“Justice Scalia’s Telecommunications Legacy”

Antonin Scalia’s work on telecommunications deregulation before he became a judge is not one of the more widely known parts of his career, but as director of a White House office on telecom policy in the 1970s he played a key role in promoting removal of old legal barriers to competition and innovation, which in turn laid the groundwork for the emergence of modern online data, voice, and entertainment delivery. This panel discussion at the Federalist Society Lawyers National Convention features Henry Goldberg, Richard Wiley, and Prof. Richard Epstein, with Texas Justice Don Willett moderating. At the very end of the Q&A period I ask a question from the audience, resulting in an exchange with Richard Epstein in which we reminisce about Scalia’s time as editor of Regulation magazine.

Labor and employment roundup

  • “Apprenticeships: Useful Alternative, Tough to Implement” [Gail Heriot, Cato Institute Policy Analysis]
  • “Hiring Without Headaches – A Possibility or Fantasy?” [Daniel Schwartz on President Obama/Stephen Colbert “job interview”]
  • Employee misclassification as ULP: Obama NLRB “is now basically creating unfair labor practices out of thin air” [Jon Hyman]
  • In the mail: Jeb Kinnison, “Death by HR: How Affirmative Action Cripples Organizations” [Amazon/author’s site]
  • Now, for a change of pace, a less critical view of the Obama NLRB and its legacy [Andrew Strom, On Labor, parts one and two]
  • How much flexibility is there in the special California constitutional law doctrine forbidding even prospective cuts (i.e., of not-yet-earned benefits) to public employee pensions? [Sasha Volokh, earlier]

Liability roundup

Trump’s business interests and the Emoluments Clause

Given the complex ongoing dealings between the Trump Organization and foreign governments, the Emoluments Clause of the Constitution will require Congress to “decide what it is willing to live with in the way of Trump conflicts” — and it should draw those lines before the fact, not after. That’s what I argue in a new Philadelphia Inquirer piece. Excerpt:

…Trump points out that the president is exempt from the conflict-of-interest laws that bind Congress and the judiciary, but that doesn’t mean he will escape scrutiny from public opinion or from the body of federal law as a whole, including the Emoluments Clause.

That clause reads in relevant part: “And no Person holding any Office of Profit or Trust under [the United States] , shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”…

The wording of the clause itself points one way to resolution: Congress can give consent, as it did in the early years of the Republic to presents received by Ben Franklin and John Jay. …

…it can’t be good for America to generate a series of possible impeachable offenses from a running stream of controversies about whether arm’s-length prices were charged in transactions petty or grand. …

There is no doubt that doing the right thing poses genuine difficulties for Trump not faced by other recent presidents. If he signals that he understands the nature of the problem, it would not be unreasonable to ask for extra time to solve it.

For more detail, Randall Eliason has a helpful explainer, e.g. on why Emoluments Clause issues do not map well onto the concept of “bribery.” (Bribery is subject to a separate ban, while both presents and some other payments can violate the Emoluments Clause even if given and received with the purest of motives.)

Update: With Trump’s announcement this morning that he intends to step back from management involvement with the Trump Organization, I’ve adapted this post into a longer piece at Cato at Liberty on what comes next. I quote Prof. Bainbridge, who’s got a second round of observations here.

Yet more: memos shed light on how the Department of Justice has construed the obligations of the Emoluments Clause over many decades. And the Washington Examiner, which recently welcomed Tim Carney as new opinion editor, suggests an “occluded trust.”

English Court of Appeal: litigation funders on hook for fee shift

Casting aside traditional prohibitions on champerty and maintenance, the United Kingdom has of late thrown open its doors to “litigation finance” enterprises that fund legal actions as an investment in exchange for a share of the proceeds. But now a very important constraint may be developing as a corollary: backers of legal action may find themselves on the hook for the fee shifts that are payable to successful opponents under the country’s loser-pays (“costs follow the event”) rules. “Litigation funders will be liable for indemnity costs where these are awarded against their funded client, even if the funder itself has been guilty of ‘no discreditable conduct’, the Court of Appeal ruled today in Excalibur Ventures v Texas Keystone and others [2016] EWCA Civ 1144.” [Law Gazette]

“The $20 Million Bucket of Chicken”

KFC’s menu states that its “Fill-Up” $20 deal includes eight pieces of chicken plus a variety of sides that it thinks will serve a party of four. A Hudson Valley, N.Y. woman says she was misled by advertising materials that showed an overflowing bucket. The company offered her a coupon in recompense for her disappointment, but she wants $20 million instead in individual (not class) damages. [Nick Farr, Abnormal Use; Fortune] More: Baylen Linnekin rounds up poultry-related litigation.

Supreme Court roundup

Environment roundup

  • Major new Proposition 65 regs spell plenty of new compliance and litigation issues for those doing business in California [Cal Biz Lit, first post in series]
  • For-the-kids federal climate lawsuit on “public trust” theory represents, among other things, giving up on democratic persuasion [Ian Adams, R Street, to which might be added that lawsuits pretending to represent the future interests of children in general act as power transfers to lawyers and the judiciary] A different view: David Bailey and David Bookbinder, Niskanen Center;
  • “Why Don’t We Allow Markets to Dictate Parking Policy?” [Ike Brannon, Cato]
  • “Once, protesters threatened to burn Bryson and his family in their home.” [Billings Gazette on Standing Rock standoff; Radley Balko on a prosecutor who might be blurring sympathetic coverage of protests with legal responsibility for them; Shawn McCoy/Inside Sources pushes back against popular narratives on Dakota Access Pipeline]
  • Think our law-based eminent domain system has problems? In Brazil, where poor favelas often lack formal land titling, compulsory public acquisition of land can play out as a matter of discretion [Gregory Dolin and Irina Manta, SSRN]
  • Obama administration plans for drastically more severe fuel efficiency standards are prime target for early rollback [Ronald Bailey]

Circuit court strikes down CPSC rule on adult magnet sets

A Tenth Circuit panel has sent the Consumer Product Safety Commission back to the drawing board in its attempt to ban tiny magnet sets intended for adult use as a desk toy or creative outlet accessory. It ruled that the commission had not conducted an adequate cost-benefit analysis of the ban in line with the requirements of its enabling statute. We covered the CPSC’s legal vendetta against the defiant maker of BuckyBalls; the last surviving company to sell the product is Zen Magnets, which now is allowed to resume operations while the Commission goes back to the drawing board, assuming it decides to do so. [Nancy Nord]

Rules vs. standards in Supreme Court jurisprudence

Better than law school: Frank Easterbrook, John Harrison, Akhil Amar, and Victoria Nourse on rules versus standards in jurisprudence, with particular attention to the work of Justice Antonin Scalia, who made the subject a particular theme of his. The video is from the Federalist Society National Lawyer’s Convention last weekend, which had a Scalia theme.