FedSoc Blog

Opportunity for SCOTUS to Clarify Class-Action Law

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by Publius
Posted October 24, 2014, 1:45 PM

Opportunity for SCOTUS to Clarify Class-Action LawThe Wall Street Journal reports:

The 2010 Gulf Coast oil spill was a disaster for local businesses and the environment but also the best thing ever to happen to the trial lawyers who continue to exploit the accident for fun and profit. Now the Supreme Court has an opening to impose discipline on the class-action lawsuit industry by forcing the tort bar to prove its claims.

Two years after the Deepwater Horizon explosion, BP consolidated the 2,700 lawsuits that were then still outstanding after setting up a voluntary $20 billion fund to compensate shrimpers, hotels dependant on tourism and the like. The class as certified by New Orleans federal district Judge Carl Barbier became entitled to a settlement pool estimated to be $7.8 billion, and he appointed an old trail lawyer friend Patrick Juneau as claims administrator.

That compensation facility has since become a sink of self-dealing, according to a report by Special Master and former FBI director Louis Freeh , involving potential violations of “criminal statutes regarding fraud, money laundering, conspiracy or perjury” that “caused tangible harm to the integrity” of the fund. But the main offense is that Mr. Juneau has ignored the settlement’s language that defines the class as people who have suffered injuries such as lost income “as a result of” the spill, and he is applying more ambiguous language from elsewhere in the document.

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Ramseyer: “Biases That Blind: Professor Hyman and the University”

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by Publius
Posted October 23, 2014, 9:38 AM

Ramseyer: Recently the Illinois Law Review published a response to Professor Hyman's article, "Why did Law Professors Misunderestimate the Lawsuits Against PPACA?" The response by Professor Ramseyer argues "that the statements made by law professors about the constitutionality of the PPACA often reflected partisan loyalty more than thoughtful legal analysis." He continues:

Not only was the Patient Protection and Affordable Care Act (PPACA; Obamacare) constitutional, they declared, but to suggest otherwise was foolish—at best. As David Hyman meticulously details, they declared the issue “obvious,” “open and shut.” Any claim to the contrary had “no legal merit.” It was “silly,” a “non-starter,” “if not frivolous, close to it," "completely bogus," and "beneath contempt." Anyone who questioned the Act's constitutionality was "simply crazy," a "wing nut," "deeply ignorant," "grandstanding in a preposterous way," a "proponent of slavery and segregation"—or maybe even a bit akin to Lee Harvey Oswald. 

Our constitutional law colleagues (with very few exceptions) described the PPACA as a valid exercise of the Commerce Power, and in this they were wrong. The statue straightforwardly violated the Commerce Clause, the Supreme Court explained. It could stand only in modified form and only as an exercise of the government's taxing power—the taxing power of a President who had adamantly assured voters that the statute was not a tax. . . .

Our colleagues obviously let their wish lists get ahead of their brains.

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Elon University School of Law: Revolutionary New Program?

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by Publius
Posted October 22, 2014, 9:47 AM

Elon University School of Law: Revolutionary New Program?The Winston-Salem Journal reports:

Elon University School of Law will be cheaper, shorter and — it hopes — more relevant to today’s evolving legal profession.

The law school announced Thursday that it will lower tuition by about $14,000 over three years and that students will earn their degrees a semester sooner.

Elon believes it’s the only law school in the nation with a baseline 21/2-year degree program for all students. Elon also says it’s the only law school in the country to require all students to hold an externship, a full-time legal apprenticeship, during the academic year.

“It seems like we should be the one to do something special,” law school Dean Luke Bierman said Thursday. “Leadership comes only if you apply it, and we thought this was a good opportunity to apply some leadership.”

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Executive Orders: Measuring the Number and Content

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by Publius
Posted October 21, 2014, 11:42 AM

Mercatus Center studyThe Mercatus Center published an interesting report recently. They wrote:

As John Hudak of the Brookings Institution pointed out, “not all executive orders are created equal. Some are quite forceful, making dramatic changes to policy. Others are more routine, housekeeping issues. To say that one president issued more executive orders than another, tells us little about the scope of those orders or the impact they have on policy.”

While other analysts have examined the number of executive orders issued by different administrations, we have used RegData, a database producing statistics based on the Code of Federal Regulations, to examine some of the content of these executive orders and proclamations for the past six presidencies, through the end of Obama’s first term. In particular, we examine the usage of restrictions—words that create binding, legal obligations, such as “shall” and “must.” Although the current administration has issued fewer executive orders than other modern administrations, the figures below show that its total usage of restrictions in executive orders and proclamations exceeds that of any of the past six administrations, with the exception of Clinton’s first term. In fact, while the figures below show that Obama’s first term hardly stands out from other presidents with regard to the number of words published in executive orders and proclamations, both the Obama years and the Clinton years stand out for the restrictiveness of the text they produced, as measured by restrictions per 1,000 words.

Read the full report.

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Unaccompanied Minor Crisis Moves from the Border to the Courts

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by Publius
Posted October 16, 2014, 8:44 AM

The Unaccompanied Minor Crisis Has Moved From The Border To The CourtsFiveThirtyEight reports:

Stories about the influx of unaccompanied minors from Mexico and Central America into the United States have all but disappeared from the news. After dedicating “historic levels of personnel, technology, and resources to the Southwest border,” the White House reported last month that the border was “more secure than it has been in decades,” and that a sharp decrease in unaccompanied minors attempting to cross the border was recorded in July and August.

But the crisis is still causing havoc. The backlog of cases in immigration courts is the biggest it has been in 20 years and has been growing steadily since 2000 (including an uptick after the increased allocation of resources for border protection).

“Policies aimed at enforcing the removal of these immigrants have been funded to the tune of billions and billions of dollars,” said Vanessa Allyn, the managing attorney for refugee representation at Human Rights First. “But the courts haven’t been equally funded. There’s absolutely no parity in the resources for removal versus the resources for actually adjudicating these cases.”

There are 260 immigration judges in the United States, and each judge decides about 1,500 cases per year, Allyn said. But even at that rate, the judges can’t keep up with the number of cases.

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Supreme Court Blocks Enforcement of Texas Abortion Law

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by Publius
Posted October 15, 2014, 8:39 AM

Supreme Court Blocks Enforcement of Texas Abortion LawPolitico reports:

The Supreme Court late Tuesday blocked enforcement, at least temporarily, of some of the controversial Texas abortion law that had shuttered most of the state’s remaining abortion clinics.

The Center for Reproductive Rights, which is leading the legal fight, said the clinics would be able to reopen as soon as Wednesday.

The court, in a 6-3 decision, said that Texas cannot immediately enforce the part of the law that requires the clinics to meet the standards of ambulatory surgical centers across the state. Texas argued that the upgrades were needed to protect women’s health. The abortion providers said that the requirements warranted costly upgrades that they felt were unnecessary and were aimed less at enhancing safety than limiting women’s access to abortion.

The Court of Appeals for the 5th Circuit on Oct. 2 had said that the provision could be enforced immediately. That led to the swift closure of more than a dozen clinics across the state.

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Falsely Shouting “Ebola!” on a Crowded Bus

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by Publius
Posted October 14, 2014, 1:41 PM

Photo by m_ke (Flickr)At the Volokh Conspiracy, Eugene Volokh comments on a Los Angeles bus driver shouting, “Don’t mess with me, I have Ebola!” He writes:

The shouting is pretty clearly constitutionally unprotected, because it’s a knowing falsehood that has the potential to cause direct and substantial harm (seriously emotionally distressing fear of injury, the interference with daily activities caused by a quarantine, the cost needed to disinfect the bus, and so on). As I read United States v. Alvarez (2012), most knowing falsehoods can be restricted if the restriction passes “intermediate scrutiny,” and in this case a suitably crafted restriction on lies about communicable diseases would indeed pass such scrutiny.

But it would be interesting to see just which California statute would be used to punish such speech. . . .

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Wisconsin and Texas Voter ID Laws Blocked by Courts

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by Publius
Posted October 10, 2014, 8:48 AM

Wisconsin and Texas Voter ID Laws Blocked by CourtsThe Los Angeles Times reports:

The U.S. Supreme Court late Thursday blocked Wisconsin from enforcing its strict voter identification law in November’s election.

By a 6-3 vote, the justices granted an emergency appeal from civil rights lawyers, who argued it was too late to put the rule into effect this year.

Lawyers for the ACLU noted that the state had already sent out thousands of absentee ballots without mentioning the need for voters to return a copy of their photo identification.

It would be “chaos,” they said, for Wisconsin to have to decide whether to count such ballots now because voters had failed to comply with the new law.

Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas dissented. The six justices in the majority did not issue a written opinion to accompany the decision to lift an order by a lower court that would have allowed the law to take effect.

At nearly the same time, a federal judge in Texas struck down that state's new voter ID law on the grounds that it violated the constitutional right to vote and discriminated against racial minorities.

Texas Atty. Gen. Gregg Abbott said the state would appeal.

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Supreme Court Upholds North Carolina’s Voting Rules

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by Publius
Posted October 09, 2014, 8:25 AM

Supreme Court Upholds North Carolina's Voting RulesUSA Today reports:

For the second time in two weeks, the Supreme Court on Wednesday upheld a state law restricting voters' access to the polls.

The latest ruling affects North Carolina, scene of a tight Senate race that could help decide which party wins control of that chamber for the final two years of President Obama's term.

The justices reversed a federal appeals court's decision that would have allowed same-day registration and counted votes cast mistakenly in the wrong precincts. Those were among several other procedures eliminated by the state Legislature last year in what critics called the most restrictive voting law in the nation.

Two justices — Ruth Bader Ginsburg and Sonia Sotomayor — dissented from the decision. They wrote that the two voting restrictions "likely would not have survived federal preclearance" under the Voting Rights Act before a key section was struck down in a 5-4 decision by Chief Justice John Roberts last year.

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Twitter Sues the Government for Violating Its First Amendment Rights

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by Publius
Posted October 08, 2014, 8:24 AM

Photo by mkhmarketing (Flickr). Wired reports:

For months, Twitter has tried to negotiate with the government to expand the kind of information that it and other companies are allowed to disclose. But it failed. Today, Twitter asserts in its suit that preventing the company from telling users how often the government submits national security requests for user data is a violation of the First Amendment.

The move goes a step beyond a challenge filed by Google and other companies last year that also sought permission on First Amendment grounds to disclose how often it receives national security requests for data. In the wake of the Edward Snowden leaks about government spying and the so-called PRISM program, the companies sought to add statistics about national security requests to transparency reports that some of them were already publishing. Up to that point, the reports had revealed only the number of general law enforcement requests for data that the companies received each year, not so-called National Security Letters the companies received for data or other national security requests submitted with a court order from the Foreign Intelligence Surveillance Act Court.

The companies asserted that without the ability to disclose more details about the data requests they received, the public was left to speculate wildly that they were providing unfettered access to user data or giving the government information in bulk. If the public knew how few requests for data they actually received, they argued, people would be re-assured that this was not the case.

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Airbnb Legal Debate Heats Up in San Francisco

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by Publius
Posted October 07, 2014, 2:45 PM

Airbnb Legal Debate Heats Up in San Francisco The Wall Street Journal Law Blog reports:

A coalition of local community leaders gathered on the steps of City Hall on Friday afternoon to voice their concerns with a proposal being put before the city’s board of supervisors Tuesday. The proposal would formally legalize short-term rentals – a practice that still exists in a legal gray area – while imposing limits on who is allowed to list apartment rentals online.

In a letter to Supervisor David Chiu, the coalition requested the proposal put stricter limits on short-term rentals. No property should be rented for more than 90 days, they said, and buildings developed by the city for low-income housing should be barred from online listings.

The group also proposed that tenants should have the right to sue their neighbors over potential violations.

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Same-Sex Marriage Petitions Denied

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by Publius
Posted October 06, 2014, 9:06 AM

Same-Sex Marriage Petitions DeniedSCOTUSblog reports:

Last month Justice Ruth Bader Ginsburg had suggested that the Court might not step into the [same-sex marriage] controversy at this point, because there was no disagreement among the lower courts on that issue.

Today her prediction proved true, with the Court denying review (without any comment) of the seven petitions:  Bogan v. Baskin (Indiana); Walker v. Wolf (Wisconsin); Herbert v. Kitchen (Utah); McQuigg v. Bostic (Virginia); Rainey v. Bostic (Virginia); Schaefer v. Bostic (Virginia); and Smith v. Bishop (Oklahoma).

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Epstein: WSJ’s Improbable Defense of Judge Lamberth’s Indefensible Decision in Perry Capital

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by Publius
Posted October 03, 2014, 9:07 AM

Epstein: WSJ's Improbable Defense of Judge Lamberth's Indefensible Decision in Perry CapitalIn Forbes, Richard Epstein comments:

My recent post on Forbes.com expressed my deep dissatisfaction with the thunderbolt that Judge Royce Lamberth launched (without argument or discovery no less) in Perry Capital LLC v. Lew  against the private shareholders of Fannie Mae and Freddie Mac when he sustained the 2012 full dividend sweep under the Third Amendment to the original 2008 Senior Preferred Stock Purchase Agreement. This morning, Judge Lamberth’s decision received a full-throated defense that reads as if it was published in Revolution Magazine, but which in fact appeared on the normally level-headed editorial page of the Wall Street Journal.  Ominously entitled, Godzilla Defeats the Thing, the Journal heaps lavish praise on Judge Lamberth for exposing the shareholder “scam” that in its words “combined dubious legal reasoning with junk economics.”

Really? The gist of the Journal’s argument was that both Fannie and Freddie would have been dead in the water without the $188 billion bailout that they received from the United States Treasury. The real question is what follows next.  In the eyes of the Journal, once the original bailout was given, the government could have, and should have, have taken over the entire operation lock, stock and barrel. Yet that was exactly what the Government decided not to do at the time when it opted for a conservatorship that let the Treasury take two pieces out of the Fannie and Freddie pie. The first was its senior preferred that carried with it a 10 percent dividend rate, which increased to 12 percent if Fannie and Freddie deferred payments on their obligations. The second was an option to purchase some 79.9 percent of the common stock for a nominal price of $0.00001 per share.

Most notably, the SPSPA did not contain any provision that said, “In the event that this infusion of cash rescues Fannie and Freddie, the United States Treasury reserves the right to modify this agreement so as to claim all the profits that the business generates at any future time.” It does not take an advanced degree in finance to explain why this provision was conspicuously absent from the 2008 deal.  Put it in and all of a sudden the two previous clauses are irrelevant to the terms of the deal. 10/12 percent is no longer the dividend rate, and the warrant to purchase the common stock at a nominal price is equally worthless.  Why should the government pay even a dollar to get common stock that with a stroke of the pen it could acquire for free? And why should anyone bother to trade in shares which the government has announced in advance will be worthless to them no matter how valuable the company? . . .

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District Judge Blocks ACA Rule for Non-Exchange States

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by Publius
Posted October 01, 2014, 8:39 AM

Image by Flickr user Images_of_MoneyBloomberg reports:

An Oklahoma federal judge dealt a blow to President Barack Obama’s health-care law, invalidating IRS rules aimed at making policies affordable for consumers around the country.

U.S. District Judge Ronald White in Muskogee ruled today that subsidies, in the form of tax credits, apply only to consumers in the 14 states that have set up insurance marketplaces and not to individuals who buy insurance on the federal marketplace, as in Oklahoma. An Internal Revenue Service rule says needy customers in both the federal and state marketplaces are eligible for subsidies.

“The court is upholding the act as written,” White said, citing language in the law that limits subsidies to those in states with their own exchanges. He called the IRS regulations “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.”

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Whistleblowers Under Threat in Supreme Court Case, Lawmakers Warn

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by Publius
Posted September 30, 2014, 3:17 PM

Whistleblowers Under Threat in Supreme Court Case, Lawmakers WarnThe Wall Street Journal Law Blog reports:

A former air marshal’s whistleblower case against the Transportation Security Administration is getting support from a bipartisan group of lawmakers, who say the Obama administration’s legal position would “grant agencies unprecedented power to decide when employees may expose misconduct.”

The Supreme Court is deciding whether a fired air marshal, Robert MacLean, should receive federal whistleblower protections for telling the press in 2003 about a TSA decision to use fewer air marshals on long-distance flights despite warnings of possible hijacking threats. The Supreme Court agreed to hear the case in May with arguments set for Nov. 4.

The case involves a clash between two sets of federal laws — one protecting the rights of whistleblowers and the other limiting disclosure of sensitive but unclassified information about transportation security.

The Department of Homeland Security’s interpretation of the Whistleblower Protection Act “would allow agency regulations to erode the statutory protections Congress created for whistleblowers,” states a friend-of-the-court brief signed by six lawmakers. “It would deter disclosure of government misconduct and impair Congress’s oversight role.” . . .

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