Althouse: Justice Sonia Sotomayor says: "the problem with every test is that you can find an exception that makes the application ridiculous."

November 12, 2009

Justice Sonia Sotomayor says: "the problem with every test is that you can find an exception that makes the application ridiculous."

Doesn't that just make you want to think of a rule that does not require an exception to avoid ridiculousness? Then aren't you intrigued by the paradox that you will have just come up with an exception to her rule (about the need for exceptions to avoid ridiculousness), and that will simultaneously support and undercut her rule?

Or you can just think about whether there should be a clear test for determining a corporation's "principal place of business" for the purposes of §1332 diversity jurisdiction or whether it would be better to use a multi-factor approach?

26 comments:

The Drill SGT said...: Multi-factor seems the way to go, else you get Delaware as an answer for all firms or gaming of the system to avoid taxes and gain a friendly legal environment.; 11/12/09, 1:57 PM
Jim Hanson said...: I love pretzel logic and strange loops. Now you have my little brain all Godel, Escher, Bached up.

Cordially,

Uncle J; 11/12/09, 2:12 PM
Alex said...: This is what happens when Affirmative Action is your God.; 11/12/09, 2:25 PM
Widmerpool said...: No to the multifactor test. I recall lo these many years later the sound opinion of a law school professor of mine who denounced all legal tests based on factors as "a lawless approach". Are all the factors equally important? Some more important than others? How many do you have to meet? More often than not, the answer is "Who knows?" Far better to have a simple test with a predictable result, and the occasional absurd result.; 11/12/09, 2:28 PM
PatHMV said...: In this context, what exactly does "ridiculous" mean? My cynicism about Justice Sotomayor's judicial philosophy tells me that "ridiculous" is simply code for "doesn't let me make a ruling for the little guy and against the big bad corporation, like I want."; 11/12/09, 2:30 PM
Anonymous said...: Justice, if you have issues with weighing factors and applying tests why the hell are you a judge, let alone lawyer?; 11/12/09, 2:51 PM
Kirby Olson said...: Does water freeze at 32 degrees?; 11/12/09, 2:54 PM
Anonymous said...: Kirby Olson: Does water freeze at 32 degrees?

No, as I suspect you actually know perfectly well. :-)

Word verification: faqualsh, to violently subdue a set of questions that is asked too often.; 11/12/09, 3:02 PM
paul a'barge said...: Please don't make me have a heart attack or anything but what if we just let every corporation formally specify their location.; 11/12/09, 3:14 PM
Anonymous said...: Principal place of business should be defined by statute, not by judges.; 11/12/09, 3:21 PM
rhhardin said...: Judges are ridiculous, is the place to start.; 11/12/09, 3:21 PM
Paul said...: Justice Sonia Sotomayor says: "the problem with every test is that you can find an exception that makes the application ridiculous."

Heh! My reply is the rebuttal made famous by John Cleese in Monty Python's "Argument Clinic": "No it isn't!" (see, e.g., http://www.youtube.com/watch?v=teMlv3ripSM); 11/12/09, 3:36 PM
traditionalguy said...: Jurisdiction shopping is the issue. Make a rule that can be certain in its application and see what that screws up in practice, and then try another rule, and see what that screws up in practice...etc. That is all that Sonia, the Wise Hispanic Woman, is saying here. As I usual agree with her empathy level. Flipping a coin works too.; 11/12/09, 3:40 PM
From Inwood said...: Rule/test:

Ivy League grads are automatically qualified to be SCOTUS Justices.

Exception:

Guess who.; 11/12/09, 3:42 PM
From Inwood said...: Rule/test

Islam is a peaceful religion.

Exception:

Bang, bang you're dead!; 11/12/09, 3:44 PM
DADvocate said...: The long term effect of this will be more companies doing less business California.; 11/12/09, 3:50 PM
From Inwood said...: This just in:

Supreme Court Justice Sotomayor Wants To Forcibly Guest-Edit Blog Comments About Own Questions From Bench!; 11/12/09, 3:57 PM
Widmerpool said...: Trad Guy,

Unfortunately, I'd bet Sonia the Wise is plumping for the exact opposite: let's use factors so that wise people like me can reach the right result every time.; 11/12/09, 3:59 PM
Kirby Olson said...: All Latinas are wiser than all white males (but not because they have more empathy).; 11/12/09, 4:05 PM
Fred4Pres said...: Is she dicussing law or English grammar? Actually both are kinda similar.; 11/12/09, 4:10 PM
Will Cate said...: Ouch. Makes my brain hurt.

Hell, why have tests at all? Reality is such a malleable thing, ya know. If only we had a constitutionally authorized body to make such determinations --

-- oh, wait. Never mind...; 11/12/09, 4:31 PM
Anonymous said...: "The problem with every test is that you can find an exception that makes the application ridiculous."

Thank you Mr. Quayle - you can sit down now.

Next time you didn't do your reading for class, just tell us before hand and don't waste everyone's time.; 11/12/09, 4:43 PM
Lem Vibe Bandit said...: "Justice Sonia Sotomayor says: "the problem with every test is that you can find an exception that makes the application ridiculous."

I didn't see it in the article but I trust that Sotomayor has wisely set aside applying Max Factor ;); 11/12/09, 5:13 PM
Ann Althouse said...: The Drill SGT said..."Multi-factor seems the way to go, else you get Delaware as an answer for all firms or gaming of the system to avoid taxes and gain a friendly legal environment."

Under §1332, what is at stake is only whether there is federal court jurisdiction based on the plaintiffs being citizens of different states from any of the defendants. When a party is a corporation, it is a citizen of both its place(s) of incorporation and THE principal place of business. This case is only about determining what the principal place of business is, and the dispute is over whether it should be the corporate headquarters or a factors-based analysis. The place of incorporation also counts, so there are often multiple citizenships for a corporation.

Your concern is with things other than whether there is diversity jurisdiction. You are talking about what law applies to duties and transactions and where taxes should be paid and so forth. The tests for those things are not what the court will decide in this case.; 11/12/09, 6:18 PM
Mutaman said...: What would you expect when you appoint a sodomite to the Supreme Court?; 11/12/09, 8:20 PM
Adjoran said...: As Althouse points out in her last comment, this is a diversity question which is to be decided.

In truth, the mother of "diversity" questions is indeed jurisdiction-shopping. That doesn't mean a rule isn't needed, even if the current rule is incorrect.

The "multi-factor" approach in practice functions against any rule, empowering judges to assign weight to each "factor" capriciously. The result will rely more upon the predilections and prejudices of individual jurists and less upon the rule of law - standing on its head the concept of equality before the bar of justice.; 11/13/09, 3:27 AM