Hastings Law Journal

Under current law, the Judicial Council distributes funds among trial courts. If passed, AB 1208 would make some significant changes to the existing structure. Government Code section 77006.5, for example, currently defines “trial court funding” to mean “state funds provided for the operation of the trial courts…appropriated by the Budget Act, and allocated or reallocated by the Judicial Council.” AB 1208 would amend this section to provide that trial court funds be allocated “by law” instead – in effect, removing the intermediary role of the Judicial Council and providing a direct financial link between the Legislature and the trial courts. Government Code section 68502.5(c), which grants the Judicial Council the “ultimate responsibility” of creating a budget and allocating funds among trial courts, would be deleted entirely under AB 1208.

AB 1208 represents a bold step in the effort to ensure access to justice, but it has proven controversial nonetheless. Judges are split on the bill. The Judicial Council and Chief Justice Tani Cantil-Sakauye have voiced strong opposition, while a number of individual judges have given their support. The Los Angeles Superior Court – the largest in the state – has endorsed the bill, which may give it the needed boost to guarantee passage.

There is undoubtedly appealing logic in decentralizing the court system and cutting overhead administrative costs. And given the perpetual budget woes facing the state, AB 1208 is, at the very least, a reminder that the Legislature is aware of the consequences of shuttering courtroom doors. It is too early to judge whether AB 1208 itself is the right vehicle for curing the courts’ budgetary problems. Nonetheless, it is an important first step.

In Grutter, the Court found the law school admission plan sufficiently narrowly tailored to meet a compelling government interest under the Equal Protection Clause for three main reasons. First, the Court accepted the school’s stated need for diversity in education as a valid justification under the “compelling state interest” prong of Equal Protection analysis. Second, Justice O’Connor emphasized the distinction between rigid quotas and flexible goals, criticizing the former for “insulat[ing] the individual from comparison with all other candidates” while endorsing the latter as “permit[ting] consideration of race as a plus factor…while still ensuring that each candidate competes with all other qualified applicants.” This distinction suggests that the ability of similarly qualified candidates to directly compete, with race playing only a factor, is a critical component of any permissible affirmative action plan. Third, the Court stated that race-conscious admissions plans are acceptable only when the university makes individualized considerations in which race is part of a holistic determination, which underscores the distinction between quotas and goals. Thus, the law school plan was sufficiently narrowly tailored to satisfy the Equal Protection Clause because race was not the sole determinative factor. These latter two points define the Court’s “narrowly tailored” analysis of affirmative action plans. For example, in Grutter’s companion case, Gratz v. Bollinger,[4] the Court struck down the University of Michigan’s undergraduate admissions policy of automatically awarding minority applicants a decisive number of points on a scale. The issue raised in Fisher, on the other hand, implicates the more basic premise of Grutter – that achieving a “diverse student body” is a compelling state interest – which would render the Court’s subsequent “narrowly tailored” determination moot.

There are a few ways this case could ultimately play out. The New York Times article, for instance, anticipates a wholesale rejection of Grutter, which would presumably mean that “achieving a diverse student body” is no longer a compelling state interest. Alternatively, the Court may also decide to adhere to Grutter, but narrow it considerably in such a way as to defeat the University’s admissions plan. In Grutter, Justice O’Connor emphasized that “because universities, and in particular, law schools, represent the training ground for a large number of the Nation’s leaders, the path to leadership must be visibly open to talented and qualified individuals of every race and ethnicity.” Thus, the Court may decide that a diverse student body is a compelling state interest, but only in the context of graduate or law school. In either scenario, the University loses its compelling state interest justification.

It is important to note, however, that the University could still prevail. Any change to the Grutter framework, which was the basis of the district court’s decision, would require the case to be remanded, giving the school the opportunity to articulate a different interest. Furthermore, the New York Times analysis ignores the standing issue. The Fifth Circuit noted that, because the plaintiffs had no intention of reapplying to the University of Texas at Austin and had not established a class, there was no “imminent threat of future injury” and thus no equitable relief may be granted. If the Supreme Court accepts this view and denies cert, then the predicted Grutter showdown may have to wait for another day.

The immediate consequence of the Court’s decision is to prevent Robert Nicastro from making a case against J. McIntyre in his home state, forcing him to sue in the United Kingdom or take his chances on establishing jurisdiction in another state.  This defeat for American consumers is hardly one that contradicts the Court’s pro-corporate image.  Furthermore, the ruling suggests a means by which foreign corporations can do business throughout the United States without ever being subjected to products liability claims in state courts.

To be sure, Ginsburg’s dissent is clearly written and stakes a principled position consistent with existing law.  Joined by Justices Sotomayor and Kagan, Ginsburg challenges the foundation of the plurality’s opinion – that consent of the defendant to the sovereign’s jurisdiction, direct or implied, is the cornerstone of personal jurisdiction.  From this perspective, availment of the benefit of state laws must be sufficiently purposeful as to support an inference of consent to jurisdiction.  Ginsburg persuasively argues that the only limit to a state’s adjudicatory authority is the individual Due Process liberty interest recognized by the Constitution, and thus courts should weigh the connection between the forum state and the controversy – essentially the interest of the state – against any potential unfairness or unreasonableness of exercising jurisdiction – the liberty interest of the defendant.  For Ginsburg, making J. McIntyre defend in New Jersey as a cost of doing business throughout the United States is fairer and more reasonable than forcing Mr. Nicastro to litigate far from his home.  The manufacturer’s overt acts (marketing throughout the country, offering services to consumers in all states) demonstrate that the company was purposefully availing itself of the laws and protections of all states.

Nicastro illustrates that the corporatism of the U.S. Supreme Court is robust across the ideological spectrum.  Even though European courts would have found jurisdiction in this case, the joint concurrence of Justices Breyer and Alito appears ready to deny American consumer claims against foreign manufacturers under any test.  Seemingly out of genuine respect for the institution of the Supreme Court and concern for its reputation, Ginsburg suggests that by choosing to put American companies at a disadvantage relative to foreign corporations the plurality is contradicting the common view of the Court with respect to corporate interests.  While we can certainly hope that future cases afford the Court the opportunity to adopt the position elucidated in Ginsburg’s dissent, softening its pro-corporate image may only deflect legitimate criticism of a Court that has taken great strides in recent years to limit individuals’ access to justice.