A lawyer representing a fan has sued the National Football League for allegedly breaking New Jersey state law by making just 1 percent of Super Bowl tickets available to the general public at face value. A section of the state’s Consumer Fraud Act reads, “It shall be an unlawful practice for a person, who has access to tickets to an event prior to the tickets’ release for sale to the general public, to withhold those tickets from sale to the general public in an amount exceeding 5% of all available seating for the event.” (But does “person [with] access” refer to the original event organizers, or only to middlemen who acquire tickets for resale?) The lawsuit “says it’s on behalf of all ticket buyers who have paid more than face amount for their tickets, along with anybody who couldn’t afford to buy tickets in an exorbitant secondary market, but who still wanted them.” [NJ.com] More: the NFL made me do it! [Abnormal Use]
Banking and finance roundup
- Still money left in that piggy bank: Justice Department shakes $1.7 billion out of J.P. Morgan because its custody wing kept handling a primary Bernie Madoff account while a distant equity desk grew suspicious of him, in what “looks a bit like a tax on bigness and integration” [Matt Levine, Bloomberg; NPR].
- Legacy of TARP one of cronyism and lawlessness [Mark Calabria, USA Today]
- NYT assails a couple of academics as mouthpieces for Wall Street, Felix Salmon has a bit to say about that [Reuters, EconBrowser, Bainbridge, Pirrong] Daniel Fisher on a possible tie-in with Times reporter David Kocieniewski’s earlier piece flaying Goldman Sachs over aluminum warehousing [Forbes]
- “Court Receptive to Overturning SEC’s Conflict Minerals Disclosure Rule” [Fed Soc Blog]
- “Target Breach — Are Dodd-Frank ‘Swipe Fee’ Price Controls to Blame?” [John Berlau, CEI “Open Market”] “Volcker Rule Overshoots Wall Street to Hit Utah” [same]
- “CFPB and Disparate Impact” [Hester Peirce, Point of Law]
- “It might cost you $39K to crowdfund $100K under the SEC’s new rules” [Sherwood Neiss, VentureBeat via @jerrybrito]
- Here’s a novel proposal for corporate governance: use the rules agreed upon by the original parties to the transaction [Hodak]
How could lawprofs have gotten the ACA case so wrong?
Again and again, as legal challenges to ObamaCare made their way forward, leading law professors dismissed as frivolous or inconsequential arguments that wound up convincing many or most Justices on the Supreme Court. David Hyman via Stephen Bainbridge:
Almost without exception, law professors dismissed the possibility that PPACA might be unconstitutional — but something went wrong on the way to the courthouse. What explains the epic failure of law professors to accurately predict how Article III judges would handle the case? After considering three possible defenses/justifications, this essay identifies five factors that help explain the erroneous predictions of our nation’s elite law professors, who were badly wrong,
but never in doubt.
Related: NYU Prof. Jonathan Haidt, who has written powerfully about the lack of ideological diversity in academia, has this page of resources on the subject. And don’t forget my book Schools for Misrule.
More: Nick Rosenkranz at Volokh back in April.
The march of international human rights
London real estate values have soared, and a furor has broken out on the Left over one large landlord’s announcement that it no longer welcomes government-assisted tenants (related story on U.S. Section 8). According to at least one professor of law, international human rights treaties require the United Kingdom to take affordable housing steps [Aoife Nolan, HuffPo U.K.] Good to be aware of these things before we start ratifying any more of them…
Environmental roundup
- “A Milestone to Celebrate: I Have Closed All My Businesses in Ventura County, California” [Coyote, earlier]
- “Louisiana Judge Ends Katrina Flooding Lawsuits Against Feds” [AP/Insurance Journal]
- “Some shoppers who reuse plastic bags to dispose of animal waste will miss them” [L.A. Times via Alkon]
- Alameda County, Calif. conscripts out-of-state drugmakers into product disposal program: public choice problem, constitutionality problem or both? [Glenn Lammi, WLF]
- “Connecticut, Drunk on Power, Uses Bottle Bill to Steal Money” [Ilya Shapiro]
- “If successful, the New York lawsuits would extend the scope of the [habeas corpus] writ to an undefined array of nonhuman creatures.” [Jim Huffman, Daily Caller]
- Clean Water Act citizen suits never intended to be race to courthouse between officialdom, bounty hunters [Lammi, WLF on Eleventh Circuit ruling]
- Let’s stop measuring congestion, it just makes our environmental plans look bad [Randal O’Toole, David Henderson on California policy]
Suing over a study
I’ve got a short piece in the January Reason on the story (covered earlier here and here) of the lawyer who decided to sue a scientific journal publisher and the authors of a clinical report because the findings in the article made it harder for him to win personal injury lawsuits.
Fifty years ago today…
…the U.S. Supreme Court heard argument in what was to become one of its most celebrated tort reform decisions. A profitable national manufacturer had been sued in a distant rural state in which it was decidedly unpopular, resulting in a runaway jury verdict which it sought to challenge on appeal. Pointing out the disadvantages of unpredictable and locally variable tort standards, the corporation’s lawyers pushed for a more uniform and modern standard of liability suited to a nationwide market, which the high court agreed unanimously to develop for the occasion and impose on state courts. And ever since 1964, the winning party in the case — that is to say, the New York Times Company — has taken a sympathetic editorial interest in the plight of other national businesses subjected to runaway verdicts in local courts.
Well, OK, maybe not that last sentence. But the rest of it did happen, in the celebrated case of New York Times v. Sullivan.
Labor and employment law roundup
- On minimum wage, 1987-vintage Times beats undrinkable current Times (via @davidharsanyi) How we wish the law of demand would somehow suspend operation [The Economist, Todd Eberly]
- L.A.: four restaurant workers awarded $5.7M in age bias lawsuit [LADN]
- Highly menacing NLRB “persuader” regulations not dead [Labor Union Report] In D.L. Horton case, Fifth Circuit rejects NLRB position that pre-dispute arbitration waiving class/collective rights violates labor law [Jon Hyman, Gerald Maatman/Lily Strumwasser, WLF]
- “How Much Does It Cost To Make A Wage And Hour Case Go Away?” [Laura Reasons, Seyfarth] Banning unpaid internships a bad idea [Yglesias] Interns who sued employers can’t find jobs [CNN Money, auto-plays]
- NYU decides to let grad students unionize through non-NLRB channel [al-Jazeera]
- New headache for managers: class actions filed against employers (yes, employers) under Fair Credit Reporting Act (FCRA) [Jottings by an Employer’s Lawyer]
- de Blasio owes SEIU big and now the bills will come due [Newsday]
The ACLU “evolves” on speech rights
In McCullen v. Coakley, the Supreme Court will reconsider its 2000 decision in Hill v. Colorado, which upheld a law prohibiting (among other things) leafleting and some other forms of peaceful protest within 100 feet of an abortion facility. (Massachusetts in 2007 passed a similar law which is now under challenge.) Noted civil libertarian Floyd Abrams, writing in the WSJ, sees the case as a straightforward one of supporting free speech for a position with which he happens to disagree. But the ACLU, Abrams notes, has changed its position between the earlier case and this one, and in a speech-unfriendly direction:
In a friend-of-the-court brief in Hill, the ACLU argued that because the Colorado statute “burdens substantially more speech than is necessary to accomplish the state’s goal,” the statute was facially unconstitutional. When the 2007 statute was proposed in Massachusetts, the Massachusetts ACLU opposed it, stating that “[i]f the message is unwelcome, as it often will be outside abortion clinics, the constitutionally appropriate response in a public forum is for the listener to walk away.”
But now that McCullen has reached the Supreme Court, both ACLU groups have switched sides. Their position, their brief states, has “evolved over time” and the Massachusetts law is, after all, constitutional on its face. Of course, the First Amendment has not changed in the 14 years between the filing of the ACLU briefs in Hill and McCullen; the ACLU has.
The old ACLU got it right.
P.S. More from Jonathan Adler. And the Cato Institute filed this amicus brief in the case of McCullen v. Coakley.
Overreach in demand letters
But put aside whether Spin Master can win this infringement claim on the merits, consider what they asked for in their demand letter, as explained on You Rather’s blog:
1. Stop using “You Rather” and any other phrases that are similar to “Would you rather”. This includes one (yes, really) or more of the words “Would”, “You”, or “Rather”.
2. Hand over our yourather.com domain immediately
3. Tell them how much money You Rather has made (presumably to ask for that too)
4. Pay for their lawyers“One or more of the words ‘Would,’ ‘You,’ or ‘Rather.’” Presumably this is meant to prevent You Rather from just rearranging words, but this is a demand letter, not a contract. There’s no need to get cute and ask the website to agree to abandon any use of the word “you.” This is why people hate lawyers.