ACSBlog

  • January 22, 2016

    by Jim Thompson

    On Thursday, the U.S. Court of Appeals for the D.C. Circuit denied a stay of the Obama administration’s Clean Power Plan, preserving power plant carbon emissions regulations even as states mount challenges to the rule, report Brent Kendall and Amy Harder at The Wall Street Journal.

    The Editors at the Corporate Crime Reporter highlight the work of Public Justice Chairman Arthur Bryant to hold Remington accountable for selling a popular firearm with a dangerous defect.

    In The Global Legal Post, ACS Board member Reuben Guttman examines the spectacle of the presidential election and notes that “the next president will have the ability to make appointments tipping the balance of the judiciary including the Supreme Court.”

    The Maryland House of Delegates overrode Gov. Larry Hogan’s veto of a measure that would allow former felons to vote upon being released prison as opposed to after the completion of probation or parole, says Pamela Wood at The Baltimore Sun.

    In The Washington Monthly, Nick Warshaw, president emeritus of the UCLA Law Student Chapter and an ACS Next Generation Leader, writes about a way to counter the corrosive effects Super PACs are having on our elections. 

  • January 21, 2016
    Guest Post

    by Eric J. Segall, the Kathy and Lawrence Ashe Professor of Law, Georgia State University College of Law

    Texas’ lawsuit against the Obama administration over its proposed new immigration regulations adds one more important public policy issue to the Court’s term which already has abortion, affirmative action, voting rights, and freedom of speech and religion on its agenda. This battle over immigration policy, however, does not belong in federal court because Texas should not be allowed to turn what is essentially a political controversy between Republicans and Democrats over immigration reform into a federal case.

    The Supreme Court has long required every plaintiff in federal court, including individuals, corporations, and the states, to suffer a personal injury caused by the defendant that can be redressed by the Court. This requirement of injury, known as standing, is a constitutional prerequisite to jurisdiction that cannot be waived by the parties or the Court. The Justices have repeatedly said that standing is necessary to maintain the appropriate separation of powers between unelected, life tenured federal judges and the elected branches of government.

    President Obama’s new immigration regulations, collectively known as DAPA, seek to change the immigration status of approximately four million undocumented aliens who are parents of children who are either legal citizens or legal resident aliens. Texas argues that only Congress has the power to alter the legal status of those immigrants.

    Texas may disagree strongly and sincerely with the President’s policy and/or think such a policy is illegal, but it may only challenge that policy in federal court if it has suffered an injury sufficient to satisfy the Court’s standing doctrine. The primary injury Texas has alleged in this lawsuit is that it will incur increased expenses because, once the regulations go into effect, Texas will feel obliged to provide driver’s licenses at reduced costs to some people with altered immigration status under DAPA. Yet, nothing in DAPA implicates the manner in which Texas provides driver’s licenses to its citizens. The proposed regulations leave all issues relating to Texas driver’s licenses, including their costs, up to Texas.

    Texas also argues that, even though it has the final decision on whether to grant driver’s licenses to DAPA beneficiaries, the need to change or reconsider its current policies gives it sufficient injury to support its lawsuit. Texas also argues that it will incur additional expenses in a host of different ways including “healthcare, law-enforcement, and education costs,” if DAPA goes into effect.

    Texas’ argument fails to support standing because it would allow any state to sue the federal government every time either Congress or the president increases or decreases the number of legal immigrants in this country.  Whenever the federal government changes immigration requirements, both the states’ expenses (in terms of its services) and revenues (through taxes now collected from more legal residents) “may” go up or down. But changes in Texas’ public policy because of those shifts remain completely up to the State of Texas.

    If the states could sue the federal government every time either Congress or the president passes legislation that alters how Texas manages its own public policy due to the number of people lawfully in the state, virtually all federal policy (beyond immigration law) will be transferred from elected officials to federal judges. The very purpose of the standing doctrine is to prevent that transfer of power.

    Texas relies on the Court’s 5-4 decision in Massachusetts v. EPA where the justices allowed Massachusetts to challenge decisions made by the EPA relating to global warming which allegedly harmed the coastline in that state. But, in that case Massachusetts asserted that its own sovereign property was being damaged by allegedly illegal federal policies. In this case, Texas remains sovereign over all of its internal policies and all of its property.

  • January 21, 2016
    Guest Post

    by Colleen V. Chien, Associate Professor of Law, Santa Clara University School of Law, former White House Senior Advisor on intellectual property and innovation; and Michael Risch, Professor of Law, Villanova University School of Law

    *This post is part of the ACSblog Symposium on Patent Law Reform.

    Although patent reform is not a partisan issue, it has divided those who write and think about the patent system for a living. Earlier this year, 51 law and economics professors wrote a letter to Congress pointing to the “large and increasing body of evidence” supporting legislative patent reform. Weeks later, 40 professors shot back, expressing “deep concerns with the many flawed studies.” We aren’t saying who was right, because one of us signed the second letter and the other authored a number of the contested studies. One of us joined the Obama administration to support patent reform, the other opposes it.

    But there is one issue upon which we — and most stakeholders — agree: The staggering concentration of patent cases in just a few federal district courts is bad for the patent system. We believe that changing where patent lawsuits can be filed will solve many of the problems in the debate.

    Last year, more patent cases (44 percent to be exact) were initiated in the Eastern District of Texas than anywhere else, as the following chart shows.

                                 

    Under a 1990 federal circuit court ruling, defendants can be sued in any district where they sell their products, which is basically anywhere. According to a forthcoming paper by Professors John Allison (University of Texas at Austin), Mark Lemley (Stanford) and David Schwartz (Northwestern), non-practicing entities — pejoratively referred to as “patent trolls” — bring a majority of the patent cases decided in the Eastern District of Texas. The issue is not limited to trolls, however: Kraft Foods is a plaintiff in Delaware in a current case on this issue.

  • January 21, 2016
    Guest Post

    by James C. Nelson, Justice, Montana Supreme Court (Retired)    

    On the sixth anniversary of Citizens United v. Federal Election Commission, one of the most far reaching and pernicious decisions ever handed down by the Supreme Court of the United States, it is important to review the past in order to chart our future.

    Recall that on January 21, 2010, the Court’s decision in Citizens United ushered in the unprecedented use of dark, individual and institutional mega-money expenditures to influence elections and, effectively, to silence the voices of individual small contributors and ordinary voters. The Supreme Court’s approach in Citizens United, and in subsequent court cases ‒ McCutcheon v. FEC, for example – have chipped away at expenditure and contribution limits imposed by Congress and the states upon individuals, corporations, unions, special interests groups, nonprofits and trade associations.

    Citizens United has resulted in hundreds of millions of dollars pouring into elections with little or no disclosure of the source of funding and with little, if any, accountability for the truth and accuracy of the information and messages promulgated. Indeed, candidates are being “marketed” to voters in the same fashion that fast food and pharmaceuticals are hawked to consumers. To quote Warren Susman, we have changed from a culture of character into a culture of personality.

    Focus, for a moment, on one of the most glaringly ridiculous premises of the Court’s decision. According to the Citizens United majority, contributions paid directly to a candidate breed corruption quid pro quo—in other words, I give you money; I buy your vote. Back in the day, it was called bribery. However, that same majority decreed that expenditures made on behalf of a candidate do not have any such corruptive effect because the individual or entity expending the money is simply providing the public with information about a candidate or issue.

  • January 21, 2016
    Guest Post

    by Ron Fein, Legal Director, Free Speech for People

    Six years after the Supreme Court’s Citizens United v. FEC decision, it’s time for campaign finance reformers to move from defense to offense—in the courts.

    Since Citizens United struck down limits on corporate and union political spending, the Court has further chipped away at federal and state campaign finance laws in areas such as per-person overall contribution limits and effective public financing in elections with big-money candidates. These decisions have led to a growing popular movement to amend the Constitution to overturn Citizens United and the doctrines that led to it. They have also led to a florescence of innovative thinking from scholars and advocates on money in politics, corporations, and democracy.

    We have the foundation for a new jurisprudence ready for courts to adopt. And we have evidence of how big money in politics causes real harm to Americans’ wallets, justice system, environment, and even quality standards for children’s surgery.

    Now it’s time to move away from a position of indefinite defense, where James Bopp sets the legal agenda. It’s time to develop game-changing affirmative impact litigation challenging the role of big money in politics. It’s time to stop being amici in support of defendants and start being plaintiffs.

    Of course, we should be strategic in identifying the most likely avenues for success in the medium term. One area is state judicial elections, where the campaign finance reform position has won twice in a row at the Supreme Court, in cases stemming ultimately from concerns about judicial impartiality. Professors Erwin Chemerinsky and James Sample have argued that the due process implications of campaign spending in judicial elections justify a constitutional analysis quite different from legislative and executive elections.

    Another promising area involves challenging super PACs, the contribution-limit-evading mechanisms created by SpeechNow.org v. FEC, a D.C. Circuit decision that moved well beyond what the Court actually decided in Citizens United. Professors Laurence Tribe and Albert Alschuler have argued that the Supreme Court may be ready to overrule the court of appeals even while holding fast to Citizens United. Finally, we need to think beyond federal court and develop innovative cases based on state constitutions.