Archive for the ‘Current Events’ Category

Secure Identities on the Internet

posted by Frank Pasquale

Katharine Gelber offers a thoughtful review of The Offensive Internet in the Australian Review. (David Levine conducted an interview with the book’s editors, Martha Nussbaum and Saul Levmore, available here.) I contributed an essay to this volume, and I found both the other essays in it and the conference it was based on very illuminating. As Gelber notes,

Anyone who believes the Internet to be exclusively, or even primarily, a site for the democratisation of the media or a mechanism to enhance participation in public discourse needs to read this book. This outstanding collection tackles the dark side of the Internet, its use by ‘cyber mobs’, liars, aggressive misogynists and purveyors of hate to distribute their views largely with impunity, while their targets suffer the consequences of this predominantly unregulated arena for speech. . . .

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  January 2, 2012 at 11:36 am   Posted in: Civil Rights, Culture, Current Events, Privacy, Technology   Print This Post   No Comments

Russian Human Rights Council Recommends Quashing Khodorkovsky’s Conviction

posted by Jeffrey Kahn

Just before Christmas, Russian President Dmitrii Medvedev’s Council on the Development of Civil Society and Human Rights recommended that the December 2010 conviction of Yukos-Oil-CEO-now-prisoner Mikhail Khodorkovsky be annulled.  That announcement (unfortunately, only available in Russian, but reported by the BBC, among others) coincides with massive street protests not seen in Russia since shortly before Christmas 1991, when the Soviet Union collapsed. 

The Council’s recommendation was based on a 427-page report on Khodorkovsky’s conviction that the Council gave to President Medvedev.  The report contained the analysis of nine scholars that the Council selected last spring from Russia, Germany, the Netherlands, and the United States.  I was the American contributor.  The report on the Council’s website is in Russian, but you can find an English-version of my portion of the document here. 

The Khodorkovsky case will be the focus of a “hot topics” panel on Friday morning, January 6, at 10:30 at the AALS Conference in Washington D.C.  How does the case relate to the recent protests in Russia?  What does it say about the rule of law in Russia and prospects for reform?  Come to the panel and find out!

  December 31, 2011 at 9:24 am   Posted in: Civil Rights, Courts, Criminal Law, Criminal Procedure, Current Events, Uncategorized   Print This Post   No Comments

Stanford Law Review Online: Don’t Break the Internet

posted by Stanford Law Review

The Stanford Law Review Online has just published a piece by Mark Lemley, David S. Levine, and David G. Post on the PROTECT IP Act and the Stop Online Piracy Act. In Don’t Break the Internet, they argue that the two bills — intended to counter online copyright and trademark infringement — “share an underlying approach and an enforcement philosophy that pose grave constitutional problems and that could have potentially disastrous consequences for the stability and security of the Internet’s addressing system, for the principle of interconnectivity that has helped drive the Internet’s extraordinary growth, and for free expression.”

They write:

These bills, and the enforcement philosophy that underlies them, represent a dramatic retreat from this country’s tradition of leadership in supporting the free exchange of information and ideas on the Internet. At a time when many foreign governments have dramatically stepped up their efforts to censor Internet communications, these bills would incorporate into U.S. law a principle more closely associated with those repressive regimes: a right to insist on the removal of content from the global Internet, regardless of where it may have originated or be located, in service of the exigencies of domestic law.

Read the full article, Don’t Break the Internet by Mark Lemley, David S. Levine, and David G. Post, at the Stanford Law Review Online.

Note: Corrected typo in first paragraph.

  December 19, 2011 at 3:14 am  Tags: banks, credit card companies, DNS, DNS filtering, domain name seizures, domain name servers, domain names, financial institutions, Intellectual Property, Internet, internet security, internet stability, IP, IP addresses, IP rights, online advertisers, PROTECT IP Act, search engine censorship, search engines, SOPA, Stop Online Piracy Act, World Wide Web  Posted in: Current Events, Cyberlaw, First Amendment, Google & Search Engines, Google and Search Engines, Innovation, Intellectual Property, International & Comparative Law, Law Rev (Stanford), Law School (Law Reviews), Movies & Television, Property Law, Social Network Websites   Print This Post   One Comment

On Elevators, Frightened Horses, and Disappearing Types of Tort Claims

posted by Kyle Graham

The other day, a woman was killed in a horrific elevator accident in New York City.  

Happily, this is a rare occurrence, though one that’s well-represented in Torts casebooks.  Over at Point of Law, Ted Frank has blogged before about the dwindling number of accidents that involve elevators.  In his post, Ted cites to a 1926 New York Times newspaper article, which I subsequently dug up, that relates 87 deaths connected to elevators and elevator shafts in 1925—just in the city of New York!  Somewhat comfortingly, however, only 36 of these people were crushed by elevators.  Forty-seven fell into elevator shafts (which is still somewhat traumatic to me, especially after I watched this scene as an impressionable youth), three were killed when elevators fell, and one “fell through a dumbwaiter” (eep).

I don’t know how many of these elevator-related accidents led to tort suits.  A quick online search, however, suggests that these cases were once pretty common.  These suits appear to have percolated in the 1870s and 1880s, and developed into a well-recognized type of case by the 1890s or the early 1900s, at the latest.

This development paralleled the construction of the first wave of high-rise structures in American cities (the first modern “skyscraper,” the Home Insurance Building in Chicago, was built in 1884).   I don’t know if  there’s a causal connection between the proliferation of high-rises and the development of the elevator-suit case type (after all, any multistory building could claim an elevator, and lots of early cases involved apartment buildings and department stores that clearly were not skyscrapers), but it bears mentioning that Illinois, home of many early skyscrapers, produced a large number of appellate decisions involving elevators during this time period; perhaps appellate courts with discretionary jurisdiction in that state decided that these cases were worth hearing, if only because the construction of more high-rise buildings would mean more elevators, and a greater need for appellate precedent to guide the cases that would result from accidents involving these devices.

I’ll go into a little more detail about the disappearance of tort subspecies like the falling-elevator cases, after the jump.

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  December 15, 2011 at 2:16 pm   Posted in: Current Events, History of Law, Tort Law   Print This Post   2 Comments

More “Strikes”: An Unintended Consequence of Realignment?

posted by Kyle Graham

California’s counties are still figuring out how to adjust to “realignment,” the name given to the state’s efforts to comply with the judicial decree, upheld in Plata v. Schwarzenegger, that demands a reduction in the number of prisoners incarcerated in state prison.

Under one prong of this adjustment effort, many yet-to-be-sentenced convicts who once would have gone to state prison will serve their time in local jails, instead. As a general rule, defendants convicted of “serious” or “violent” felonies—also known as “strikes”—remain eligible for prison. (So do most sex offenders.) This dynamic begs the question: might realignment result in more “strike” convictions?

Here’s why this might occur:

1) While the state is footing some of the costs associated with realignment, no one knows if these payments will fully offset the costs of housing a prisoner in local jail. Meanwhile, the state is guaranteed to foot the bill if a defendant goes to state prison.

2) Furthermore, local judges and district attorneys might be loathe to clog up their jails with prisoners who will be taking up space there for several years, as might be the case post-realignment. Among the reasons why, a substantial body of long-term occupants may make it more difficult to accommodate the daily ebb and tide of short-term detainees.  Plus, some judges and district attorneys may have a lingering sense that some defendants who historically would have gone to prison should still go to prison, which now may occur only if the defendant is convicted of a strike.

3) In many cases, district attorneys have substantial discretion whether to allege, and insist upon a conviction for, a “strike.” For example, under California law, assault with force likely to produce great bodily injury is not, by itself, a strike. However, assault with force likely to produce great bodily injury that does produce great bodily injury is a strike. The threshold that caselaw and legislative history set for “great bodily injury” is not as high as one might think; on the right (or, depending on your perspective, wrong) facts, a broken jaw may suffice. Appreciating that the low bar for this “strike” may lead to disproportionate punishment, district attorneys sometimes choose not to allege a great bodily injury enhancement even when it would be justified. In other cases, prosecutors agree to dismiss the enhancement as part of a plea deal.

Put these facts together, and it seems at least possible that realignment will spur local district attorneys’ offices to charge “strikes” more often, and to insist upon more “strike” convictions in plea negotiations.  (Somewhat similar dynamics also may cause local judges to “strike” [which essentially means to remove, for sentencing purposes] prior strikes less often.)  I don’t know that this will occur, but it seems like a conceivable, if unintended, outcome.

If this result obtains, one response might be to think harder about requiring counties to foot at least some of the bill for the incarceration of the defendants they send to state prison. My colleague David Ball suggests as much in his recent paper Tough on Crime (on the State’s Dime): How Violent Crime Does Not Drive California Counties’ Incarceration Rates —And Why it Should, which provides an interesting take on the subject.

  December 11, 2011 at 11:39 am   Posted in: Criminal Law, Criminal Procedure, Current Events   Print This Post   No Comments

Barry Bonds: The Likely Sentence

posted by Kyle Graham

Yesterday, federal prosecutors asked that Barry Bonds be sentenced to 15 months in prison, following his conviction on one charge of obstruction of justice (18 U.S.C. § 1503). A probation officer has recommended that Bonds receive only probation, and Bonds himself (understandably) agrees with the officer’s assessment.  How realistic are these respective sentencing requests?

We’ll start with the relevant Sentencing Guideline for obstruction of justice (USSG § 2J1.2), which recommends a sentence of 15-21 months for a first offender, such as Bonds.  These Guidelines are only advisory (though extremely important), of course; ultimately, the governing text is 18 U.S.C. § 3553(a), which enumerates the factors to be considered in the formulation of a criminal sentence.

I won’t go through those factors here. Instead, I’ll relate what other defendants, arguably similarly situated to Bonds, have received in recent cases. Here, I sifted through data collected by the Administrative Office of the United States Courts for FY 2003 – FY 2007, which I compiled into a single database for another project a while back. (For full citations of these datasets, please go to footnote 119 here.)

The AOUSC data capture any and all criminal cases that terminated in federal district court between October 2002 and September 2007, providing a wealth of information regarding each matter. I separated out from this mass of data the handful of cases that entailed a single conviction under 18 U.S.C. § 1503, without any convictions for other offenses. The data do not relate whether the defendant in each of these cases was sentenced as a first offender, or not; nor do they indicate whether any departures or enhancements applied in a particular case. But they do reveal the sentence that was imposed in each matter.

What I found was that 30 of the 83 defendants whose cases terminated within this time frame and who were arguably similarly situated to Bonds, in that they were convicted upon plea or guilty verdict at trial of a single count under 18 U.S.C. § 1503, received only probation (and, in some cases, a fine) as their sentences. The remaining defendants received prison time, with the median term being 24 months (again, some of these defendants were almost assuredly not first offenders, accounting for the longer sentences). The prison sentences were quite spread out, such that they did not form a bell curve; no more than five defendants received any specific term. Of these, five defendants received five-month terms, five received 12-month terms, and another five received 18-months terms.

So, if these numbers are any guide (which, I concede, they may not be), it looks like Bonds has a pretty good argument for probation.

  December 9, 2011 at 1:14 pm   Posted in: Courts, Criminal Law, Criminal Procedure, Current Events   Print This Post   No Comments

Corpses, Families, and Property Rights

posted by Kyle Graham

The Washington Post has reported how the incinerated partial remains of many American soldiers were dumped in a Virginia landfill. I’m not an expert on Virginia law, the Federal Tort Claims Act, or the Feres doctrine, and so I have no idea if the close relatives of these soldiers have viable claims for the negligent infliction of emotional distress (though if any commenters want to weigh in with their informed opinions, I’m all ears), and if so, against whom. What I do know, however, is how these claims likely would have been handled a century ago, had the government not been the defendant.

Back then, close family members of a decedent were regarded as having a property right in the corpse of their loved one. If the corpse had been improperly handled, they could sue and recover for infringements of this right. Unauthorized dissections, autopsies, and burials at sea provided the grounds for most of these lawsuits.

It sounds strange, today, to say that someone has a property right in someone else’s corpse. It sounded strange then, too, but the property right was a legal fiction that functioned as a work-around to avoid the then-prevailing general bar against recovery for “pure” negligent infliction of emotional distress.

Since the barriers against these recoveries have fallen (to a degree), the need for a separate corpse-mishandling tort has more or less disappeared. Just as it is slowly ushering of the tort of insult out the door, the Second Restatement of Torts half-heartedly relates a distinct rule for corpse-mishandling claims (at section 868, which provides, “One who intentionally, recklessly or negligently removes, withholds, mutilates or operates upon the body of a dead person or prevents its proper interment or cremation is subject to liability to a member of the family of the deceased who is entitled to the disposition of the body”), but the drafters also observe that the cause of action is really one for emotional distress.  Underscoring the tort’s tenuous status, a tentative draft of the Second Restatement noted that it was “probably” desirable to maintain the separate treatment of corpse mishandling claims, “at least for this Restatement.”

(I promise to avoid connecting the news of the day with ancient tort theories from this point forward in my guest-blogging stint.  Unless, that is, Jennifer Aniston finally gets around to filing an alienation of affections lawsuit against Angelina Jolie, some celebrity gets sued for champerty, or Donald Trump finds himself on the receiving end of an ancient lights claim.)

  December 8, 2011 at 1:05 pm   Posted in: Current Events, Tort Law   Print This Post   No Comments

Erin Andrews and Insult

posted by Kyle Graham

Some of you may have seen that ESPN reporter Erin Andrews recently re-filed her civil lawsuit against a Nashville, Tennessee hotel for negligence and invasion of privacy. This lawsuit follows upon the surreptitious videotaping of Andrews by one Michael Barrett, named as a co-defendant in the case. Barrett has since been convicted of stalking, and has been sentenced to more than two years in prison.

In her complaint, Andrews alleges that the hotel acted negligently in at least three respects: it informed Barrett which room she was occupying, it allowed him to rent an adjoining room, and then it failed to discover that Barrett had altered the peephole of her door so as to allow his videotaping.

Do these facts, if shown, state a case for the jury?  Probably.  The closest case on point I could find (and I’ll admit, I didn’t look all that hard) is Carter v. Innisfree Hotel, Inc., a 1995 decision by the Alabama Supreme Court.  Addressing a lawsuit brought against a motel by two former guests, the Carter court found that triable issues of fact existed under both invasion of privacy and negligence theories after the plaintiff couple (1) reported that they heard suspicious noises emanating from a wall, (2) had sex, and then (3) later discovered, behind a mirror on the wall, a hole that could have been used to spy on them while they were fooling around.

Perhaps more interesting (at least to me; hey, I’m a law professor), in addressing the plaintiffs’ negligence cause of action, the Carter court relied heavily on old decisions that involved claims sounding in the archaic, now-moribund tort of insult. Insult cases were somewhat common a century ago. They are almost unheard-of today, at least as a cause of action distinct from negligence or intentional infliction of emotional distress (more on that below).

Back around 1900 or so, a claim for insult might lie when a railroad conductor in the Deep South directed a Caucasian passenger to a passenger car reserved for African-Americans; when a streetcar employee allowed a female customer to be harangued by her fellow passengers; or when a hotel detective spied on guests. The common facts being (1) a common carrier or innkeeper defendant, and (2) conduct that, while offensive given the place and time, did not have to rise to the level of outrageousness that we associate today with a viable claim for intentional infliction of emotional distress.

As I discussed a while back, insult disappeared as a distinct cause of action in part because much of its conceptual space came to be absorbed by negligence and the “new” tort of intentional infliction of emotional distress; it was basically caught in a no-man’s-land between these two expanding theories of liability. (Plus, maybe we’re simply more used to rude treatment by common carriers these days.)  The insult tort earned separate mention in the Restatement (Second) of Torts (at section 48, titled “Special Liability of Public Utility For Insults By Servants”), but just barely; today, it’s pretty much extinct as a distinct cause of action.  Instead, facts that once might have given rise to a cause of action for insult are now analyzed under generic negligence  or intentional infliction of emotional distress principles.

What does this mean for Erin Andrews, and her lawsuit?  Not a whole lot, I suppose.  At most, the existence of the cause of action and its echo in modern precedent underscore the heightened responsibilities of hotels and innkeepers, even under negligence doctrine.  But given all of the other interesting aspects of her case, it would almost be too much for an archaic tort theory to also be in the mix.

  December 7, 2011 at 10:30 pm   Posted in: Current Events, Privacy, Tort Law, Uncategorized   Print This Post   2 Comments

AALS “Hot Topics” Program: Russia’s “Dictatorship of Law”

posted by Jeffrey Kahn

I am glad to announce that the AALS Committee on Special Programs selected my proposal as a “Hot Topics” panel for the 2012 AALS Annual Meeting in Washington D.C. next month.  The program is called: “The Dictatorship of Law: The Khodorkovsky Case, Human Rights, and the Rule of Law in Russia.”  William Pomeranz, Deputy Director of the Kennan Institute for Advanced Russian Studies at the Woodrow Wilson International Center for Scholars, will chair a panel that includes Kim Lane Scheppele (the University of Pennsylvania and Princeton), Bruce Bean (Michigan State University), Christopher Bruner (Washington and Lee University), Alexei Trochev (Nazarbayev University) and me.  The program will begin at 10:30 on Friday morning, January 6. 

Below is a description of the panel, which will occur (as perhaps a “hot topic” should) between two central events on the Russian calendar: the surprising results of yesterday’s parliamentary elections in Russia and presidential elections scheduled for March 4 that (at least until yesterday) everyone was saying would be certain to return now Prime Minister Vladimir Putin to the presidency currently held by his protégé, Dmitrii Medvedev.

During his first campaign for President of Russia in February 2000, Vladimir Putin defined democracy as a “dictatorship of law.”  This was meant to signal a shift away from the perceived lawlessness of his immediate predecessor’s governance, and to feed the nostalgia for Soviet-era stability.  As Putin starts his gambit to return to the Russian presidency, this panel examines which half of that slogan will dominate the other.  Recent developments in the most well-known case in the courts of both Russia and the Council of Europe present an opportunity to do so at a pivotal moment not only in that case but for the future of the rule of law in Russia.

Mikhail Khodorkovsky was the CEO of the Yukos Oil Company and the richest man in Russia when in 2003 he and his business partner, Platon Lebedev, were arrested and charged with crimes connected to Yukos, Russia’s most profitable and well-known private corporation.  They were convicted of fraud, causing property damage by deceit or breach of trust, and tax evasion and sentenced to eight years in prison.  Yukos was seized and sold to state-controlled companies.  In December 2010, as their sentences drew to a close, Khodorkovsky and Lebedev were convicted by another court of embezzlement and money-laundering, charges arising out of the same time period and concerning the same corporate activities that were the basis for the first conviction.  On the eve of that verdict, Prime Minister Vladimir Putin informed a nationwide television audience that “a thief should sit in jail,” a reference to a well-known Soviet mini-series that would have been quite familiar to viewers (the quote continues: “… and people don’t care how I put him away.”).  In midsummer 2011, a Russian court upheld the verdict, extending the defendants’ sentences until 2016. 

A bit more on the tension this case embodies for Russian law and human rights after the break …

Read the rest of this post »

  December 5, 2011 at 11:33 am   Posted in: Corporate Law, Corruption, Courts, Criminal Procedure, Current Events, Law School, Uncategorized   Print This Post   3 Comments

The Income-Level Value of Higher Education

posted by Daniel Solove

There have been many attacks on higher education lately, some justified but some unjustified.  Some  are questioning whether higher education — both undergraduate and graduate education — is worth it.  Much of these discussions speak about the value of education almost exclusively in terms of the money stream it will produce.  Of course, there are many other values of education beyond this instrumentalist reason.   Knowledge is a good in and of itself.

But if we measure education based on the income stream it will generate, the evidence is that it does correlate strongly with higher income.   A recent Gallup poll reveals statistics about the strong correlation between higher education and income:

More generally, college education is strongly correlated with household income. Nine percent of Americans earning less than $20,000 per year are college graduates; this rises to majorities of adults in all income groups above $100,000. Similarly, few adults in low-income households have postgraduate education, and this rises only into the teens among middle-income adults. But it sharply increases among those earning $100,000 or more, peaking at 49% among those earning between $250,000 and $499,000, and those earning at least half a million.

The educational differences between the nation’s “1%” and “99%” exceed all other demographic as well as political differences seen between these groups in the Gallup data.

This chart summarizes some of the data in the poll:

 

 

  December 5, 2011 at 9:58 am   Posted in: Current Events, Law School   Print This Post   2 Comments

Law Professors, Petitions and Kristallnacht

posted by Kyle Graham

Not long ago, I was asked to sign a petition, circulating among law professors, that condemns the recent pepper-spraying of protesters at the University of California-Davis. This invitation rekindled my interest in the origins of these petitions.

Law professors qua law professors have become engaged in topical public controversies since the early 1900s. Some law professors spoke out about the Sacco-Vanzetti trial, and many professors took well-publicized positions on Franklin Roosevelt’s court-packing plan. I am unfamiliar with any widely distributed petition as to either event, however. (Although the AALS did initiate, only to abandon, a poll of law faculties designed to gauge their support or opposition to FDR’s plan.)

The first petition I have found that specifically requested the support of American law faculties circulated almost exactly 73 years ago, in early December 1938. This petition was prepared and distributed by telegram shortly after the Kristallnacht pogroms, and read as follows:

Faculty of Law [Institution, Location]

The Faculty of Law of the University of Amsterdam invites you kindly to inform them by telegram before December ten whether your Faculty of Law would be willing to second the following resolution. The invitation being wired today to all Faculties of Law in the British Empire, United States of America, France, Netherlands, Belgium, Switzerland, Finland, Denmark, Sweden, Norway, Iceland. The Faculties of Law of the Universities mentioned below noting with sorrow and dismay that in some countries innumerable people are being persecuted and tormented on account of their faith, race or political convictions and that particularly in the so called Concentration Camps innocent people are without legal procedure subjected to inhuman treatment considering that the basic principles of justice are thus insufferably violated voice their protest against this violation in view of their duty to uphold the principles of justice and the rights of man appeal to the conscience of mankind to support them in this protest and decide to publish this resolution and to communicate it to their respective governments.

The telegram, which on its face requested the support of each contacted institution (as opposed to the endorsement of individual professors) met with a range of responses. Some American law faculties (including those at Yale, the University of Chicago, the University of Michigan, the University of California-Berkeley, and the University of Colorado) signed on to the petition. At Harvard, it was agreed that individual professors could endorse the petition, if they so chose, but that no such backing would come from the general faculty, speaking as a whole and for the institution generally.

Today, it’s assumed that individual professors, as opposed to the institutions where they work, represent the proper signatories of a petition such at the one circulated by the University of Amsterdam law faculty. Were assumptions different, one presumes that there would be a lot fewer petitions in circulation. Plus faculty meetings would become much longer.

  December 2, 2011 at 4:09 pm   Posted in: Current Events, History of Law, Legal Ethics, Teaching   Print This Post   No Comments

The Court, Spending, Federalism, Medicaid, and Other Minor Stuff

posted by Nicole Huberfeld

My thanks to Angel, Dan, and the rest of the regulars at CoOp for the invitation and the introduction.  I am delighted to be guest blogging, especially at a time when my fields of interest are overflowing with developments.  Everyone has been talking about the Commerce Clause questions raised by the minimum coverage provision of the Patient Protection and Affordable Care Act (“PPACA”).  I too have been avidly following this litigation, but because I study (among other things) Medicaid as a vehicle for constitutional change – and that phenomenon is happening right now.  The Court will decide two high-profile Medicaid cases this term, each of which has the potential to facilitate major movement in structural constitutional law.  Oral arguments were heard in the first case, Douglas v. Independent Living Center of Southern California, on October 3d.  The second case, Florida v. HHS, will be heard in the spring. 

I try not to assume that folks know a lot about federal healthcare programs with their layer cakes of complexity; to wit, a justice said during oral argument, “Suppose there were a provision in the Medicaid or Medicare Act… I get the two of them confused.”  (Ahem.)  So, I will begin with a bit of background that I hope will help to illuminate the two cases before the Court.  Later posts will explore Douglas and Florida v. HHS and their implications for conditional spending jurisprudence, federalism, and Medicaid itself more directly. 

Medicaid is a forty-six year old spending program that provides federal money to the states in exchange for states agreeing to provide particular medical services to the “deserving poor.”  Medicaid has been described as a classic example of cooperative federalism, but the program is structured this way for historic rather than philosophical reasons (which I detail in Federalizing Medicaid).  States were responsible for welfare programs since our founding, and when they could no longer afford to provide welfare medicine, they asked the federal government for money to help care for the deserving poor.  The federal government responded with almost conditionless grants to the states through the Social Security Act of 1935.  Over time, the states asked for more money, and the federal government provided it, but each amendment to the SSA included more and broader rules for the federal funds to ensure they were being used properly.  Fast forward to 1965 and the passage of Medicare, with Medicaid in tow.  While Medicare was grounded philosophically in social insurance (but only for people 65 and older), Medicaid continued the old patterns.  Indeed, the elderly convinced Congress not to allow Medicare to be a joint program between the federal government and the states.  So, Medicaid is a cooperative federalism partnership between the federal government and the states, but not because it was thoughtfully constructed that way.  And, this partnership seems to have fostered more disagreement than cooperation between the federal government and the states.

Why does this matter?  A number of reasons.  PPACA’s expansion of Medicaid is a major philosophical change in the program because it eliminates the idea of the deserving poor for the first time in our history.  But, the tensions between the federal government and the states are very much alive and on display before the Court.  Douglas involves a challenge to California’s Medicaid reimbursement rate reductions under the Supremacy Clause, and it raises questions regarding the nature of spending legislation, access to federal courts, private rights of action against the states, and Medicaid’s very aspirations.  Florida v. HHS challenges the institutional structure of Medicaid (the federal-state partnership) and thus raises major spending questions and federalism questions, including the ever-elusive idea of “coercion.”  The kicker: it has been clear for some time that certain justices were eager to decide these questions. 

 

  December 1, 2011 at 12:06 pm  Tags: Constitutional Law, Current Events, health care  Posted in: Constitutional Law, Current Events, Health Law, Supreme Court   Print This Post   One Comment

Starr and Greenberg File Fiduciary Case Against FRBNY After AIG Takeover

posted by Lawrence Cunningham

In September 2008, at the depth of the financial crisis, the U.S. Government arranged for control of the American International Group to be lodged in the Federal Reserve Bank of New York.  With that power, FRBNY for two years caused AIG and its board and top managers to engage in a series of deals that, to AIG shareholders, were designed more to benefit the financial system and other financial institutions than AIG. 

As AIG’s controlling shareholder, FRBNY thereby breached its fiduciary duties to AIG and its other shareholders, charges a complaint filed in Federal court in Manhattan.  The complaint, filed by AIG’s largest private shareholder, Starr International and its CEO Maurice (“Hank”) Greenberg, was drafted by David Boies (Boies, Schiller & Flexner) and John Gardiner (Skadden Arps). It accompanies the commencement of a parallel case filed in the Federal Court of Claims against the United States under the takings clause of the Fifth Amendment. Following are some excerpts from the complaint against the FRBNY. Read the rest of this post »

  November 21, 2011 at 1:57 pm   Posted in: Corporate Law, Current Events   Print This Post   No Comments

Starr and Greenberg FileTakings Claim in AIG Takeover

posted by Lawrence Cunningham

When the federal government seized control of American International Group at the depths of the financial crisis in 2008, officials commandeered nearly 80% of the company’s equity in exchange for what were nominally called “loans”, without ever obtaining a shareholder vote or paying shareholders compensation for the seizure.  The government treated all other financial firms far more favorably, even using some of the “loans” to secretly bail out other financial institutions.  The government never conducted a valuation of the assets it commandeered. 

To owners of AIG stock, this amounts to a taking in violation of their Fifth Amendment rights, according to their class action lawsuit against the United States in the  U.S. Court of Federal Claims. The complaint, filed by AIG’s largest private shareholder, Starr International and its CEO Maurice (“Hank”) Greenberg, was drafted by David Boies (Boies, Schiller & Flexner) and John Gardiner (Skadden Arps).  The suit seeks at least $25 billion in damages. 

Pivotal paragraphs from the complaint read as follows:

10. The Government is not empowered to trample shareholder and property rights even in the midst of a financial emergency. The Fifth Amendment . . . directs that the Federal Government shall not deprive any person of “property without due process of law” and forbids the Government from appropriating private property “for public use, without just compensation.”

11. [A]lthough public policy goals may justify the taking of private property to serve public ends, when the Government does so it is required by the Constitution to ensure that the property is acquired in accordance with law, that the burdens associated with the taking are not imposed in a disparate and unfair manner, and that just compensation is paid. . . .  As Justice Holmes long ago admonished, “a strong public desire to improve the public condition is not enough to warrant achieving the result by a shorter cut than the constitutional way of paying for the change.”

13. The Government’s actions were ostensibly designed to protect the United States economy and rescue the country’s financial system. Although this might be a laudable goal, as a matter of basic law, the ends could not and did not justify the unlawful means employed by the Government to achieve that goal. Even in exigent times, and perhaps most especially then, the Government may not ignore basic protections afforded under the United States Constitution or disregard established legal rights.

A few additional paragraphs laying out the factual basis for the claim follow. Read the rest of this post »

  November 21, 2011 at 12:45 pm   Posted in: Constitutional Law, Corruption, Current Events   Print This Post   No Comments

Speaking Out About Sexual Abuse

posted by Gerard Magliocca

I have always admired Mark McKenna’s work on intellectual property.  Indeed, he has occasionally commented on this blog. Now I also admire his courage.

  November 19, 2011 at 9:11 am   Posted in: Current Events   Print This Post   No Comments

The DC Circuit Upholds the Individual Mandate

posted by Gerard Magliocca

In a 2-1 opinion by Judge Silberman.

  November 8, 2011 at 12:40 pm   Posted in: Current Events   Print This Post   One Comment

Post-Soviet Russia: Just Like 15th Century England?

posted by Jeffrey Kahn

Yesterday I noted that I would blog a bit this month about the rule of law in Russia.  Today’s Wall Street Journal carries a front-page feature article by Guy Chazan that offers a rare look into the world of Russia’s oligarchs.  I’m interested in the fate of Mikhail Khodorkovsky, once Russia’s richest man, now its most famous prisoner.  Chazan’s story focuses on two more oligarchs: Boris Berezovsky and Roman Abramovich.

The collapse of the Soviet Union led to a decade in which vast fortunes could be made in the chaos of the new Russia.  These men (and they were all men) built empires from scratch on unstable legal foundations in the rubble of post-Soviet society.  The strength or permanence of the law didn’t matter much to the oligarchs; indeed, they relied on its weakness to amass their wealth.

Now that those empires need protecting, however, it is to law that the oligarchs turn.  Berezovsky, once the éminence grise behind Boris Yeltsin, now lives in luxurious self-imposed exile in London.  The WSJ reports that he is worth about $750 million.  Abramovich owns the Chelsea Football Club and the world’s largest yacht; his worth is estimated at about $16.5 billion.  Berezovsky has sued Abramovich for $6 billion, alleging that the latter violated oral agreements about various oil and metal companies in Russia.  Berezovsky claims he left his stake in them in Abramovich’s hands after he fled to London to escape the wrath of then President Vladimir Putin.

According to Abramovich’s attorney, Jonathan Sumption, there is nothing to this claim.  The dispute arose, he says, in a “society without law,” and the deal the two men made was itself “corrupt.”  That might seem like a strange legal defense but, as Sumption continued, “the reality was that that was how business was done in Russia at the time.” 

The case is being heard at London’s High Court.  To help the judge understand the millieu in which the oligarchs did business, Sumption told the court: “In our own national experience, we have to go back to the 15th century to find anything remotely comparable.” 

Maybe.  But the average Russian citizen observing this legal squabble might note that 15th century England had something that 21st century Russia lacks: Robin Hood.

  November 7, 2011 at 11:16 pm   Posted in: Corruption, Courts, Current Events, International & Comparative Law, Uncategorized   Print This Post   No Comments

The Prince of Wales

posted by Gerard Magliocca

Since CoOp is the place for the latest royal news, I thought I’d pass along the gist of a recent report in the British media that Prince Charles must be consulted on any Act of Parliament that might adversely affect his personal interests.  You probably know that the Queen retains the formal right to veto legislation (though that hasn’t happened in over 300 years), but a more obscure custom holds that the heir to the throne can issue a similar nay for a law that touches on his land holdings (estimated to be worth over $1 billion).  Since 2005, he has been consulted by ministers on at least 12 bills.  According to the Guardian, some recent examples include  ”bills relating to coroners, economic development and construction, marine and coastal access, housing and regeneration, energy and planning.”  Whether the Prince demanded and got changes in this legislation is not known because all communications between the Government and the Royal Family are confidential.  And you thought that he did nothing but play polo.

Thanks to my friend Tom Shakow for pointing this story out to me.

 

 

 

  November 3, 2011 at 11:31 am   Posted in: Current Events, Uncategorized   Print This Post   No Comments

Don’t Make the Justices Angry

posted by Gerard Magliocca

This account of oral argument from Tuesday is, as Larry David might say, pretty, pretty, pretty, harsh.

  November 1, 2011 at 10:33 pm   Posted in: Current Events   Print This Post   7 Comments

An Anthem for OWS?

posted by Timothy Zick

The ”Occupy” movement, which started in September, made this an esepcially timely guest visit for me.  My thanks to Danielle for inviting me, to the CoOp regulars for allowing me to make use of their terrific forum, and to those who commented on my posts. 

I’ll close with this:  If “I Am America,” sung by Krista Branch, is a plausible Tea Party “anthem,” then what anthem might be appropriate for OWS?  If, as Frank Pasquale has observed, there is considerable substantive overlap between these movements, might this be an anthem for both? 

The lyrics:

Pay no attention to the people in the street
Crying out for accountability
Make a joke of what we believe
Say we don’t matter ’cause you disagree
Pretend you’re kings, sit on your throne
Look down your nose at the peasants below
I’ve got some news, we’re taking names
We’re waiting now for the judgment day

[Chorus]
I am America, one voice, united we stand
I am America, one hope to heal our land

There is still work that must be done
I will not rest until we’ve won

I am America

You preach your tolerance, but lecture me
Is there no end to your own hypocrisy
Your god is power, you have no shame
Your only interest is political gain

You hide your eyes and refuse to listen
You play your games and abuse the system
You stuff your pockets while Rome is burning
I’ve got a feeling that the tide is turning

[Chorus]
I am America, one voice, united we stand
I am America, one hope to heal our land

I will not give up on this fight
I will not fade into the light, I am America

[Bridge]
You stuff your pockets while Rome is burning
I’ve got a feeling that the tide is turning

[Chorus]
I am America, one voice, united we stand
I am America, one hope to heal our land

I will not give up on this fight
I will not fade into the night, I am America

 

  October 27, 2011 at 4:07 pm   Posted in: Current Events, Uncategorized   Print This Post   5 Comments

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