Continuing a discussion of the Supreme Court's term: Students owe and unions strike

 

SCOTUS ended this term with aplomb, and with a bomb, the long-awaited ruling on student debt relief. The decision, which struck the Biden administration's debt relief program, came about, in formal terms, as an interpretation of the Higher Education Relief Opportunities Act. 

Some in the US maintain that it would be both right and urgent to make college free in the United States. Forgive all college-generated debt, and nationalize the financing of college that will make lending for such purposes hereafter a non-issue. The Biden administrations plans fall very very short of that. To Biden this is a one-shot debt forgiveness, rather narrowly targeted. Only $20,000 of debt forgiveness for 30 million people. The idea is to give those people a one-time break, given the general impression that the lending has gotten out of control and the borrowers are suffering too great a burden. Also, this one-shot move can be justified as a post-Covid stimulus, akin to the checks that President Trump sent out, after assuring himself that his name would be on them. 

One could well argue with that from either point of view: as too little and too much. As noted above, one could (and some do) argue that college ought not to be a personal or household expense at all. One could also argue that higher education ought to be more market responsive that it has been for a long time, in a world where direct and indirect subsidies have been the crack to which colleges and universities have become addictive.  

But if you believe that SCOTUS is not supposed to be the place for policy fights, you will look at this as simply a matter of statutory construction, it is worth noting that  HEROES is a 2003 statute giving emergency authority to the Education Department to waive or modify student loan programs.  

The language gives the executive branch a lot of discretion as to what relief can be offered debtors and under what circumstances. On a purely textual basis, the question of whether this relief exceeded the statutory limits seems to me to be a close one. The phrase "waive or modify" may be read to suggest that there is some middle ground that is neither of those. "This statute neither waives nor modifies the previous rules, but ... metabolizes them." There is nothing inherently absurd in that sentence. 

If you are interested in the history of the student debt issue, consider that at one time the salient political concern was that it was supposedly too easy for recent college graduates to rid themselves of their debt burden. Too many of them were declaring bankruptcy for this purpose. In the mid 1970s Congress amended the bankruptcy law to make the discharge of these obligations through the procedure that applies to most other consumer debts effectively unavailable. 

Perhaps it simply took 45 years or so for karma to do its work. Now we are struggling as a country with what we wrought.

Labor Law 

There were at least two labor law cases worthy of note this term. In February, SCOTUS decided a case that arose under the Fair Labor Standards Act, Helix Energy Solution Group v. Michael Hewitt. 

Helix tried to avoid paying Hewitt overtime. Companies are not required to pay their own "bona fide executives" OT, and Helix tried to shoehorn Hewitt into that category.

It WAS a really inventive shoehorning, since Hewitt was only a well-paid working stiff of a particular kind, not any sort of executive. 

Hewitt worked on an offshore oil rig, typically working 84 hours a week while on a vessel. He could work 24 consecutive twelve hour days in the confined work environment involved. Then have some tie with his family back on shore while someone else gets a "hitch." He was paid well for this, earning more than $200,000 annually. Of course that figure would have been higher if a lot of those hours had been at time-and-a-half. 

In treating of this matter, the three Dem appointees found three allies among the Republican appointees in Thomas, Barrett, and Chief Justice Roberts. This left Alito, Gorsuch, and Kavanaugh in the minority. 

The statute was not invented for the work environment in which Hewitt was employed. And perhaps that might be an argument against the statutory scheme. But since it plainly does exist, one cannot blame Hewitt for seeking his rights thereunder, and one can certain blame the company for trying to finagle their way out of it. 

So, THAT one came out in an intuitively appealing way. It is good to note, too, that it split Thomas from his usual partner in crime, Alito. 

Another big labor case decided this session may have introduced a big change into collective bargaining law. Glacier Northwest v. Teamsters looked at whether or when the National Labor Relations Act preempts tort claims that might arise from a recognized union's exercise of the protected right to strike. This was an 8 to 1 decision. Only the newest Justice, Biden nominee Ketanji Brown Jackson, dissented. 

Glacier Northwest is in the concrete business. Concrete begins to harden immediately once at rest, so the very calling of a strike can cause great damage to the critical inventory of such a company. Justice Barrett for the majority complained that the Teamsters "executed the strike in a manner designed to compromise the safety of Glacier's trucks and destroy its concrete."

In dissent, Jackson reads the NLRA like an originalist. It clearly was written with the expectation that tort law in the several states would be preempted by the federal action. For fans of the old Saturday Night Live, she is impersonating the Church Lady, saying some people only look at original texts when it is con --veeeen --yunt. 

Two unanimous decisions

In May, SCOTUS decided Sackett v. EPA. The case arose because, as the case syllabus explained, "Landowners who even negligently discharge pollutants into navigable waters without a permit potentially face severe criminal and civil penalties under the Act. As things currently stand, the agencies maintain that the significant-nexus test is sufficient to establish jurisdiction over “adjacent” wetlands. By the EPA’s own admission, nearly all waters and wetlands are potentially susceptible to regulation under this test, putting a staggering array of landowners at risk of criminal prosecution for such mundane activities as moving dirt." 

In this decision, landowners received an assist and the regulators were reined in a bit. For some analysis and context, go here: Supreme Court curbs EPA power to protect some wetlands | The Hill.

Intriguingly, there was no dissent in this opinion. It seems to have become common ground that regulators in such matters need some judicial reins. Alito wrote the decision for the majority but Justice Kagan wrote a concurring opinion in which the other two Obama/Biden nominees joined. 

There was another case, decided the following week, that shared these properties. It reined in a federal regulatory agency and it was decided without dissent. I mean the decision of Slack Technologies v. Pirani.  This decision involves the distinction between an initial public offering  and a direct listing, two distinct ways in which a company can go public, under the system first created by the Securities Act of 1933. 

The direct listing system involves the sale to the public simultaneously of both registered and unregistered shares of the same stock. Leave along the specifics of that decisions, which would take some explaining: Pirani was suing Slack because he contended certain facts in their registration statement were false. Slack moved to dismiss on the ground that Pirani couldn't prove he had bought registered shares. So he could not establish that he was entitled to rely on the registration statements. Or, in other words, there wasn't an adequate nexus between the statements he complained of and the loss of money he suffered when the stock price fell after the direct filing. 

In this instance, not only was there no dissenting opinion. There was no concurrence either. Everybody signed on to Gorsuch' opinion for the court. 

 Goldsmith's photo of Prince

The Warhol estate was found to have infringed the copyright of Lynn Goldsmith by its unauthorized use of Goldsmith's photo of Prince. Two dissenters, Kagan writing for herself and C.J. Roberts, thought the Warhol estate had engaged in fair use.

Warhol was all about the appropriation of images. It was his stock-in-trade. He did not originate the images of Campbell's soup cans, or Marilyn Monroe, or of Prince with which he has become associated. 

There are some differences worth noting, though. The Campbell's people are in the business of selling soup. Warhol's use of the image of their can design was not an appropriation by a rival soup seller (Progresso hadn't stolen the design, God forbid), and it did not harm -- it perhaps did some good, to the cause of their sale of their soup. 

Marilyn Monroe had been dead for five years before Warhol started doing prints of her image. The image was by then politically and culturally a fraught one, in part because of a widespread impression that the story of her "suicide" was the cover-up of a murder; in part because of the cultural change underway and its growing reaction against old-Hollywood studio-approved notions of glamour.

I would say that the Warhol estate had a weaker case regarding the Prince prints than it would have had defending itself against the soup company or any claimant to ownership of Monroe's image. 

Tomorrow we look at some constitutional questions. We will start here where we ended up here, with an intellectual property dispute: IP is of course both a statutory and a constitutional issue. We will be looking here at what Jack Daniels whiskey has to do with dog poop.