If I finish this post in the next 50 minutes, I will have predicted 2/3 of the cases this week before they were actually argued, which is substantially better then I have been doing lately.
No. 02-337 Breuer v. Jim's Concrete of Brevard
Since I have been paying attention to the Supreme Court, I have come to understand that it schedules each week in a particular way. Cases that involve complex or technical mattters typically are scheduled for argument on Monday. Tuesdays are the in-between day -- the issues are typically more substantive than a Monday argument, but the real sexy issues are saved for finale of the week, Wednesday arguments.
Thus, it is no surprise that this sizzling case about removal jurisdiction follows yesterday's relatively pedestrian affirmative action cases. The petioner here argues that because the Fair Labor Standards Act states that he may "maintain" his case in federal or state court, that once he brings the case in state court, it cannot be removed, otherwise he's not "maintaining" it in state court, is he?
It's not as stupid an argument as it sounds. Back in the days before § 1441, removal jurisdiction was not all that common, and FLSA actions were usually for some minor amount of back wages. The secretary of labor said that such actions were not removable, because they could effectively make the cost of litigating more than the eventual recovery. Nevertheless, § 1441 was recast to provide that unless the statute expressly provides otherwise, all actions that a federal court has jurisdiction over are removable.
The petitioner argues that the word, "maintain" and the principle that removal statues should be construed narrowly combine to compel the conclusion that FLSA actions may not be removed. Ultimately, I think the petitioner is stretching it. Stretching it really far. I predict the Court will AFFIRM.
No. 02-428 Dastar v. Twentieth Century Fox
This is a messed up case. Fox is suing for a trademark violation because someone sold a TV show that it produced, but that is in the public domain, without crediting the actual creators. I thought the point of the public domain is that nobody owns it anymore. It doesn't seem right that Fox should retain some trademark interest once it has let its copyright interest lapse. I predict the court will REVERSE, following the same instincts that led me to incorrectly predict the Eldred case. Will I ever learn?