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Supreme Court

Medical roundup

by Walter Olson on January 28, 2015

  • King v. Burwell: next ObamaCare showdown at Supreme Court [Ilya Shapiro and Josh Blackman, David Bernstein on Cato brief, Adler v. Bagley Federalist video, Michael Greve with theory of Justice Kennedy riding off to Colorado with Dagny, earlier]
  • “J&J says women being illegally solicited to join in mesh lawsuits” [Jessica Dye/Reuters, same on lawyers' response, more on which]
  • Invoking ACA, feds regulate non-profit hospitals to require periodic community needs assessment, limit collection methods [Treasury]
  • Unless judges are vigilant, lawyers will take advantage of mass tort joinder to evade CAFA limits on forum-shopping [Steven Boranian, Drug & Device Law]
  • Popular literature on IRBs/consent of research subjects can employ dubious definitions of “coercion” [Simon Whitney via Zachary Schrag]
  • Qui tam lawyers vs. pharmaceutical companies, some empirical findings [Bill of Health]
  • So that’s what “anatomical theatre” means: researcher checks into ostensible open-source medical journals and finds many “had suspicious addresses; one was actually inside a strip club.” [Fast Company on report finding that fake paper was accepted for publication by 17 journals]
  • A student of David Henderson’s recalls the state of medicine under the Soviets: assignment to providers based on place of residence; the role of gifts, favors, and clout; how idealistic doctors became cynics; the black market as a safety valve. [EconLog]

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  • Should a sock used to hold pills count as “drug paraphernalia?” [NPR via Jeffrey Miron on Supreme Court case]
  • Michael Greve: on Medicaid spending-forcing suits, behold the Obama administration taking the correct stance, U.S. Chamber the wrong [Liberty and Law, more]
  • No, the justices don’t just use religious freedom cases to advance their own beliefs [Eugene Volokh]
  • Can/should the courts correct misconduct by the EEOC in dealings with employers during the “conciliation” phase before litigation? [Robert Barnes/Washington Post, Julie Goldscheid/SCOTUSBlog, Michael Greve on oral argument in Mach Mining v. EEOC]
  • Decision in Dart Cherokee case rejects presumption against removal of class actions [Richard Samp and M.C. Sungaila, WLF]
  • When if ever may the President properly sign legislation he believes to be in part unconstitutional? [Will Baude]
  • Most Justices have had little practical exposure to criminal law which can leave it a blind spot for them [Radley Balko]

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Free speech roundup

by Walter Olson on January 22, 2015

  • Pennsylvania has passed that grotesque new law seeking to muzzle convicts from discussing crimes when “mental anguish” to victims could result. Time for courts to strike it down [Radley Balko, earlier]
  • “First Amendment challenge to broad gag order on family court litigants” [Eugene Volokh]
  • Federally funded Indiana U. program to monitor political opinion on Twitter didn’t much like being monitored itself by critics [Free Beacon, earlier (project "intensely if covertly political")]
  • Holocaust denial laws abridge the freedom of speech. Do they even accomplish their own aims? [Sam Schulman, Weekly Standard]
  • Is it defamatory to call someone a “censorious a**hat”? [Adam Steinbaugh, Eric Turkewitz, earlier on Roca Labs case]
  • We should take up a collection to translate Voltaire into French [Reason, Huffington Post on Dieudonne case, yesterday on talk of "Fox maligned Paris" suit]
  • Some would-be speech suppressers upset over Citizens United ruling also quite happy to drown out Justices’ speech [Mark Walsh, SCOTUSBlog] “Campaign finance censors lose debate to Reddit” [Trevor Burrus] Citizens United “probably the most misunderstood case in modern legal history.” [Ilya Shapiro]

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Last year I wrote a piece for Jurist on the Wartime Suspension of Limitations Act (WSLA). Now the False Claims Act case of Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter is before the Supreme Court, which heard oral argument on Tuesday. [transcript; Ronald Mann/SCOTUSBlog; WSJ editorial; Courthouse News; earlier here and here]

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Supreme Court roundup

by Walter Olson on January 15, 2015

  • Perez v. Mortgage Bankers: can agency escape notice-and-comment requirements for new rulemaking by couching edict as other than a rule? [The Hill]
  • Contrary to imaginings in some quarters, anti-business side doesn’t lack for access to front-rank Supreme Court advocates [Tom Goldstein, SCOTUSBlog]
  • Speaking of which, Alison Frankel’s profile of Prof. Samuel Issacharoff’s work on behalf of class actions illuminates little-seen world of cert practice [Reuters]
  • After two near misses, it’s time for Justices to turn thumbs down on housing disparate impact theory [Ilya Shapiro and Gabriel Latner, Cato]
  • Integrity Staffing v. Busk: Court unanimously rules Fair Labor Standards Act does not require overtime pay for security screening after work [SCOTUSBlog, Michael Fox, On Labor, Daniel Fisher, Dan Schwartz]
  • “Religious Liberties for Corporations? Hobby Lobby, the Affordable Care Act, and the Constitution” [Cato panel discussion with Roger Pilon, Ilya Shapiro, Randy Barnett, David Gans]
  • Some local governments presume to license local tour guides, which amounts to requiring a license to speak [Shapiro and Latner, Cato]
  • More: 1997 flap over sculpture of Muhammad in Supreme Court building mostly subsided after Islamic scholar interpreted it as gesture of goodwill [Jacob Gershman, WSJ Law Blog]

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Young v. United Parcel Service, in the Supreme Court, which has been built up as a cause celebre, turns on whether the courts should feel free to re-interpret a 1978 federal law, the Pregnancy Discrimination Act, so as to include evolving ideas of a right to accommodation akin to the ADA. The alternative position is that if such a right to accommodation is now thought to be a good idea, advocates should get Congress to enact it into law explicitly. [Lyle Denniston and related SCOTUSBlog, USA Today, Bloomberg/Pittsburgh Post-Gazette with auto-play, The Economist]

Next Monday, Nov. 24, Cato will host a luncheon panel on the 1956 Supreme Court case of One, Inc., v. Olesen, a little case with big implications that reverberate to this day. Panelists include attorneys Lisa Linsky (McDermott Will & Emery) and Robert Corn-Revere (Davis Wright Tremaine) and author/Brookings fellow Jonathan Rauch, and I’ll be moderating. From the description:

Sixty years ago the U.S. Supreme Court’s first case on gay rights was set in motion. It has been neglected through many of the intervening years but is now recognized as a landmark in the law of free speech. In One, Inc., v. Olesen, a fledgling Los Angeles–based magazine seeking to advance the interests of homosexuals sued after the Post Office declared it obscene and banned its distribution through the mail. Against long odds, facing the full force of the federal government, and with little support from the civil libertarians of the day, the small publication persevered to the Supreme Court—and its unexpected victory there opened up legal space for other dissenting and unpopular opinions to thrive. Join us as three experts discuss the One, Inc. case as a turning point in First Amendment law and an example of how freedom of expression works to vindicate the interests of those on society’s margins. We’ll also learn about ongoing efforts to get the U.S. government to open its archives to shed light on its handling of the case.

Register free or watch online at this link.

[cross-posted from Cato at Liberty and expanded with a P.S.]

Even by his standards, Paul Krugman uses remarkably ugly and truculent language in challenging the good faith of those who take a view opposed to his on the case of King v. Burwell, just granted certiorari by the Supreme Court following a split among lower courts. Krugman claims that federal judges who rule against his own position on the case are “corrupt, willing to pervert the law to serve political masters.” Yes, that’s really what he writes – you can read it here.

A round of commentary on legal blogs this morning sheds light on whether Krugman knows what he’s talking about.

“Once upon a time,” Krugman claims, “this lawsuit would have been literally laughed out of court.” [Citation needed, as one commenter put it] The closest Krugman comes to acknowledging that a plain-language reading of the statute runs against him is in the following:

But if you look at the specific language authorizing those subsidies, it could be taken — by an incredibly hostile reader — to say that they’re available only to Americans using state-run exchanges, not to those using the federal exchanges.

New York City lawyer and legal blogger Scott Greenfield responds:

If by “incredibly hostile reader,” Krugman means someone with a basic familiarity with the English language, then he’s right.  That’s what the law says. … There is such a thing as a “scrivener’s error,” that the guy who wrote it down made a mistake, left out a word or put in the wrong punctuation, and that the error was not substantive even though it has a disproportionate impact on meaning.  A typo is such an error.  I know typos. This was not a typo. This was not a word misspelled because the scribe erred.  This was a structural error in the law enacted. Should it be corrected? Of course, but that’s a matter for Congress.

While some ObamaCare proponents may now portray the provision as a mere slip in need of correction, as I noted at Overlawyered in July, “ObamaCare architect Jonathan Gruber had delivered remarks on multiple 2012 occasions suggesting that the lack of subsidies for federally sponsored exchanges served the function (as critics had contended it did) of politically punishing states that refuse to set up exchanges.”

Josh Blackman, meanwhile, points out something incidental yet revealing about Krugman’s column: its homespun introductory anecdote about how his parents discovered that they had been stuck with a mistaken deed to their property, fixed (“of course”) by the town clerk presumably with a few pen strokes and a smile, couldn’t possibly have happened the way Krugman said it did. Property law, much more so than statutory construction, is super-strict about these matters.

If your deed is incorrect, you cannot simply get the “town clerk” to “fix the language”. … Mistakes are enforced by courts. That’s why [everyone] should purchase title insurance. …

So this is the exact opposite example of what Krugman would want to use to illustrate why King is “frivolous.” If courts applied property doctrine to the construction of statutes, this case would be over in 5 seconds. The government loses.

To be sure, there may be better arguments with which to defend the Obama administration’s side of the King case. But do not look for them in Paul Krugman’s commentary, which instead seems almost designed to serve the function of pre-gaming a possible defeat in King by casting the federal judiciary itself as “corrupt” and illegitimate.

P.S. “Krugman’s column in today’s NYT on King is the liberal equivalent of a Rush Limbaugh tirade.” [Gerard Magliocca] Krugman not notably consistent on views of statutory interpretation [Simon Lester] ObamaCare architect Jonathan Gruber caught on camera saying “lack of transparency” key to passing the bill; he “may believe that American voters are stupid, but he was the one dumb enough to say all this on camera” [Peter Suderman, Mickey Kaus ("I am big. It's the electorate that got small.")] How to argue the administration side in a less unhinged way than Krugman does [David Ziff via Jonathan Adler]

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The Supreme Court hears oral argument in the Yates v. U.S. case [WLF, ABA Journal, Daniel Fisher, earlier] Best line from a brief, via @ToddRuger: “More specifically, a false entry cannot be made in a fish.”

P.S. Radley Balko points out that while Congress has filled the U.S. Code with strict penalties for destruction of potentially relevant evidence, federal officials themselves almost never face real consequences when they destroy such evidence.

Supreme Court roundup

by Walter Olson on October 14, 2014

  • Sorry, National Review, but the marriage rulings are really nothing at all like Dred Scott [my new piece at The Daily Beast] Or Roe v. Wade either [Dale Carpenter, Ilya Shapiro, Charles Lane]
  • Ninth Circuit won’t get the message about not expropriating raisin farmers and it’s time for the Court to remind it again [also Ilya Shapiro, earlier]
  • Private businesses, even those that are quasi-public like Amtrak, shouldn’t be delegated the right to regulate their competitors [Ilya Shapiro yet a third time]
  • “Supreme Court takes case on duration of traffic stops” [Orin Kerr, Rodriguez v. United States]
  • Housing disparate impact theory, dodged by administration last time around, returns to Court [Bloomberg, Daniel Fisher; Texas Department of Housing and Community Affairs v. The Inclusive Communities Project; earlier]
  • Noteworthy feature of just-argued wage-and-hour case is that Obama Department of Labor is taking the employer side [Denniston, SCOTUSBlog; Integrity Staffing Solutions v. Busk]
  • “Supreme Court to hear case on right of Maryland to tax out-of-state income” [Ashley Westerman, Capital News Service]
  • Mark your calendar if in D.C.: I’ll be moderating a Nov. 3 talk at Cato by Damon Root about his new book Overruled: The Long War for Control of the U.S. Supreme Court, with commentary from Roger Pilon and Jeffrey Rosen [Reason]

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New Supreme Court term

by Walter Olson on October 6, 2014

Ilya Shapiro, Roger Parloff, Daniel Fisher, and Damon Root preview what’s on the docket.

Last week Cato held its annual Constitution Day celebrating the publication of the new 2013-14 Cato Supreme Court Review, with articles from such contributors as Roger Pilon, David Bernstein, Eric Rassbach, Andrew Pincus, Richard Epstein, and P.J. O’Rourke. They discuss most of the big and a few of the not-so-big cases of the past term, including Hobby Lobby, Canning, Schuette, Bond, McCutcheon, and Harris v. Quinn. The panel above (also available as video and podcast download) looks forward to the upcoming October term; it’s moderated by the review’s editor, Ilya Shapiro, with panelists Michael Carvin, Tom Goldstein, and Richard Wolf. The review concludes with an essay on the same general subject by Miguel Estrada and Ashley Boizelle.

This year, the contents of the review are available for immediate download (although we also encourage buying hard copies, of course.) As I’ve said while singing its praises before, it’s distinguished from conventional law reviews not only by its Madisonian point of view, and by its extreme speediness (published only three or so months after the conclusion of the Court’s last term) but also by its unusual readability and style, pitched to intelligent readers whether or not they are specialists in the law.

Much more than Citizens United

by Walter Olson on September 11, 2014

This week forty-eight senators are seeking to amend the Bill of Rights so as to give the government more power to control campaign speech. While some advocates pretend that the effect of the amendment would “only” be to overturn the Supreme Court’s decision in Citizens United, it would actually go a good bit farther than that. [Jacob Sullum, Reason; George Will; Trevor Burrus at Forbes ("political stunt," yet "terrifying"); related, David Boaz]

Concur: ACLU. Update: measure fails.

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Whichever way you come down on the sidewalk-buffer-zone series of cases, it’s time to retire the wheeze about how the U.S. Supreme Court is supposedly being inconsistent by not inviting protesters up really close to its entrance doors — though the taunt does conceal something of a genuine point about how smaller, poorer organizations are more likely to have to put up with the annoyances and inconveniences of public space and its concomitant public forum doctrine, as they also do when the forums involved are public parks or schools [Eugene Volokh, earlier]

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“Recent opinions have cited ‘facts’ from amicus briefs that were backed up by blog posts, emails or nothing at all.” [Adam Liptak, New York Times, Allison Orr Larsen/SSRN]

More: Jonathan Adler (unhappy role of “Brandeis briefs”).

Making hash of Halbig

by Walter Olson on August 25, 2014

We live in a golden age of Supreme Court coverage, and then there’s Linda Greenhouse [David Henderson on Michael Cannon]

P.S. Likewise on the Canning decision [Nicholas Quinn Rosenkranz]

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In the upcoming case of Yates v. United States, the Supreme Court will decide whether a fisherman can be prosecuted under Sarbanes-Oxley’s prohibition on destroying or concealing “any record, document, or tangible object” to impede an investigation. The records, documents, or tangible objects in question were undersized fish, which Mr. Yates threw overboard instead of bringing back to the dock as instructed by inspectors. Cato has filed an amicus brief urging the Court to rule that Mr. Yates was not adequately put on notice of the reach of “tangible object” to include not just business items such as hard drives, but small marine creatures, lest the law “potentially criminalize an unfathomable range of activities.” [Trevor Burrus, earlier]

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