« It's Snowing Sideways | Main | 11th Commandment »
February 28, 2005
Foreign Flag Floating Firetraps - Spector v. Norwegian Cruise Line
This morning we went to hear the oral arguments in Spector v. Norwegian Cruise Line at the Supreme Court. I love visiting the court, and this morning was great. The Court will decide whether (and to what extent) the Americans with Disabilities Act applies to foreign-flagged cruise ships. Background information available here.
Despite my upcoming spring break cruise (not on Norwegian), we went less for the subject matter and more to hear arguments by some of the best Supreme Court advocates in the business: Tom Goldstein of Goldstein & Howe (and of course, contributor to SCOTUSBlog) represented the petitioners. David Salmons, Assistant to the Solicitor General argued on behalf of the United States, as amicus curiae in support of petitioners. Norwegian was represented by former Assistant S.G. David Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel (who literally wrote the book on Supreme Court and Appellate Advocacy). Finally, Greg Carre of Hogan & Hartson argued on behalf of the Bahamas as amicus curiae in support of Norwegian. For those interested in things like appellate advocacy (e.g., me) this was an all-star game of sorts. All four did a phenomenal job. I know, I'm gushing here, but it really was quite impressive, especially given that I've seen less than stellar advocacy on more than one occasion in the past. (See Oct. 15, 2002: I finally Got My Day In Court.Syngenta Crop Protection, Inc. v. Henson, Nov. 11, 2004: Man's Best Friend? The 4th Amendment)
I didn't take extensive notes like I did at the Illinois v. Caballes arguments, but there will be plenty of other coverage on line, I'm sure. If that's your thing, check out Oyez for the transcript and (hopefully) audio in the near future. For up and coming attorneys and law students, it's worthwhile to hear it done properly.
Because I'm not as familiar with the ADA or maritime law as I am with the recent 4th Amendment jurisprudence, I can't really provide much substantive analysis. A few quick thoughts after the jump, however.
1. It took Justice O'Connor less than a minute to find an opportunity to ask what is becoming one of her favorite questions (much to Justice Scalia's chagrin, no doubt): How have other countries, such as those in the EU, handled this issue? Apparently, the EU hasn't addressed it, but Australia handles it the way petitioners would like, which is to say they apply Australian disability laws to foreign-flagged ships.
2. The Justices sparred with both Goldstein and Salmons over the distinction between extraterritorial application of American laws and extraterritorial impacts, leading Justice Ginsburg to ask Goldstein if the "U.S. is to rule the world?" Attorneys and Justices alike picked up on the phrase and repeated it throughout the morning.
3. In a discussion of the clear statement doctrine, Salmon (I think) said to Justice Scalia that the Court had not yet issued a ruling explaining the doctrine in a certain way, prompting Scalia to reply, "If we haven't said it yet, we should." Watch for an opinion from Justice Scalia explaining his view on this issue.
4. Law school supposedly teaches us not what the law is, but "how to think like a lawyer." That made Justice Ginsburg's "Suppose you're not a lawyer..." remark to Carre all the better.
5. The argument that sticks out the most in my mind, and which I think Norwegian has a tough time overcoming -- despite Justice Scalia's attempt to help spell it out -- is as follows. If the U.S. can't enforce Title III of the ADA (prohibiting discrimination against those with disabilities) against foreign-flagged ships in U.S. ports, with American passengers, it follows that it can't enforce Title II of the Civil Rights Act of 1964 (prohibiting discrimination on the basis of race) in similar situations. Both laws use similar language and both are rooted in Congress's Article I powers under the Commerce Clause. The idea that a cruise line which carries 65% American passengers, which has 95% of its cruises depart from American ports, and which advertises heavily in the U.S., but is registered elsewhere, could simply choose not to serve people based on their race is unpalatable to say the least, and one I can't imagine the Court allowing. That's not to say I guarantee victory for Spector, just that it's a tough obstacle for Norwegian to get around.
Posted by buddha at February 28, 2005 04:12 PM
Trackback Pings
TrackBack URL for this entry:
http://www.jewishbuddha.org/cgi-bin/mt/mtb.cgi/186