Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘Supreme Court’

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.

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SCOTUS to consider software patents

More clarity, or even deeper confusion? The Supreme Court has agreed to revisit software patents in the case of Alice Corp. v. CLS International. “A system of property rights is flawed if no one can know what’s protected. That’s what happens when the government grants 20-year patents for vague software ideas in exchange for making the innovation public.” [Gordon Crovitz, WSJ, quoted at Marginal Revolution; Daniel Fisher, Forbes]

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Man facing draconian fines over fax wording deserves day in court

Douglas Walburg faces potential liability of $16-48 million. What heinous acts caused such astronomical damages? A violation of 47 C.F.R. § 16.1200(a)(3)(iv), an FCC regulation that enables lawsuits against senders of unsolicited faxes.

Walburg, however, never sent any unsolicited faxes; he was sued under the regulation by a class of plaintiffs for failing to include opt-out language in faxes sent to those who expressly authorized Walburg to send them the faxes.

The Federal Communications Commission has now taken the position that a federal enactment known as the Hobbs Act “prevents federal courts from considering challenges to the validity of FCC regulations when raised as a defense in a private lawsuit.” The Cato Institute has joined the National Federation of Independent Business in an amicus brief seeking Supreme Court certiorari, supporting Walburg’s position “that the Eighth Circuit was wrong to deny him the right to judicial review without having to initiate a separate (and impossible) administrative review.” [Ilya Shapiro, Cato]

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Supreme Court and constitutional law roundup

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Reining in patent litigation via fee shifts

Prevailing parties in patent suits can win attorneys’ fees from losing opponents in cases deemed “exceptional.” “Under the test used to identify exceptional cases, cases must be objectively baseless and brought in bad faith.” That is already a painfully narrow exception, allowing for large volumes of poorly founded litigation, but two cases before the Supreme Court this term may provide clarity on when courts can deem cases “exceptional” and suitable for a fee shift. Broader use of fee shifts — presumably by way of deeming at least some swath of losing cases “exceptional” — would be one way of addressing the patent troll problem that would not call for new legislation. [ABA Journal, related, Corporate Counsel (arguments that judiciary can deal with trolls on its own]

In other developments, the Federal Trade Commission has voted to proceed with an inquiry into the patent troll problem [New York Times] and the Government Accountability Office has released a long-awaited report on the issue [Mike Hogan and Gregory Hillyer, Legal Intelligencer]

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UNITE HERE v. Mulhall

Sean Lengell of the Washington Examiner quotes me in a preview of the upcoming Supreme Court case about whether the provision of federal labor law barring employers from giving a labor union a “thing of value” prohibits “neutrality agreements” in which an employer provides its employee lists or free office space to union organizers. A broad ruling to that effect would wrest a major weapon away from unions, which is one reason I’m doubtful it will happen:

“Those that would like to rein in this type of union agreement, whether it be business or conservatives, shouldn’t get too overconfident,” said Walter Olson, a senior fellow at the libertarian-leaning Cato Institute. “Getting the justices to see the logic of Mulhall’s argument is one thing; getting them to act and sign a decision [in his favor] is something else.”

Olson added the justices may be looking for a way out of having to make a definitive ruling.

“I think the court’s instincts are not to pull too hard at the columns of the temple on labor law, because they’re not sure where it’s going to fall,” he said.

Update: reactions to Mulhall oral argument from Jack Goldsmith (and more), Ben Sachs, Cato’s Trevor Burrus, and William Gould/SCOTUSBlog.

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Oral argument in Bond v. U.S.

A testy exchange between Justice Stephen Breyer and Solicitor General Donald Verrilli Jr. “was not the only signal that the administration may have difficulty winning in the case of Bond v. United States, which began as a ‘lover’s triangle’ dispute from Pennsylvania but has mushroomed into a major test of the power of Congress to implement international treaties in ways that may interfere with the prerogatives of the 50 states.” [Tony Mauro, NLJ, Daniel Fisher, earlier on Bond] Michael Greve finds the administration’s stance “breathtakingly aggressive. … when the government stumbles into Court with no principle, rule, or line to cabin its assertion of power, it loses. That’s Lopez, that’s Morrison, that’s NFIB.” [Liberty Law] Related, Peter Spiro/OJ.

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CJ Roberts: Court may need to visit cy pres

The Supreme Court has declined review in Marek v. Lane, a case arising from the settlement of a privacy lawsuit against Facebook, which had presented questions about the proper use of cy pres distributions (in which money goes not to victims of the sued-over conduct, but to non-profits or other third parties). Writing in a separate statement, however, Chief Justice John Roberts indicated that the issues are of genuine concern to him, whether or not this case was the right one in which to address them. Excerpt:

I agree with this Court’s decision to deny the petition for certiorari. Marek’s challenge is focused on the particular features of the specific cy pres settlement at issue. Grant­ing review of this case might not have afforded the Court an opportunity to address more fundamental concerns surrounding the use of such remedies in class action liti­gation, including when, if ever, such relief should be con­sidered; how to assess its fairness as a general matter; whether new entities may be established as part of such relief; if not, how existing entities should be selected; what the respective roles of the judge and parties are in shaping a cy pres remedy; how closely the goals of any enlisted organization must correspond to the interests of the class; and so on. This Court has not previously addressed any of these issues. Cy pres remedies, however, are a growing feature of class action settlements. See Redish, Julian, & Zyontz, Cy Pres Relief and the Pathologies of the Modern Class Action: A Normative and Empirical Analysis, 62 Fla. L. Rev. 617, 653–656 (2010). In a suitable case, this Court may need to clarify the limits on the use of such remedies.

[Adam Steinman, Civil Procedure and Federal Courts Blog, earlier here, here; see also Archis Parasharami, Mayer Brown “Class Defense”] Relatedly, “Taking on Class Action abuse: A conversation with Ted Frank, founder of the Center for Class Action Fairness” is a new podcast at Liberty Law.

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Mount Holly Gardens: ‘Til we moot again

It looks as if someone really doesn’t want the Obama administration’s treasured but shaky “housing disparate impact” theory to come under review by the Supreme Court [Josh Blackman on reports of settlement mooting Mount Holly, N.J. case granted certiorari and pending before the Court; earlier on controversial tactics used to moot St. Paul case through settlement]

More: Piscataway v. Taxman also dropped off the Court’s docket via a mootness tactic. And shorter Doug Kendall/Constitutional Accountability Center: how dare PLF, Cato and IJ take the Court’s word on what the issue is in Mt. Holly? [Ilya Shapiro]

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Constitutional and Supreme Court roundup

  • Now available: 2012-13 edition of the celebrated Cato Supreme Court Review. And full video of Cato’s Constitution Day, at which many of the CSCR authors spoke, is up here;
  • Is a hearing necessary if prosecutors freeze assets needed to pay defense lawyers? Court hears argument in forfeiture, money laundering case Kaley v. U.S. [ABA Journal, Jacob Sullum, Scott Greenfield, Harvey Silverglate]
  • Court grants certiorari in greenhouse-gas case Utility Air Regulatory Group v. EPA [Jonathan Adler, Richard Faulk]
  • Ilya Somin briefly reviews three new books on constitutional law: John McGinnis and Michael Rappaport on originalism, Randall Kennedy on affirmative action, and Clark Neily on judicial engagement [Volokh]
  • General jurisdiction: “Justices Wrestle With Whether California Law Reaches A Mercedes Plant In Argentina” [Daniel Fisher]
  • Home Building & Loan Ass’n v. Blaisdell (1934) eviscerated the Contracts Clause, right? Well, it’s complicated [Gerard Magliocca]
  • Much-noted interview with Justice Scalia [New York mag] Is there a conservative jurisprudence bubble? [Daniel McCarthy] New opera “Scalia/Ginsburg” [Washington Post]
  • “The Fiduciary Foundations of Federal Equal Protection” [Gary Lawson, Guy Seidman, & Robert Natelson, SSRN]

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