Five-Four is one of my favorite podcasts. I look forward to Peter, Rhiannon, and Michael cracking jokes and skulls (parody! parody! parody!) each week. One tiny seed they planted in my brain is about Justice Ginsberg. Maybe she is a complex human being (aka fallible), not a super-powered elder fighting injustice. Maybe Notorious R.B.G, RBG, and On the Basis of Sex have oversimplified her story. (Review: The Danger of a Single Story).

One of the hosts made an off-hand comment (what is an on-hand comment?) about how Justice Sotomayor is probably the strongest writer and most solid in terms of jurisprudence. So, I’ve started a quest. I’m going back in time to listen to oral arguments and read through the opinions authored by Justice Sotomayor in hopes that I can glean some wisdom and improve my writing.

Listen to arguments at Oyez.
Read through opinions at Justia.

Act I, Scene I: Mohawk Industries, Inc. v. Carpenter

Our first stop involves the world’s largest flooring manufacturer, allegations of employing undocumented immigrants, and the disclosure of information protected by attorney-client privilege.

The question before us is whether disclosure orders adverse to the attorney-client privilege qualify for immediate appeal under the collateral order doctrine. Agreeing with the Court of Appeals, we hold that they do not. Postjudgment appeals, together with other review mechanisms, suffice to protect the rights of litigants and preserve the vitality of the attorney-client privilege.

Listening to oral arguments, I am reminded that improvisation is an essential skill during appeals.

Reading through the opinion, I found a gift. Order from the chaos, structure among the murkiness of Scalia, Alito, or Uncle Umpire himself. This case was unanimous (9-0) and so clearly skipped on the podcast. It is an interesting question: can the world’s largest flooring manufacturer immediately appeal the district court’s decision to compel them to provide Carpenter with information from his meeting with their counsel about his allegations the company was employing undocumented immigrants? In a word: no.

Permitting piecemeal, prejudgment appeals, we have recognized, undermines “efficient judicial administration” and encroaches upon the prerogatives of district court judges, who play a “special role” in managing ongoing litigation. Firestone Tire & Rubber Co. v. Risjord

Ah yes, my old nemesis: judicial efficiency. While deciding the other way may have been disruptive to the judicial system, I think the pandemic offers great insight: the system will not change without major disruptive events.

MI trial courts have made a pretty incredible transition in the last four months. Probably more than in the last two decades. Michigan Chief Justice Bridget Mary McCormack on Legal Talk Network

P.s. What about the alleged employment of undocumented immigrants to lower wages? In 2012, Mohawk settled a class-action suit for $18 million.

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