Monthly Archives: May 2016

Judicial Economy in Spokeo, Inc. v. Robins

In its recent opinion Spokeo, Inc. v. Robins, 578 U.S. ____ [PDF Warning], the eight-member Supreme Court seems to implicitly disregard judicial economy in favor of an attempt at clarity. In Spokeo, the plaintiff, a Mr. Robbins alleged that the website Spokeo violated the Fair Credit Reporting Act, 15 U.S.C. § 1681–1681x, incorrectly listed a bunch of information him, such as his age, marital status, familial status, income, and level of education. Id. at 6.  Spokeo is kind of a search engine for information about individuals, scraping databases and making that information available to businesses, etc. Id. at 5. The Court remanded the case back to the Ninth Circuit Court of Appeals on the issue of whether Mr. Robins’s alleged injury satisfied the concreteness requirement of the Constitutional test for standing under Article III. Id. at 13. Justice Alito, writing for the majority, reasoned that the Ninth Circuit failed to analyze Mr. Robins’s claim under the concreteness requirement, id. at 4, even though Mr. Robins alleged that this misinformation made it difficult to get a job, id. at 22 (Ginsburg dissenting).

Judicial economy is the efficiency of operation in the judicial system. Black’s Law Dictionary, 923 (9th ed. 2009). In this case, Mr. Robins will have to resubmit his pleadings to the Ninth Circuit so that it can correct it’s legal analysis to include the concreteness requirement. As Justice Ginsburg points out in her dissent, id. at 22 (Ginsburg dissenting), Mr. Robins pleaded facts that support an injury well beyond the “bare procedural” violation that Justice Alito is concerned about in the majority, id. at 11. This process will cost the Ninth Circuit, Mr. Robins, and Spokeo, an amount that is likely measured in the hundreds of thousands of dollars. And for what, simply because the drafting law clerk conflated two elements of an analysis?

Why does the Court not merely apply the correct concreteness analysis and affirm the Ninth Circuits on the underlying facts, but not the legal analysis? I know I’ve seen such an affirmation on facts but not on law, but I cannot think of anything offhand. Could someone cite to something in the comments?

Personally, I believe that this the Spokeo decision is a reaction to the perceived ineffectiveness of the current eight-member court. The decision, and especially Justice Thomas’s concurrence, is one of most theoretical decisions I’ve ever read. It seems that the court found a way to make a very legal distinction in the evolving area of Article III standing, and just kind of said this one will be relevant, even though it had all the facts it need to decide the case and make a clear(er) holding.

If you have a different take on the why of Spokeo, please leave a comment!

Is it illegal in Virginia to kick a duck family out of your pool? Depends on what “molest” means.


It looks like a pair of ducks have moved into the pool at my condominium. I’ve seen them there consistently in the afternoon and at night for the past week. At first, I was concerned that the chlorinated pool water might be bad for ducks, so I did some googling. I came across this website from the Dallas/Fort Worth Wildlife Coalition that says that it is against “state and federal law” to “disturb relocate or destroy nests or eggs [sic]” of native birds. The DFW Wildlife Coalition warns that the ducks are in the pool not just to lay out, but to make a nest. Therefore, the DFW Wildlife Coalition concludes, once the ducks have nested, you shouldn’t use your pool until the new duck family leaves. Does the same hold true for Virginia?

A male and female mallard ducks sit by an outdoor swimming pool with their heads tucked underneath their wings.The aforementioned uninvited, but not unwelcome, ducks.

Section 29.1-521(A)(2) makes it unlawful to “destroy or molest” the nest, eggs, or young of any wild bird without a permit, unless the wild birds are “nuisance species.”  Nuisance species, defined in section 29.1-100, do not include game animals such as ducks.  So it looks like it is a crime to destroy or molest the nest that duck family made in your pool. I don’t think anyone is planning to smash up the nest or eggs—or execute a bunch of ducklings—to get their pool back. Could we just throw the eggs or ducklings in a box and take them to a local pond? That turns on what molest means in the context of section 29.1-521(A)(2) of the Code of Virginia.

After a quick search, it doesn’t look like the Code defines molest. Black’s Law isn’t really helpful, defining molestation as “prosecution or harassment” or “unwanted and indecent advances to or on someone”. Black’s Law Dictionary, 1096 (9th ed. 2009). I don’t think the general assembly pictured homeowners prosecuting, harassing, or making indecent advances toward ducklings. The Oxford English Dictionary is more helpful, defining molest as to “annoy or pester . . . in a hostile or injurious way” and “attack or interfere with”. The Concise Oxford Dictionary, 877 (9th ed. 1995).

Presumably, you could move the nest, eggs, or duckling without injuring them. So, it comes down to whether moving the nest, eggs, or ducklings is an act of hostile annoyance or pestering. The OED defines hostile, in part, as “opposed.” Id. at 657. In moving the duck nest, you are definitely acting in opposition to the duck family. But who is to judge whether the eggs or ducklings would be pestered or annoyed? I mean, they are just ducklings—I don’t know if they can feel annoyed. I think adult ducks can express at least something very similar to annoyance, like the alarm quack when a person gets too close.

Ultimately, I would advise a client to call local animal control and ask for advice and help dealing with a duck nest established in a swimming pool. If you do violate Virginia law by removing a duck family from the pool, you can face fines up to $500. Va. Code §§ 18.2-11(c); 29.1-521(C).

Personally, I hope that the condo association has to close the pool for the summer. I am not a pool guy (I burn really easily), and I wouldn’t mind it if there were less people near my back patio this summer. If you’ve ever faced this problem, let me know what your did or what animal control said to do in the comments!