FedSoc Blog

New Post-Decision SCOTUScast: Halliburton Co. v. Erica P. John Fund, Inc.


by SCOTUScaster
Posted July 23, 2014, 1:31 PM

On June 23, 2014, the Supreme Court issued its opinion in Halliburton Co. v. Erica P. John Fund, Inc. This case presented two questions. The first was whether the Supreme Court should overrule or modify its decision in Basic Inc. v. Levinson, to the extent that it recognizes a presumption of classwide reliance derived from the “fraud-on-the market theory,” which posits that a company’s material misrepresentation regarding a security traded in the open market that affects the price of the security is presumed to have been relied on by a plaintiff who purchased the security and suffered a loss; and second whether, in a case where the plaintiff invokes the presumption of reliance to seek class certification, the defendant may rebut the presumption and prevent class certification by introducing evidence that the alleged misrepresentations did not distort the market price of its stock.

In a unanimous opinion delivered by Chief Justice John Roberts, the Court noted that under section 10(b) of the Securities Exchange Act of 1934 and the SEC’s rule 10(b)(5), investors can recover damages in a private securities fraud action only if they prove that they relied on the defendant's misrepresentation in deciding to buy or sell a company's stock. In Basic, the Court held that investors could satisfy this reliance requirement by invoking a presumption that the price of stock traded in an efficient market reflects all public, material information-including material misstatements. Given that Congress can change the law, Halliburton failed to provide the “special justification” necessary for the Court to overrule its prior decision in a statutory case. For the same reason, class action plaintiffs may rely on the Basic presumption to avoid having to directly prove in the first instance that the misrepresentation affected the stock price at the class certification stage. But nothing in Basic or any other Supreme Court decision prevents defendants from defeating this presumption at the class certification stage through evidence that the misrepresentation did not in fact affect the stock price, and courts should give them the opportunity to do so. The Court vacated and remanded the decision of the Fifth Circuit.

To discuss the case, we have Adam Pritchard, who is the Frances and George Skestos Professor of Law at the University of Michigan School of Law.

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Categories: SCOTUSreport

Halbig and the Nuclear Option


by Publius
Posted July 23, 2014, 10:20 AM

Ian Tuttle comments at National Review Online:

Halbig v. Burwell is far from over. The Obama administration has already announced its intention to ask the D.C. Circuit Court of Appeals for an en banc hearing, after a three-judge panel ruled today to uphold the original wording of the Patient Protection and Affordable Care Act (ACA). 

If the court accepts, the full eleven-judge bench will be tasked with deciding whether to endorse or to reject the panel’s decision. But the possibility of en banc endorsement is slim — thanks to Harry Reid.

Reid’s decision last November to invoke the “nuclear option,” thereby reducing the number of votes required to end a filibuster from 60 to a simple majority, 51, allowed Senate Democrats to break the Republican filibuster against, and confirm the nominations of, three judicial nominees appointed by President Obama. Those appointees — Patricia Millett, Cornelia Thayer Livingston “Nina” Pillard, and Robert Leon Wilkins — now sit on the D.C. Circuit Court of Appeals, where they are likely to cast the deciding votes to overturn Halbig’s panel ruling.

Patricia Millett, a 50-year-old Maine native, holds a political science degree from the University of Illinois at Urbana-Champaign and a law degree from Harvard. In the mid 1990s she argued cases before federal and state appeals courts on behalf of the U.S. Department of Justice’s Civil Division, after which she became an assistant to the U.S. solicitor general. In 2007 she joined the D.C.-based Akin Gump Strauss Hauer & Feld, where she headed the firm’s Supreme Court practice.

A former Akin Gump colleague of Millett has described her as “completely objective and non-ideological,” but it’s hard to tell, since she refused during her confirmation hearing to answer a question regularly asked of second-year law students applying for clerkships. . . .

Categories: External Articles

Halbig v. Burwell: Plain Language Trumps “Purpose” and “Intent”


by Publius
Posted July 22, 2014, 6:18 PM

Jonathan Keim comments at NRO's Bench Memos:

The D.C. Circuit’s carefully reasoned decision striking down the IRS’s unlawful tax subsidies in Halbig v. Burwell undermines the administration’s interpretation of the Affordable Care Act (ACA). As I noted before, a three-judge panel of the Court of Appeals for the D.C. Circuit held 2–1 that the IRS had exceeded its authority in issuing a tax regulation that mandated tax subsidies through federal Obamacare exchanges that were not “established by the State.” Judge Griffith wrote the majority opinion, joined by Judge Randolph (who also wrote a separate concurring opinion). Carter appointee Judge Harry Edwards dissented.  (The Fourth Circuit issued a contrary opinion today, too. More on that later.). 

This case was all about text: What role does the actual language of a statute play when Congress has passed it as part of a complex legislative scheme that, quite frankly, includes bad policy decisions? How much latitude does the government have to re-interpret statutory text in trying to change the policy? And where do courts draw the line between interpretation and distortion? This post will examine how Judge Griffith and Judge Edwards answer those questions.

Judge Griffith took what one might call a “textualist” approach, reasoning from the text and its meaning and rebutting the alternative interpretations. Judge Randolph’s concurring opinion agreed and made the sharper point that an exchange established by the federal government cannot possibly be an exchange established by the state, and that “to hold otherwise would be to engage in distortion, not interpretation.” Judge Edwards, as predicted, took the broadest interpretation of the ACA, relying on a broad understanding of the ACA’s purpose and policy, which he then used to trigger Chevron deference. (Somewhat oddly, Judge Edwards directs most of his fire at the appellants, not the majority opinion.)

Judge Griffith’s majority opinion recognized the relationship between the Constitution and the court’s duty to focus on the statutory text, noting that the Constitution “assigns the legislative power to Congress, and Congress alone, see U.S. Const. art. I, § 1, and legislating often entails compromises that courts must respect.” The only legal instrument that triggers the executive’s responsibility to execute it — a bill that passes both houses of Congress and is signed or acceded to by the president — is the statutory text. Because legally binding compromises can result in the passage of statutory text, the statutory text is the proper focal point for the courts.

Nevertheless, Judge Griffith pointed out what he called a “fork” in the D.C. Circuit’s precedent regarding legislative history. One of those forks includes the traditional rule that if the statutory text is unambiguous, there is no need to resort to legislative history. The other fork, from a case called Sierra Club v. EPA (D.C. Cir. 2008), commended legislative history “to shed new light on congressional intent, notwithstanding statutory language that appears superficially clear.” . . .

Categories: External Articles

D.C. Circuit Says Most Obamacare Subsidies Illegal


by Publius
Posted July 22, 2014, 9:58 AM

CNBC reports:

In a potentially crippling blow to Obamacare, a federal appeals court panel declared Tuesday that government subsidies worth billions of dollars that helped 4.7 million people buy insurance on HealthCare.gov are illegal.

A judicial panel in a 2-1 ruling said such subsidies can be granted only to those people who bought insurance in an Obamacare exchange run by an individual state or the District of Columbia — not on the federally run exchange HealthCare.gov.

"Section 36B plainly makes subsidies available in the Exchanges established by states," wrote Senior Circuit Judge Raymond Randolph in his majority opinion, where he was joined by Judge Thomas Griffith. "We reach this conclusion, frankly, with reluctance. At least until states that wish to can set up their own Exchanges, our ruling will likely have significant consequences both for millions of individuals receiving tax credits through federal Exchanges and for health insurance markets more broadly."

In his dissent, Judge Harry Edwards, who called the case a "not-so-veiled attempt to gut" Obamacare, wrote that the judgment of the majority "portends disastrous consequences."

Indeed, the decision threatens to unleash a cascade of effects that could seriously compromise Obamacare's goals of compelling people to get health insurance, and helping them afford it.

The Obama administration is certain to seek a reversal of the decision by the U.S. Court of Appeals for the District of Columbia Circuit, which does not immediately have the effect of law.

The ruling endorsed a controversial interpretation of the Affordable Care Act that argues that the HealthCare.gov subsidies are illegal because ACA does not explicitly empower a federal exchange to offer subsidized coverage, as it does in the case of state-created exchanges. Subsidies for more than 2 million people who bought coverage on state exchanges would not be affected by Tuesday's ruling if it is upheld.

HealthCare.gov serves residents of the 36 states that did not create their own health insurance marketplace. About 4.7 million people, or 86 percent of all HealthCare.gov enrollees, qualified for a subsidy to offset the cost of their coverage this year because they had low or moderate incomes.

If upheld, the ruling could lead many, if not most of those subsidized customers to abandon their health plans sold on HealthCare.gov because they no longer would find them affordable without the often-lucrative tax credits. And if that coverage then is not affordable for them as defined by the Obamacare law, those people will no longer be bound by the law's mandate to have health insurance by this year or pay a fine next year.

If there were to be a large exodus of subsidized customers from the HealthCare.gov plans, it would in turn likely lead to much higher premium rates for non-subsidized people who would remain in those plans, who are apt as a group to be in worse health than all original enrollees.

The ruling also threatens, in the same 36 states, to gut the Obamacare rule starting next year that all employers with 50 or more full-time workers offer affordable insurance to them or face fines. That's because the rule only kicks in if one of such an employers' workers buy subsidized covered on HealthCare.gov.

The decision by the three-judge panel in DC federal appeals circuit is the most serious challenge to the underpinnings of the Affordable Care Act since a challenge to that law's constitutionality was heard by US Supreme Court. The high court in 2012 upheld most of the ACA, including the mandate that most people must get insurance or pay a fine. . . .

Categories: External Articles

New Executive Orders on LBGT Discrimination Won’t Exempt Religious Orgs


by Publius
Posted July 21, 2014, 12:27 PM

According to Christianity Today:

An executive order President Obama signed Monday prohibiting sexual orientation discrimination in federal hiring does not exempt faith-based organizations.

The executive order amends a 1965 order prohibiting some forms of discrimination by federal contractors. The old text forbade contractors from discriminating "against any employee or applicant for employment because of race, color, religion, sex, or national origin." Obama's revision adds "sexual orientation" and "gender identity" between "sex" and "national origin."

The order accomplishes part of what legislators attempted to accomplish in passing the Employment Non-Discrimination Act (ENDA), a bill that passed the Senate earlier this session and now languishes in the House. While Obama will not include a new exemption for faith-based organizations, he will let stand a 2007 exemption memo from the federal attorney general's office. That memo says the Religious Freedom Restoration Act "is reasonably construed" to exempt World Vision (and other religious organizations that administer federal funds through social services programs) from religious nondiscrimination requirements on other federal grantees.

The World Vision memo will be helpful, though religious organizations would be better protected if the forthcoming executive order included a religious exemption, said Douglas Laycock, a professor of law and religious studies at the University of Virginia.

The ENDA currently before Congress would prohibit most employers in the country from sexual orientation-based discrimination but would exempt religious organizations and the military. Nearly every Congress for the past decade has dealt with a similar bill in some fashion, according to Human Rights Campaign, but so far none has passed into law. In 1998, President Bill Clinton signed a related and limited executive order prohibiting sexual orientation-based discrimination in some competitive services of the federal civilian workforce.

Obama announced the pending executive orders June 16. One prohibits discrimination by sexual orientation for federal contractors, and one protects federal employees from gender-identity discrimination, according to a transcript of a Pride Month celebration later that month.

Many of the federal contractors the first executive order targets are religious nonprofits such as World Vision, World Relief, and Catholic Charities. The executive order could pit the president's interest in antidiscrimination against religious organizations' rights to hire based on religious preference, which can include not hiring individuals in same-sex relationships.

At stake is a small but important move in one direction or another indicating how the government stacks sexual identity against religious rights, said David Skeel, professor of corporate law at the University of Pennsylvania.

"The Constitution places a very high emphasis on religion as an important value. The one value that's on the same level in the constitution at this point is racial equality," he said. "The question is: Are there other values that are comparable?"

Obama's language choice indicates which right—sexual identity or religious freedom—he holds more strongly, Skeel said.

"[Going] forward with anything other than an order with exemptions built into it suggests that, on balance, sexual orientation is his stronger concern," he said. . . .

Categories: External Articles

White House Not Worried About Ginsburg Retirement Chatter


by Publius
Posted July 21, 2014, 10:14 AM

The Hill reports:

The White House says it’s not worried about a possible retirement by Ruth Bader Ginsburg or any other Supreme Court justice.

Speculation on the high court’s next vacancy has centered on the 81-year-old Ginsburg, who has had health problems.

Some on the left have openly worried it could be tough for the Obama administration to fill a vacancy, especially if the GOP wins back the Senate this fall.

Republican senators are already irked with Senate Democrats’ unilateral decision to change the chamber’s filibuster rules so that all presidential nominees apart from the Supreme Court may be considered by majority vote. Until the rule change last year, nominations needed to clear procedural hurdles that require 60 votes.

But administration officials and those close to the White House say they're not particularly concerned about a Ginsburg retirement, before or after the midterm elections, or the likely difficult process to replace her.

And they are certainly not trying to apply any indirect pressure for Ginsburg to step down now, which would set up a nomination fight before the midterm elections.

While the officials conceded that they would not want to be caught unprepared by a decision by Ginsburg to step down, it's ultimately the justice's decision and one “that transcends politics,” one senior administration official put it. 

The administration also thinks GOP opposition to an Obama nomination to the Supreme Court could backfire on Republicans, one senior official said.

The official said it would be difficult for Republicans to explain a decision to hold up an Obama Supreme Court nomination, assuming there is a position to fill.

The official pointed to the confirmation of Justice Stephen Breyer, a nominee of President Clinton’s who was confirmed in 1994, months before Republicans won the House and Senate in a landslide.

Breyer’s nomination was approved in an 87-9 vote, with 33 Republican senators voting in support of Breyer.

Still, times have changed since 1994, and there’s reason for Democrats to worry that if Obama gets another chance to make a nomination to the high court, it will be more difficult.

Senate Republicans angered by the change to the filibuster have used procedural measures to slow the nominations of federal judges to a crawl.

Republicans have filibustered every district court nominee since the filibuster was changed, even though more than two-thirds of the judges were eventually confirmed with fewer than five no votes.

Obama nominees to the bench waited an average of 238 days from nomination to confirmation — longer than the 221 days a nominee waited on average before the filibuster reform. During President Bush’s time in offices, nominees waited an average of 171 days.

“The idea that a president’s Supreme Court nominee should be treated respectfully has been gone for three decades,” said Southern Methodist University political scientist Cal Jillson. “In this era of hyperpartisanship, and especially after the filibuster reform, Supreme Court nominees will have a rough ride.”

A former senior administration official predicted that even if Democrats do keep the Senate, the potential nomination will be a “huge time suck” for the administration because Republicans “will make it a time suck.” . . .

Categories: External Articles

Federal Judge Rules California Death Penalty Is Unconstitutional


by Publius
Posted July 16, 2014, 6:15 PM

According to the Los Angeles Times:

A federal judge in Orange County ruled Wednesday that California’s death penalty violates the U.S. Constitution’s ban on cruel and unusual punishment.

U.S. District Judge Cormac J. Carney, ruled on a petition by death row inmate Ernest Dewayne Jones, who was sentenced to die nearly two decades ago.

Carney said the state’s death penalty has created long delays and uncertainty for inmates, most of whom will never be executed.

He noted that more than 900 people have been sentenced to death in California since 1978 but only 13 have been executed.

“For the rest, the dysfunctional administration of California’s death penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay preceding their actual execution,” Carney wrote.

Carney’s ruling can be appealed to the U.S. 9th Circuit Court of  Appeals.

Carney, an appointee of former President George W. Bush, said the delays have created a “system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed,” Carney said.

In overturning Jones’ death sentence,  Carney noted that the inmate faced “complete uncertainty as to when, or even whether" he will be executed. . . .

Categories: External Articles

Suit Alleging Anti-Conservative Discrimination at Univ. Iowa Law School Will Go Back to Court


Posted July 16, 2014, 8:16 AM

The Gazette newspaper of Iowa reports:

A University of Iowa College of Law employee who sued the school’s leaders for political discrimination will get a new trial.

The 8th Circuit Court of Appeals on Tuesday sent Teresa Wagner’s lawsuit back to the U.S. District Court for the Southern District of Iowa, which the Court of Appeals said “abused its discretion” in denying Wagner’s motion for a new trial when a jury deadlocked in October 2012.

Wagner claims in her lawsuit the law school dean and former dean improperly passed over Wagner for jobs because of her conservative views.

Jurors in 2012 returned a mixed verdict, finding Wagner didn’t face discrimination under the First Amendment, but deadlocked on whether her constitutional rights to equal protection were violated. A magistrate initially declared mistrials on both counts, but later, outside the presence of Wagner or her attorney, polled the jurors and found they reached a verdict on one count, according to the Court of Appeals decision.

“Today, we hold, in a case such as the present one, where a court declares a mistrial and discharges the jury which then disperses from the confines of the courtroom, the jury can no longer render, reconsider, amend, or clarify a verdict on the mistried counts,” the Court of Appeals wrote.

The court also questioned whether the District Court embraced earlier guidance about informing the jury about the shifting burden of proof in the case.

The Court of Appeals reversed the District Court’s order denying Wagner a new trial on the First Amendment charge, vacated the judgment and remanded it for a new trial.

Wagner’s attorney proposed a settlement with the UI last year that would have made Wagner a full time legal writing instructor and given her $400,000. The Iowa Attorney General’s Office, representing UI administrators, declined the offer. Wagner is on staff with the UI College of Law Writing Center.

Categories: External Articles

Court Tosses Two Convictions Against Former Bin Laden Aide


by Publius
Posted July 15, 2014, 10:47 AM

The Los Angeles Times reports:

A federal appeals court struck down two terrorism-related convictions Monday against Osama bin Laden's former press secretary and propagandist, Ali Hamza Bahlul, but upheld a third for conspiracy.

The decision had the potential to be a landmark on handling prisoners at the Guantanamo Bay detention facility. But the ruling was so splintered — with five opinions adding up to 150 pages among seven judges — that the impact was muddled, legal scholars said.

The U.S. Court of Appeals for the District of Columbia Circuit did make it clear for the first time, in an opinion by Judge Karen L. Henderson, that two legal tools commonly used against Al Qaeda prisoners — charges of material support for terrorism and conspiracy to commit terrorism — could not be applied if the alleged violations took place before passage of a 2006 law establishing military commissions to prosecute defendants for such crimes.

The Constitution's protections against being charged after the fact must be extended to Guantanamo prisoners even though they are not U.S. citizens, the court said. As a result, the law cannot be applied retroactively to punish actions that were not yet covered by the 2006 law, judges said.

The court was particularly bedeviled by a third charge — conspiracy to commit terrorism — on which Bahlul was previously convicted. It upheld the conspiracy charge primarily because it concluded that Bahlul had forfeited his right to appeal for refusing to mount a defense during the original proceeding. Bahlul was convicted of all three charges by a military commission and sentenced to life in prison. . . .

Categories: External Articles

Is Evangelical Morality Still Acceptable in America?


by Publius
Posted July 14, 2014, 10:33 AM

Alan Nobel comments in the Atlantic:

Is evangelical Christian morality still viable in American public life? This is the question lurking in recent debates over religious-liberty issues, from the Supreme Court’s Hobby Lobby decision to the Christian bakers who object to baking cakes for gay weddings. In discussions of these cases, objections to same-sex marriage and contraception are described as a retreat from “secular society.” And in some cases, evangelicals actually have retreated: Since the Boy Scouts of America decided to allow openly gay Scouts to participate, a “Christian” alternative has been created, giving Christian parents a "safe" space where they can send their kids. But these incidences of retreat have actually been rare. Ultimately, the idea that evangelical Christian morality is incompatible with modern life isn’t sustainable.

In The Atlantic, Jonathan Rauch argued that if the evangelical church is to last long into the twenty-first century, certain parts of its moral codes have to change—American society is progressing, and if the church won't progress with her, then it will be abandoned.

This is based on a popular conception about evangelicals: that they’re toxic. The refusal to serve gay weddings is called bigotry. Laws written to protect businesses that refuse to provide such services are compared to Jim Crow laws. Hobby Lobby's unwillingness to pay for certain contraceptives is derided as misogynistic.

Behind all of these charges is the suspicion that evangelicals are simply refusing to accept contemporary American mores; they are privileging their faith over the moral spirit of the age. But for many evangelicals, these beliefs are not actually a sign of retreat from public life. Instead, there is a fear that in an increasingly secularized society, there will be less tolerance for people who wish to act upon their deeply held religious beliefs, except in narrowly defined, privatized spaces. This is a fundamentally American concern: Will I have the right to serve God as I believe I am obligated to?

This fear isn’t just personal. As laws on issues like same-sex marriage and contraception have changed, there’s a growing fear that public policy will become more and more in conflict with evangelical morality. This, according to many conservative Christians, is what these tensions are about: being legally required to perform acts that you sincerely and deeply believe are immoral. Although in the past the religious right has openly advocated legislating morality in the public sphere, for most evangelicals, the recent cases do not seem to be about policing other people's morality—the concern is about preserving the ability to be faithful to one's own morality. By paying to cover contraceptives that interfere with “conception,” as evangelicals define it, by baking a cake or taking photographs to celebrate a same-sex wedding, some Christians believe they are facilitating a profoundly immoral act—which makes them morally culpable, as well.

To a large extent, this tension has been caused by a shift in what we think of as the domain of morality. . . .


Law Schools Peer Into the Abyss But the American Bar Association Blocks Serious Change


by Publius
Posted July 11, 2014, 1:38 PM

George Leef comments for Forbes:

Not so long ago, law school was a growth industry, with new schools being created and enrollments going ever higher. No more. There has been a dramatic turn-around over the last ten years.

Enrollments of first-year students are back where they were 40 years ago. According to the Law School Admissions Council, in 2004, more than 100,000 students applied for law school, but in 2013, just 59,000 did. Some law schools have had to lay off faculty members and administrators. Four independent law schools have recently had their bonds downgraded to “junk” status by Moody’s and Standard & Poor’s, reflecting their questionable finances.

Officials at the Thomas B. Cooley law school have decided to cancel the entire incoming class for this fall at its Ann Arbor campus.

Some law schools have significantly cut tuition. That has helped to stop their enrollment slide, but this may be one of those “rearranging the deck chairs on the Titanic” phenomena, since students lured into Law School A with a discount are lost to Law Schools B through Z.

The weakest won’t survive even though the federal government has helped to keep law school enrollments from falling even more. As a Wall Street Journal editorial noted recently, the “Pay As You Earn” program that was expanded in 2011, “has been a slow-motion bailout for law schools.” Students who graduate with heavy debts will be able to escape from paying much of it back provided that they go to work for government or for a “public interest” law firm.

That article led law professor Glenn Harlan Reynolds to suggest on his Instapundit blog (April 24):

Next scam: Law schools start “nonprofit” law firms that hire their own graduates, thus boosting their U.S. News rankings by ensuring their grads have jobs while letting their students get out from under debt in half the time. Plus, faculty can have high-paying side jobs managing things at the “nonprofit.”

Could there, however, be a silver lining in the law school decline? In a recent Chronicle of Higher Education piece, “As Law Schools Struggle, Diversity Offers Opportunities” St. Louis University law professor Aaron Taylor argued that there is.

Taylor notes that the fall in law school applications has been the greatest among whites and Asians; that is good, he contends, because it will help redress the problem (as he sees it) that “blacks and Hispanics are woefully underrepresented” in the legal profession.

While those groups comprise roughly 30 percent of the population, they account for only 8.5 percent of America’s lawyers. Like so many others who believe that statistical gaps between groups should be closed or eliminated by social engineering, Taylor wants law schools to close the “gap” in lawyers.

With white and Asian students steering clear of the legal profession, you have to wonder if it would really be beneficial to lure more minority students into law school now, but let’s look at Taylor’s proposal. . . .

Categories: External Articles

Rajaratnam Acquittal Shows Indirect Insider Trading Case Challenge


by Publius
Posted July 11, 2014, 10:11 AM

According to Reuters:

The acquittal on Tuesday of the younger brother of convicted hedge fund titan Raj Rajaratnam suggests prosecutors will have a tougher time pursuing people accused of trading on inside information they received indirectly.

Roughly a third of the insider trader defendants charged by Manhattan U.S. Attorney Preet Bharara since 2009 are alleged so-called "remote tippees". According to prosecutors, in such cases the defendant, or "tippee," never directly talks to the insider, instead getting information from an intermediary.

After the case of former Galleon Group fund manager Rengan Rajaratnam, prosecutors may reevaluate how they build similar cases, said James Cox, a law professor at Duke University.

Prosecutors said Rengan Rajaratnam, a fund manager at his brother's Galleon, engaged in insider trading, receiving tips from Raj Rajaratnam who was speaking to insiders on two deals.

But jurors and the judge acquitted the younger brother, ending an 81 conviction streak by Bharara's office that included Raj Rajaratnam's own guilty verdict in 2011.

"This case probably just didn't have enough of the i's dotted and t's crossed to make the connections," Cox said.

Of the 88 people charged over insider trading by Bharara since 2009, 31 were at least one step removed from the initial tipper, including at least three of the office's six outstanding cases, according to Reuters' analysis.


The burden of proof required to convict remote tippees has gained attention recently thanks to an appeal in a separate case involving Todd Newman, a former Diamondback Capital Management portfolio manager, and Anthony Chiasson, co-founder of Level Global Investors, who were convicted in 2012 of insider trading despite not being in contact with the insiders.

On appeal, they argued to the 2nd U.S. Circuit Court of Appeals in April that U.S. District Judge Richard Sullivan should have required that jurors find the defendants knew the insider benefited from disclosing information.

No decision has been issued. . . .

Categories: External Articles

New Post-Decision SCOTUScast: Scialabba v. Cuellar de Osorio


by SCOTUScaster
Posted July 10, 2014, 1:40 PM

On June 9, 2014, the Supreme Court issued its decision in Scialabba v. Cuellar de Osorio (formerly Mayorkas v. Cuellar de Osorio). This case involved two questions: (1) Whether Section 1153(h)(3) of the Immigration and Nationality Act– which provides rules for determining whether particular aliens qualify as “children” so that they can obtain visas or adjustments of their immigration status as derivative beneficiaries of sponsored family member immigrants (also known as “primary beneficiaries”) – unambiguously grants relief to all aliens who qualify as “child” derivative beneficiaries at the time a visa petition is filed but age out of qualification by the time the visa becomes available to the primary beneficiary; and (2) whether the Board of Immigration Appeals (BIA) reasonably interpreted Section 1153(h)(3).

Although the District Court deferred to the BIA’s determination that only those petitions that can be seamlessly converted from one family preference category to another without the need for a new sponsor are entitled to conversion under §1153(h)(3), the en banc Ninth Circuit reversed, holding that the provision unambiguously entitled all aged-out derivative beneficiaries to automatic conversion and priority date retention.

By a fractured vote of 5-4, the Supreme Court reversed the Ninth Circuit. Justice Kagan announced the judgment of the Court and delivered an opinion joined by Justices Kennedy and Breyer, concluding that the BIA’s textually reasonable construction of §1153(h)(3)’s ambiguous language was entitled to deference. The Chief Justice, joined by Justice Scalia, agreed that the BIA’s interpretation was reasonable, but not because an agency has authority to resolve direct conflicts within a statute. The BIA’s reasonable interpretation of §1153(h)(3) was simply consistent with the ordinary meaning of the statutory terms, with the established meaning of automatic conversion in immigration law, and with the structure of the family-based immigration system. Justice Alito dissented. Justice Sotomayor dissented joined by Justice Breyer in full and Justice Thomas except as to footnote 3.

To discuss the case, we have Margaret Stock, who is an attorney with the Anchorage office of Cascadia Cross Border Law.

Click here to view this article on the source site »

Categories: SCOTUScasts

U.S. District Judge Richard Kopf Under Fire for Blog Post Lambasting SCOTUS Hobby Lobby Decision


by Publius
Posted July 10, 2014, 8:01 AM

The Los Angeles Times reports:

A federal judge turned part-time blogger who garnered unwanted national attention this week after using a profane expression to tell the Supreme Court to, effectively, "shut up" has decided to take his own advice and shut up for a while.

"Blogging will be light while I figure this out," U.S. District Judge Richard G. Kopf of Nebraska said this week after coming under fire from fellow jurists and legal experts for writing a blistering criticism of the high court's recent ruling in the Hobby Lobby case.

Kopf told readers Monday that he was prompted to curtail his Internet musings by a note from a lawyer he held in the highest respect who explained to him that people "expect judges not to be publicly profane, lewd or disrespectful."

The Hobby Lobby decision, which gave religious business owners the right to refuse to provide contraceptive coverage for female employees, had many critics. Kopf's July 5 blog post focused on how the court's five male, Catholic, Republican-appointed justices handed down a ruling that "looks stupid and smells worse. To most people, the decision looks stupid 'cause corporations are not persons, all the legal mumbo jumbo notwithstanding."

He ended with a bit of advice to the justices: "As the kids say, it is time for the Court to STFU," he said, providing a link to a definition of the four-word phrase.

Last year, Kopf, an appointee of President George H.W. Bush, took senior status with a reduced case load and started his own blog, "Hercules and the Umpire," with the aim of describing the job of a federal trial judge.

The Hobby Lobby posting was not the only one that raised eyebrows. He got into trouble earlier this year with an overly candid account of a day in court, describing "a very pretty female lawyer who … wears very short skirts and shows lots of her ample chest. I especially appreciate the last two attributes." He added that he has been "a dirty old man" for most of his life.

A few readers praised Kopf's candor for standing up to the Supreme Court, but others said he should resign or be impeached. . . .

Categories: External Articles

Richard Epstein on the Hobby Lobby Decision


by Publius
Posted July 09, 2014, 8:44 AM

Richard Epstein comments at Defining ideas:

On June 30, a bitterly divided Supreme Court invoked the Religious Freedom Restoration Act (RFRA) to strike down the regulations of the Department of Health and Human Services (HHS) that imposed a contraceptive mandate on some employers covered by the Affordable Care Act. The ACA requires covered employers to supply “preventive care and screenings” to women “without any cost sharing requirements.” But it leaves its implementation to the HHS, which did not have to extend it to contraceptive devices or abortion procedures.

HHS took an aggressive stance about the scope of its powers. To be sure, under pressure, HHS exempted churches entirely from the mandate. For other religiously-oriented businesses and associations, including religious hospitals and universities, it only required that their healthcare insurer supply the needed coverage without charging back any of its costs to the protected institutions. But incorporated family-owned businesses like Hobby Lobby received no reprieve from the ACA to act in accordance with their Christian beliefs. In order to avoid paying, as it had always done, for four forms of contraception that could interfere with embryonic development after conception, Hobby Lobby faced this choice: either cancel all coverage or pay large fines. . . .

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