendant, but on the SLAPP plaintiff—the nonmoving party.

The Ninth Circuit first considered whether anti-SLAPP laws conflict with Federal Rules 8, 12, and 56 in United States ex rel. Newsham v. Lockheed Missiles and Space Company (1999). The court found no conflict between the California anti-SLAPP law and the Federal Rules, under Hanna:

[T]here is no indication that Rules 8, 12, and 56 were intended to ‘occupy the field’ with respect to pretrial procedures aimed at weeding out meritless claims. . . . The Anti-SLAPP statute, moreover, is crafted to serve an interest not directly addressed by the Federal Rules:  the protection of ‘the constitutional rights of freedom of speech and petition for redress of grievances.’

The Fifth Circuit seemed to ratify this reasoning in Henry v. Lake Charles American Press (2009), applying Louisiana’s anti-SLAPP statute in federal court without Erie analysis. And the following year, the First Circuit agreed with Newsham and Henry, applying Maine’s anti-SLAPP statute in federal court and finding no conflict under Hanna with the Federal Rules:

Federal Rules 12(b)(6) and 56 are addressed to different (but related) subject-matters. . . . Maine has not created a substitute for the Federal Rules, but instead created a supplemental and substantive rule to provide added protections, beyond those in Rules 12 and 56, to defendants who are named as parties because of constitutional petitioning activities.

Judge Alex Kozinski of the Ninth Circuit, however, argued in a concurrence in Makaeff v. Trump University, LLC (2013), that Newsham was wrongly decided on two grounds. First, state procedural rules cannot apply in federal court, even absent a conflict:

Newsham‘s mistake was that it engaged in conflict analysis without first determining whether the state rule is, in fact, substantive. It’s not. The anti-SLAPP statute creates no substantive rights; it merely provides a procedural mechanism for vindicating existing rights.

And second, Judge Kozinski disagreed with Newsham and Godin, finding that anti-SLAPP laws do conflict with the Federal Rules:

The Federal Rules …provide an integrated program of pre-trial, trial and post-trial procedures designed to ensure “the just, speedy, and inexpensive determination of every action and proceeding.” . . . The California anti-SLAPP statute cuts an ugly gash through this orderly process. . . . Federal courts have no business applying exotic state procedural rules which, of necessity, disrupt the comprehensive scheme embodied in the Federal Rules, our jurisdictional statutes and Supreme Court interpretations thereof.

The D.C. Circuit, citing Judge Kozinski’s concerns, narrowly avoided creating a circuit split with Newsham, Henry, and Godin in Abbas v. Foreign Policy Group, LLC (2015), when it granted dismissal of a lawsuit based on 12(b)(6) but argued in dicta that the D.C. anti-SLAPP statute should not apply in federal court:

Federal Rules 12 and 56 answer the same question as the D.C. Anti-SLAPP Act, and those Federal Rules are valid under the Rules Enabling Act. A federal court exercising diversity jurisdiction therefore must apply Federal Rules 12 and 56 instead of the D.C. Anti-SLAPP Act’s special motion to dismiss provision.

It seems only a matter of time before another Court of Appeals adopts Judge Kozinski’s opinion and Abbas’s dicta into a holding and creates a circuit split with Newsham, Godin, and Henry. The Supreme Court spectacularly failed to clarify the Erie Doctrine in its 2010 case Shady Grove Orthopedic Associates v. Allstate Insurance Co., when the Justices split 4-1-4 with no majority opinion. But with Justice Scalia—author of the Shady Grove plurality—and Justice Stevens—author of the concurrence in judgment—no longer on the Court, we expect the Erie Doctrine to appear again at the high court.

For further reading, see these law review pieces from Boston College and Case Western.

Welcome, dear readers!

We call it Sunday Splits. Each week (but only on Sundays!) we will post a short discussion about a “circuit split.” For the uninitiated, a circuit split results when a federal circuit court of appeals rules differently on the same legal question as another court of appeals. These “splits” lead to a very enticing prospect—Supreme Court review.

We are a group of law students who specialize in Supreme Court litigation. Our organization, the Emory Law School Supreme Court Advocacy Program (ELSSCAP), files briefs exclusively at the high Court, so we follow legal news and developments closely. We have started this blog to highlight interesting issues that one day may end up before the Nine.

In these pages—screen?—we will organize and describe important circuit splits that we think are worthy of appearing before the high Court. (And some that are perhaps less worthy, or consequential, but nonetheless interesting). We are just beginning this journey, and we acknowledge at the outset that this is an ambitious experiment. If we are successful, however, we hope this blog will be a definitive repository of the issues that may soon be heard before the Court.

Before we begin, a brief word on our intended audience:

  • First, we hope this blog can be a resource for practicing attorneys who may bring cases to the Court. If that describes you, then we hope we can organize our splits so that you can find your match.
  • Second, to the legal academy, we hope to be a resource for professors and aspiring writers who look to these pages for article and comment ideas. If that describes you, we invite you in turn to share your ideas with us at elsscap@emory.edu.
  • Third, to the parties in litigation—perhaps you have lost an appeal at a federal circuit court of appeals, or a state supreme court, and the legal issue you face is described here. If so, we invite you to tell us about your case using our intake form (also available on our website), and we will let you know if we can help you.

This blog is not affiliated with Emory University, and we provide no legal advice, but we will do our best to provide engaging commentary.

That is all, for now – may the blogging begin!

It is so ordered.

Hamp Watson, director of ELSSCAP, Emory Law Class of 2017