- Washington Post “Fact Checker” Glenn Kessler awards Three Pinocchios to prominent Senate Democrats for claiming their body is constitutionally obligated to act on a Supreme Court nomination [earlier]
- George Will argues that even though the Constitution does not constrain them to do so, there are strong prudential reasons for Senate Republicans to give nominee Merrick Garland a vote [Washington Post/syndicated] A different view from colleague Ilya Shapiro [Forbes]
- Garland is known in his rulings for deference to the executive branch; maybe this president felt in special need of that? [Shapiro on Obama’s “abysmal record” heretofore at the Court; Tom Goldstein 2010 roundup on Garland’s jurisprudence, and John Heilemann, also 2010, on how nominee’s style of carefully measured liberal reasoning might peel away votes from the conservative side]
- Litigants’ interest in controlling their own rights form intellectual underpinnings of Antonin Scalia’s class action jurisprudence [Mark Moller, first and second posts] “With Scalia gone, defendants lose hope for class action reprieve” [Alison Frankel/Reuters]
- OK for private law firms hired to collect state debt to use attorney generals’ letterhead? Sheriff v. Gillie is FDCPA case on appeal from Sixth Circuit [earlier]
- Murr v. Wisconsin raises question of whether separate incursions on more than one parcel of commonly owned land must be considered together in determining whether there’s been a regulatory taking [Gideon Kanner]
Archive for March, 2016
Patent litigation: “Could the Eastern District of Texas’s Reign Come to an End?”
Federal law has allowed patent suits to be filed wherever a defendant is subject to personal jurisdiction, and as a result something like 40 percent of suits are filed in the rural Eastern District of Texas, known for its pro-plaintiff rulings and procedures. Now, in a Federal Circuit appellate case called In re: TC Heartland, LLC, a defendant is asking for a case to be transferred (in this case not from E.D. Tex., but from D. Del.) to the southern district of Indiana, where it is headquartered, citing what it says are the implications of a 2011 Congressional enactment, the Federal Court Jurisdiction and Venue Clarification Act. Others say that it is up to Congress to restrict forum-shopping by clear instruction should it choose to do so, and that it did not do so in the 2011 law. [Mintz Levin] More: WLF.
Victor Schwartz on supposed gunmaker “immunity”
Leading tort law scholar Victor Schwartz describes as “pure fiction” Hillary Clinton’s claims, which I’ve discussed before, that the 2005 Protection of Lawful Commerce in Arms Act (PLCAA) gave gun manufacturers a sweeping immunity from litigation. “Putting rhetoric aside, this much is clear: Traditional liability law still applies to gun manufacturers. The Protection of Lawful Commerce in Arms Act specifically states that makers of firearms are liable for any defect in their products, such as if a gun misfires and harms someone, or if it does not work at all and fails at the moment it is lawfully needed.”
Jury awards Hulk Hogan $115 million against Gawker
Gawker Media published a sex tape it had obtained of a famous wrestler, then refused to take it down when a judge ordered it to do so. Now a Florida jury has hit it with a $115 million verdict. [Ars Technica] While at some point a civil litigant was bound to catch up with the notoriously scurrilous media outfit, the question now is whether other, better media outfits need to worry too. On appeal, the defendant will press its contention that the contents of the tape were newsworthy, a category that allows broader use of material that otherwise would invade privacy.
Comparisons are already off and running between this and the $55 million Erin Andrews invasion of privacy verdict against defendants including Marriott. In comparing the two, however, it should be borne in mind that the Gawker case was one of willful misconduct, while the Andrews case charged the hotel with negligent conduct that inadvertently allowed another party to commit a crime against her privacy.
P.S. A reminder of Gawker’s deep, abiding interest in free speech (“Arrest climate change deniers“) Plus, careers for the 21st century: sex tape broker (with careful attention to the legalities so as to dodge California law’s definition of extortion).
WHO: children should not be allowed to watch films with smoking
“Bad news for Pinocchio and Cruella De Vil.” The ever-meddlesome World Health Organization “would like to see all films that feature smoking given an adult rating.” That would exclude kids from many of the kid-oriented classics of the past, from Alice in Wonderland (hookah-smoking caterpillar) to Peter Pan (Captain Hook), to say nothing of more recent films such as “Lord of the Rings (Gandalf and his pipe) or X-Men (Wolverine and his cigar)” [The Guardian; Brian Doherty]
Duracell class action settlement at SCOTUS
The Duracell class action settlement, which we’ve covered a number of times, is cy pres-heavy and delivers a payoff mostly to lawyers, as objector (and former blogging colleague) Ted Frank has shown. Will the Supreme Court review it? [Mark Tapscott, Hans Bader]
Free speech roundup
- Unbowed by terror: interview with heroic Danish editor Flemming Rose [Simon Cottee/The Atlantic]
- “If The Left Had Its Way On Citizens United, ‘Funny Or Die’ Would Not Be Allowed To Ridicule Trump” [Luke Wachob, Independent Journal]
- Justice Department considers push for law criminalizing support of domestic terror groups [Reuters] Per federally funded police-support center, possible indicators of “extremist and disaffected individuals” include display of “Don’t Tread on Me” flag [Jesse Walker, Reason]
- U.S. BigLaw firm Squire Patton Boggs represents Venezuela as it tries to shut down U.S.-published DolarToday for publishing data about inflation [Jim Wyss/Miami Herald, Cyrus Farivar/Ars Technica, earlier here, etc.]
- When scandal broke about IRS targeting of opposing groups, even President Obama talked about accountability. After press attention waned came refusal to press charges, whitewash, denial [Glenn Reynolds, USA Today]
- Bad, bad bar: behind recent rise in blasphemy prosecutions in Pakistan is a lawyers’ group [Reuters]
Alan Simpson’s case for second chance laws
Quite a read: former Wyoming GOP Sen. Alan Simpson, arguing for second chance law, recalls his own youthful offenses [Sioux Falls Argus-Leader]
Confirmation? Obama’s own Alito stance has lit the way
In addition to the links yesterday on the nomination of D.C. Circuit Chief Judge Merrick Garland to the vacancy on the Supreme Court, here’s Ilya Somin: “No one has better explained the justification for senatorial consideration of judicial philosophy than then-Senator Obama in his 2006 speech justifying his opposition to the nomination of Justice Alito (which Obama had previously tried to prevent from even coming to a vote, by using the filibuster)” While there is good reason for Republicans to table the Garland nomination for now, Somin writes, they should keep in mind that Garland is “preferable to what we might well get in the likely event of a Hillary Clinton victory” — and also that “it would be irresponsible to leave the door open for a Trump nomination.”
And more from the other Ilya, Ilya Shapiro, on the nominee in a CNN roundtable:
From my own perspective, Garland has shown an alarming amount of deference to the government in his years on the important D.C. Circuit, which handles appeals from administrative agencies. I also fear that he won’t represent the check on ever-expanding federal power and executive actions to the same extent as Scalia. And if you’re a civil libertarian, his solicitude for law enforcement makes him much less appealing than other judges who had been under consideration.
More (edited): Sorry, email-blast progressives: the Senate has no constitutional duty to vote on a Supreme Court nominee [Michael Ramsey constitutional arguments]. On the other hand, Vikram Amar criticizes the Senate not on the untenable constitutional argument but because, he says, the no-hearings-no-votes stance goes beyond a prudent or appropriate political response to the Democrats’ earlier acts of nomination obstruction.
Environment roundup
- Oh, George Takei, must you approvingly link to conspiracy site saying Zika virus microcephaly is caused by Monsanto? [archived]
- Texas lawyer who blew GM trial sued over alleged BP compensation scam [Laurel Brubaker Calkins and Margaret Cronin Fisk, Bloomberg Business Week]
- “Enviros Plan To Militantly Shutter World’s Major Coal Plants” [Daily Caller]
- Obama administration has been on a tear imposing compulsory energy efficiency standards on consumer products, but a bill in Congress would halt that trend [Paul (“Chip”) Knappenberger and Patrick Michaels, Cato]
- From the vaults: Ted Frank notes how historic preservation laws can lead owners to pre-emptively demolish a building for fear that exploring options to save it could lead opponents to organize and seek an injunction [Point of Law]
- “Obscure Taxpayer-Funded Program Bankrolls Anti-Pipeline Activists” [Inside Sources]
- Pressed by Sen. Sheldon Whitehouse, Attorney General Loretta Lynch says Exxon’s claimed climate denial has been referred to FBI [Grist, I get a mention]