- Eighth Circuit Cato amicus defends right of videographer couple in Minnesota not to film same-sex weddings for hire if they don’t care to [Ilya Shapiro and Reilly Stephens] Meanwhile: “California Court Upholds First Amendment Right Not to Bake Cake for Same-Sex Wedding” [Eugene Volokh, who takes a different side from Cato on expressive status of cake creation]
- “It’s all about the shared love for Disney.” Is that why they’re suing? [Hugo Martin, Los Angeles Times]
- “Whistleblower Lawyers See a Growth Area: Customs Fraud” [Henry Cutter, WSJ]
- Supreme Court hears oral argument in Janus, the public employee union fees First Amendment case [Ilya Shapiro/Washington Examiner, SCOTUSBlog coverage by various authors, Amelia Thomson-DeVeaux/538, earlier]
- Copyright: “US Judge dismisses Taylor Swift ‘haters’ case as too ‘banal'” [Mark Savage, BBC]
- Dangerous for an advice letter from an NLRB lawyer to say that references to gender-based differences in James Damore memo “were discriminatory and constituted sexual harassment” Ken at Popehat, Robert VerBruggen/NRO, Jerome Woehrle]
Posts Tagged ‘Supreme Court’
CCAF contests $8.5 million Google privacy settlement
It’s a cy pres special: members of the injured class will get no part of an $8.5 million settlement Google negotiated with plaintiff’s lawyers over a data privacy lapse. “Instead, the money is to be split among the plaintiffs’ attorneys, who billed their time at $1,000 an hour, and others. The others are cy pres recipients, or organizations that are not parties in the suit: Carnegie Mellon University; World Privacy Forum; the Center for Information, Society and Policy at the Chicago-Kent College of Law; Stanford Center for Internet and Society; Harvard University’s Berkman Center; and AARP Inc.” Ted Frank’s Center for Class Action Fairness is asking the Supreme Court for a writ of certiorari after its objections were turned down by lower courts. [Dee Thompson, Legal NewsLine, earlier here and here (Beck: “cy pres abuse poster child”)]
Plus: Bank of America settlement will now yield cy pres windfall for five University of California law schools of $150,000 rather than $20 million. Easy come, easy go? [ABA Journal]
South Dakota v. Wayfair: can states collect sales tax from out-of-state merchants?
David Post at Volokh Conspiracy has written an explanation and defense of the Supreme Court’s holding, in 1992’s Quill v. North Dakota, “that a State may not require out-of-state sellers of goods or services to collect that State’s sales/use tax, unless the out-of-state seller has some ‘physical presence’ in the State – a retail outlet, warehouse, office, or the like” This term’s case of South Dakota v. Wayfair invites the Court to retreat from that holding. The Quill rule is often criticized for privileging online commerce unfairly over brick-and-mortar, but the contrary rule, says Post, would tend to do the reverse by sinking small online retailers under impossible regulatory burdens. A foretaste of those burdens:
South Dakota’s law, however, does not merely require her [an Idaho woman with a web storefront selling crafted iPhone cases] to collect South Dakota’s sales tax; it subjects her to the full range of South Dakota’s tax and regulatory jurisdiction, including the panoply of South Dakota’s licensing, recordkeeping, and registration requirements, and would, among other things, make her subject to periodic audit by the South Dakota Department of Revenue – which, in many States, requires an in-person appearance before the Revenue Board.
And of course if the Court discards the Quill rule and upholds South Dakota’s law, we can expect other jurisdictions to follow suit.
There are more than 6,000 taxing jurisdictions. Post argues that congressional action is needed, rather than a free-for-all of local taxing power.
December 13 roundup
- Cakes and coercion: “Endorse the state’s right to coerce speech or conscience and you have ceded a principle that can so easily come back to haunt you.” [Andrew Sullivan, New York mag] “The legal course has some advantages. You can use state power, ultimately the barrel of a gun, to compel people to do what you think is right.” [David Brooks] Yes, courts have often found a constitutional right to discriminate, so scratch that Masterpiece Cakeshop talking point [Eugene Volokh]
- Fugitive Kentucky lawyer and disability-fraud king Eric Conn arrested in Honduras [Bill Chappell/NPR, earlier here and here]
- As White House belatedly consults, heeds seasoned counsel, lawsuits against travel ban begin running out of steam [Ilya Shapiro, The Hill]
- Cheers for restoring schools’ discretion to serve 1 percent chocolate milk, USDA, and next bring back whole milk [Stephanie Ebbs and Erin Dooley/ABC News, earlier]
- Court hears oral argument on sports betting and state commandeering case Christie v. NCAA [Ilya Shapiro/Cato, Jacob Sullum, earlier]
- At recent federal court showdown with Waymo, things went from bad to worse for Uber’s lawyers [Cyrus Farivar, ArsTechnica]
High Court debates wedding cakes and forced expression
“On the Left, some pine for a hard-line opinion that claims of religious liberty or free speech can never, ever provide an excuse for discrimination. But it’s not just the Alitos and Clarence Thomases who would oppose that outcome. All four liberal justices yesterday gave indications that even if they would not draw the line on compelled speech *here*, they would draw it *somewhere*.” My take on yesterday’s oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission is up at the New York Daily News.
The principles of free contract and association and the wrongness of compelled expression and participation will endure whether or not SCOTUS sees its way clear to recognizing them in this case. Earlier; Roger Pilon (“If there is intolerance here, it is from those who would force a man to choose between his religious beliefs and his livelihood”); Ilya Shapiro; Cato’s brief; Erica Goldberg. And I’m quoted in Brandon Ambrosino’s Washington Post coverage of the case (“the lasting influence is not primarily which side wins, but where to draw the line between what is and is not expression”) and by Chris Johnson in the Washington Blade (““Neither side [on the Court] wants to inflict a culture war on the country; they’re trying to work out something without culture war.”)
Supreme Court roundup
Mostly Cato links:
- Today, Monday afternoon: Ilya Shapiro and John Paul Schnapper-Casteras preview Masterpiece Cakeshop v. Colorado Civil Rights Commission from different perspectives on eve of oral argument, Roger Pilon moderating [watch online, earlier] Why, on cakeshop case, “it won’t surprise me if the court comes up with something a little muddled and a little bit hard to read” [Chris Johnson, Washington Blade, quotes me] More: George Will (cakes are not expression; but while couple who sued cake-baker “might be feeling virtuous for having done so… siccing the government on him was nasty.”);
- “Christie v. NCAA: Anti-Commandeering or Bust” [Jonathan Wood and Shapiro, earlier here and here] “Supreme Court’s Sports Betting Case Could Redefine Relationship between Feds and States” [Shapiro]
- Federal courts were politicized before the Federalist Society came along, and promoting the cause of textualism helps de-politicize them [Roger Pilon]
- SCOTUS should use Janus v. AFSCME to recognize public employees’ First Amendment rights against forced union agency fees [Shapiro, Trevor Burrus, and Aaron Barnes] More: Shapiro and Frank Garrison, National Review; Cato Podcast with Jacob Huebert and Caleb Brown;
- Silvester v. Becerra: Ninth Circuit errs on individual gun rights, SCOTUS should correct [Shapiro and Matthew LaRosiere]
- Assuming patents = property, structure of Patent Trial and Appeal Board may flunk constitutionally required norms of judicial independence [Shapiro and Barnes on Oil States Energy Services, LLC v. Greene’s Energy Group, LLC; Federalist Society panel video with Gregory Dolin, John Duffy, Arti Ray, and Robert Greene Sterne; Jeffri Kaminski, WLF]
- Collins v. Virginia gives Court a chance to protect the integrity of the home against warrantless searches [Jay Schweikert] And mark Dec. 13 for the 2017 Cato Surveillance Conference;
- Extending Commerce Clause to prairie dogs gnaws at constitutional principle [Shapiro, Burrus, and Reilly Stephens on Cato amicus brief urging certiorari in PETPO v. U.S. Fish & Wildlife Service; Jacob Sullum]
Free speech roundup
- SCOTUS grants certiorari in three First Amendment cases, bringing term’s total to four so far: National Institute of Family & Life Advocates v. Becerra (challenge to California law requiring “crisis pregnancy centers” to convey state-prescribed messages), Lozman v. Riviera Beach (scope of First Amendment claims for retaliatory arrest), Minnesota Voters Alliance v. Mansky (ban on political apparel at polls) [Ronald K.L. Coleman, Amy Howe/ SCOTUSBlog, Eugene Volokh, Howard Wasserman]
- Roy Moore threatens Alabama newspapers with legal action, newspapers fire back with preserve-your-records-or-risk-sanctions warning [Erik Wemple, Washington Post]
- Section 230 at risk: proposed amendment to trafficking bill doesn’t go nearly far enough to remove chilling effect on online speech [R Street coalition letter, Mike Godwin, The Hill, earlier]
- “Judge Smacks Down Another Anonymous Cop’s Lawsuit Against Black Lives Matter” [Tim Cushing, TechDirt; earlier on Baton Rouge suits]
- Asian-American band gets their trademark “The Slants” — fought over in a case that went to the Supreme Court — registered at last [Eugene Volokh, earlier]
- “Sen. Feinstein’s Threat to ‘Do Something’ to Social Media Companies Is a Bigger Danger to Democracy Than Russia” [Scott Shackford, Reason]
…
The not-so-rapid implosion of the Contracts Clause
In conventional legal histories of the New Deal-era Supreme Court, the 1934 case of Home Building Association v. Blaisdell symbolizes the overthrow of the courts’ willingness to enforce the Constitution’s language providing that “No State shall…pass any…Law impairing the Obligation of Contracts.” The Court by a 5-4 margin upheld as lawful a Minnesota law enforcing a moratorium on many mortgage obligations. But in fact, argues David Forte at the Federalist Society Review, the decline and fall of the Clause was more complicated. Blaisdell or no, the Court for years continued to strike down many state laws that impaired contracts, and the justices of the Court’s liberal wing sometimes joined, as in Worthen v. Thomas, a unanimous case disallowing Arkansas’s impairment of certain contract rights. It was not until 1945 that Justice Felix Frankfurter retrospectively contrived to interpret Blaisdell as a sweeping repudiation of the older Constitutional order, ushering in the modern era in which few state laws are struck down. It was effectively an act of will by the then Court — and one that could be reversed should there develop will to the contrary.
Liability roundup
- Hoping to blame Pacific Gas & Electric power lines for Northern California fires, lawyers from coast to coast descend on wine country [Paul Payne, Santa Rosa Press-Democrat]
- Courts should police lawyers’ handling of class actions, including temptation to sweep additional members with doubtful claims into class so as to boost fees [Ilya Shapiro, Trevor Burrus, and Reilly Stephens on Cato certiorari amicus in case of Yang v. Wortman]
- “Seventh Circuit Curtails RICO Application to Third-Party Payor Off-Label Suits” [Stephen McConnell, D&DL] “Here Is Why The False Claims Act Is An ‘Awkward Vehicle’ In Pharma Cases” [Steven Boranian]
- Litigation finance moves into car crash business [Denise Johnson, Insurance Journal]
- Slain NYC sanitation worker’s “frequent advice to Sanitation colleagues about how to save for the future helped persuade the jury that Frosch had a viable career ahead of him in financial planning,” contributing large future earnings component to $41 million award [Stephen Rex Brown, New York Daily News]
- “Ninth Circuit Overturns State Licensing Scheme Forcing Businesses to Incorporate in California” [Cory Andrews, WLF]
Dividing the cake: high court briefs show First Amendment split
Eugene Volokh and the Cato Institute amicus program hardly ever take opposite sides of a First Amendment case, but it’s happening in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. At issue is whether the concept of expression extends to cake decoration, and if so how far. (Only cakes bearing custom/unique messages or symbols?) It’s not an easy line to draw. [Adam Liptak, New York Times; Eugene Volokh/Dale Carpenter brief for American Unity Fund; Cato brief]
SCOTUSBlog has a symposium on Masterpiece Cakeshop. The exact couching of the facts — was Phillips being asked to create a cake or design one? — could be important to the outcome [Ronald K.L. Collins] There is a Cake Artists brief. [Althouse]
While on another note, “Christian Cake Bakers and Gay Coffee Shop Owners: Why Freedom of Association Is for Everybody” [Jonathan Rauch, National Affairs; Scott Shackford, Reason] Earlier here, here, etc.