I believe at some point I have mentioned in this blog that David O'Brien authored a book about an unpublished opinion written by Justice Robert H. Jackson that would have served as a concurrence to the court's opinion in the famous 1954 case, BROWN v. BOARD. The court's opinion was expressed in a unanimous vote and a single opinion by Chief Justice Earl Warren, declaring that the old rule that allowed "separate but equal" treatment in education facilities, i.e. segregation by race in schools, was a rule no longer. A follow-up decision the next year addressed the issue of remedy: it ordered states to desegregate their schools with all "deliberate speed." (Jackson was dead by that time.) Jackson never published his concurrence because the Chief Justice lobbied hard to dissuade him from doing so. It was Warren's considered view that on a matter so pressing the Court must speak with one voice. I bring it up again because I would like to offer a quota...
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Let us return to as subject broached last week, the US Supreme Court's decision in MACQUARIE INFRASTRUCTURE v. MOAB PARTNERS. As I noted, the case involves the private (tort) use of an SEC rule, 10b-5, and it says that the omission of material facts by the issuer of securities will NOT present a cause of action in tort by a buyer of the securities unless the omission is such as to render statements that actually WERE made by the company misleading. Today I'd like to say something about the specific underlying issue. Some of Macquarrie's most valuable assets are terminals for the storage of fuel oil. Its terminals are designed to accommodate high-sulfur fuel oil. What Macquarrie neglected to say, setting up Moab's ire and this lawsuit, is that under the influence of a United Nations rule relating to climate change, high sulfur fuels are getting phased out around the world. That's a good thing. But it is a very bad thing for the value of the Macquarrie...
From the book SPEAKING FREELY by renowned first-amendment litigator Floyd Abrams, published back in 2005. He is discussing his involvement in the case of Landmark Communications v. Virginia (1978). A newspaper owned by Landmark had published an (accurate) story that a certain juvenile-court judge in that state was under investigation on a "fitness" grounds. There had not yet been a disciplinary hearing: the investigation might have concluded there was no need for one. At this point, under Virginia law, the investigation was supposed to be confidential, for the protection of the reputation of the judge and other reasons. The newspaper was criminally prosecuted. The matter went up to the US Supreme Court where Abrams argued. Abrams maintained that no accurate reporting about the performance of the duties of a public official can constitutionally be criminalized. This brings us to the bit I want to quote. Abrams reports that he was discussing this case...
The Supreme Court of the United States has vacated a stay by the 5th Circuit in the NETCHOICE case. This is important, but understanding its importance requires some explanation. So bear with me. Netchoice is a trade association that represents major social media platforms. It filed an action against a law that prohibits social media platforms from censoring their users. Suppose Hans tweets out, "There was no Holocaust -- Hitler was a great leader and the world needs more like him." The law means Twitter can not take that down. At some point in the life of this blog I have probably mentioned the shopping-mall cases of the early 1970s. The gist of them is that the Supreme Court does not recognize private corporations, even when they operate public spaces, as state actors. Hans has no right to hand out Nazi leaflets in the food court of a mall. Indeed, the mall's corporate owners (corporations are people) have their own free speech rights which entail the right to...
Today and tomorrow I will present a timeline of the last 38 years. Just one event per year. With little organization. Just think of this as a lot of stuff that happened. If we try to think of them as the "most important events" of their respective years, some of the choices will seem a tad eccentric. 1984, The Sino-British Joint Declaration sets out plans for a transition of Hong Kong to PRC sovereignty. 1985, Microsoft releases Window 1.0 1986, The launch of the Fox Broadcasting Co. 1987. The US FDA approves the marketing of Prozac. 1988. This was the year of the peak of the insider trading scandal that made Rudolph Giuliani a person of importance. Drexel Burnham pleaded guilty this year. 1989. This was the year of the SATANIC VERSES controversy involving the Ayatollah Khomeini and Salman Rushdie. 1990. East and West Germany re-unite after decades of separation. 1991. The Soviet Union dissolves itself. 1992. The European Union comes into being, as a stronger an...
The Supreme Court had a lot to say about the various clauses of the first amendment. Sometimes the most important statements a court can make are in its decisions on what cases it will not take up. And that was the case this term, with the high court's refusal to take up the case of Berisha v. Lawson. That is important to the continuing role of the Supreme Court as a protector of freedom of the press, and the uniquely hard time that public figures have in mounting a plausible defamation lawsuit in the United States. The new configuration of Justices has been re-working the religion clauses from scratch in recent years, and that process has continued this term. And there is the much-publicized matter of the cursin' cheerleader to consider. We will contemplate those points in that order today. (The above image is of Mary Beth Tinker, the plaintiff in free-speech-for-minors litigation of more than 50 years ago -- photos taken than and now. her case came to the fore again...
At this time of year I ask myself what were the biggest stories of the year ending in business/financial news. This year, the answer "Covid-19 and its Consequences" must dominate, as completely as the Wall Street centered financial crisis dominated 2008. Breaking that down by month as usual, I've given Covid-related stories to four of the twelve. That still rather understates its significance, but blame that on the ease with which I am bored. And I could have called my December entry Coronavirus (5), but chose to go with something more specific for that one. Let's start with those innocent days of January, when few people very far from Wuhan had any clue what was coming. Instead, there was a lot of talk about pipelines that month. January Pipelines. The TurkStream pipeline illustrates the continued viability of fossil fuels. https://www.reuters.com/article/us-turkey-russia-pipeline/turkey-russia-launch-turkstream-pipeline-carrying-gas-to-europe-idUSKBN1Z71WP ...
Regular readers of this blog may remember that I have on earlier occasion covered the very slow march through the court system of a monster of an intellectual property case, the dispute over the legality of Google's use of Java interfaces in its Android coding. But to review: years ago Oracle bought Sun, the company whose engineers had created the Java programming language, on which various APIs (application programming interfaces) have in turn been built. The dispute is a matter of copyright, not of patents. And early on in this litigation, Google took the position that there is no copyrightable interest in APIs. The Federal Circuit held against that view, and remanded to the trial courts for consideration of whether Google use is "fair use" under copyright doctrine, or unfair and thus infringing use. The Supreme Court, in 2015, declined to hear an appeal from the Federal Circuit, so Google resigned itself to fighting that battle in the trenches of a trial. The jury ...
Praying the Gay Away Back in July 2015 I wrote, in my round-up of THAT recently completed SCOTUS term, about the Court's decision to deny cert in KING v. CHRISTIE. This left standing the decision of the 3d Circuit C of A upholding New Jersey's ban on"conversion therapy," that is, on giving the "pray the gay away" stuff the mantle of science. Two years later, there is another denial of cert to report in much the same situation. Again the Court preserved a legislative rebuke to such therapy by denying cert. http://www.reuters.com/article/usa-court-gayconversion-idUSL1N1I31A6 There was a shade of difference. The earlier case was presented as a "free speech" challenge, this one as a "freedom of religion" challenge. Since Hobby Lobby, the freedom-of-religion clause has been very chic in right-of-center circles. Personally, though, I thought that the earlier challenge had some prima facie plausibility, as I said at the time. I can...
[Despite my efforts to straighten things out, the fonts, spacing, etc, in this post has ended up an ugly hodge-podge. My apologies. - CF] T o first amendment lawyers, this is preeminently the term in which Matal v. Tam found that the disparagement clause of the trademark statute infringes upon the free speech right under the first amendment. The court was unanimous as to the judgment (that the "Slants," a dance-rock band, can be trademarked as such) though there were differences as to the reasoning. Hugh C. Hansen, law professor at Fordham, has called this “one of the most important First Amendment free speech cases to come along in many years.” Simon Tam and his fellow band members made for sympathetic defendants. They obviously were not disparaging their own Asian background. They were appropriating a stereotypical slur concerning Asians’ eyes, in the tradition of many groups throughout history who have turned insults into badges of ...
The constitutional cases have the drama, because by definition they involve a challenge to another branch of government. But it is arguable that SCOTUS has its impact on ordinary lives more through statutory construction: a process which may have been made possible by earlier constitutional decisions, but one which can take those decisions as a given. One can always say, "oh, SCOTUS isn't actually exercising power here, because if Congress didn't like the way it reads the statute, Congress could always change it." But the stars have to align rightly for that to happen. SCOTUS has wide latitude to read statutes one way or another before it incites such a legislative re-alignment. And so we come to some of the statutory decisions of this term. Bank of America v. Miami This term, by 5-3 vote, the Justices interpreted the Fair Housing Act of 1968 as authorizing lawsuits by anyone who "claims to have been injured by a discriminatory housing practice,...
Another term of the U.S. Supreme Court has come and gone and, once again as in years past, I’d like to say something about it in this blog. Since it’s my blog, I hereby award myself that wish, over the course of this and the next three posts. I don’t plan to discuss Jevic Holding . That was a very important decision, re-affirming ideas foundational to bankruptcy law, but … I’ve already taken a couple of cracks at it in this blog, and would have nothing new to say now. I was tempted, in my earliest outlining of this discussion, by the idea of discussing at some length recent events in the public finance and politics of Puerto Rico. These events (including a very strikingly pro- statehood referendum result) in large part follow from the Supreme Court’s decisions on Puerto Rican matters last term. But I’ll save myself some time and give the matter the ‘elevator’ treatment: subsequent events have been entirely consistent with my treatment of those decisions at the time. ...