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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Saturday, February 13, 2016 ::

    I can't not-update this semi-retired blog today. Perhaps now is the time to tell how I named it.

    It was the story about the bunch of pet fish: this one. The punch-line is "Justice Scalia ate all the others." But what I noticed was that, in all the various re-tellings, when told that the young man had named the biggest fish after him, the Justice's articulated assumption was that the fish-collector had used the name "Nino." In fact he had named that particular fish "Justice Scalia," but that wasn't the Justice's assumption: what he said was, "Oh, you've named him Nino."

    It would be very foolish to conclude from this that the Justice did not care about formality or encouraged strangers to address him casually. (The one time I got a letter answered from him, I followed a protocol book originalistically re how to address a letter to a Supreme Court Justice.) But blogs were relatively new things in those days; I figured he was unlikely to object to a fan-blog, and, taking this assumption one step further, would be unastonished to find that it was named, mutatis mutandis, the way he would have named a large pet fish, if he had named one after himself. (Of course I am solely to blame for the "mania" part.)

    End of an era? Being alive today is like being alive the day John Marshall died. In both cases, an intellectual giant dies while still on the Court, and his influence is/will be lasting. (Insert here your own reflection on the Taney-portrait paragraph at the end of Scalia's Casey dissent.)

    Much is being said, rightly, about Justice Scalia's rehabilitation of text and original intent, as a way of approaching both the Constitution and statutes. Less remarked-upon, I am afraid, will be the way this approach sometimes redounded to the benefit of criminal defendants. Given incorporation of the Bill of Rights through the 14th Amendment, the 6th Amendment's Confrontation Clause protects, in state as well as federal trials, what it says it protects - a right "to be confronted with the witnesses against him [the accused]." Technological substitutes for confrontation do not satisfy this textual, originalist standard.

    Justice Scalia was the Court's leader on this issue, usually joined by those the media call liberals. On this he has been in dissent (Maryland v. Craig - one of his best dissents ever, joined by Justices Brennan, Marshall, and Stevens); for the Court (Crawford v. Washington), and in a concurrence that all but accuses the Court's current "right" wing of wanting to reverse Crawford and go back to a "totality of the circumstances" test to determine whether a textual right was observed (see previous post).

    You see, Justice Scalia was very much a son of the Common Law, even though he did not believe that common-law methodology ("judge-made" - that's how most law schools define "common law" these days) was the right way to read the Constitution, or statutes that were not themselves based on Common Law terms. He loved the Common Law as a system - and not least because it shows a higher respect for defendants' rights than does its major competitor, which is becoming increasingly influential in, e.g., "international criminal law."

    Much is being made of Justice Scalia's tradition-oriented Catholic background. But this did not stop him from noting, in the Confrontation cases, that such exceptions to the confrontation right as can be found in English precedent come mostly from the "Marian Statutes" - enacted during Queen Mary I's attempt to bring Catholicism back to England. Roman Civil Law, replacing Common Law, and with trial by deposition as a standard feature, might have come with it; did, up to a point. Scalia could not have objected to the return of the old faith to England, but he could and did object to the displacement of English Common Law rights. As a jurist and a Common Lawyer, therefore, he saw it as his duty to point to the Marian Statutes (insofar as they impacted the confrontation right) as alien imports - or, as the Declaration puts it (probably referring to Admiralty), as "a jurisdiction foreign to our constitution and unacknowledged by our laws."

    If his successor is just like Justices Kagan and Ginsburg, then his advocacy on this particular issue may go forward. But obviously his death is a step forward - already being crowed over - for those who see the Supreme Court as a gloriously anti-democratic engine in the hand of change agents.

    Yet it falls in a presidential election year. That is, the Court vacancy has opened during an election year (and someone might want to whisper this fact to Ezra Klein, who, during shaving practice, apparently googled "Anthony Kennedy" but not "Robert Bork" or "Douglas Ginsburg." [Update: he has added references to Bork and D. Ginsburg, but seems still unaware that the vacancy arose the previous July, and seems also to think D. Ginsburg was rejected by the Senate.]) At the resignation of Earl Warren in 1968, LBJ wanted to move his crony Abe Fortas, already on the Court, to the Chief slot. No way, said Republican Senators (amid a Democratic Senate) - the next President will make that choice. (Whether it was worth expending political capital for Warren Burger is a question for another day.)

    Strange - critics of "legislating from the bench" (that would include me) presuppose that the questions on which "the bench" should not "legislate" are, by definition, those on which the electorate should legislate (whether federally or at the state/local level). Yet everyone with a political audience - I don't care where you are on the spectrum, just be honest - is a little bit nervous about saying to their folks: "Hey, in addition to all the other issues we've been agitating you about, you're also picking a Supreme Court Justice, so please scream, shout, send money, run around like chickens without heads, send more money, organize your friends, send more money, repost this, hold a teach-in, hold a fundraiser, and send more money...."

    How do you even have a campaign-stump conversation about a Supreme Court slot in a world where what people seem most to want is some combination of a $gazillion minimum wage and expulsion of funny-looking people? Do you try to conduct a seminar on the role of a counter-democratic institution in a society where most decisions (according to its constitutional Framers) were to be made in a democratic or republican fashion? In a world were even one of the major-party hopefuls thinks Supreme Court Justices line up their cases agenda-style, the way congressmen do with bills and presidents with executive orders? When one major news network called Scalia "Chief Justice" this morning, and another referred to the recently-retired "Justice Stevenson"? Your time would be over, and your audience gone, before you'd explained half your terms.

    (Having just busted Bernie, btw, let me now send him a big Ninomaniac hug for his gracious first words on hearing the news. He's old, see, and that has at least two consequences: he adheres to a tried-and-found-wanting ideology, and he adheres to lost-and-much-needed good manners. Many thanks, sir.)

    Still, it's better - as well as much more in line with precedent - for the electorate to get its bite at the apple in this situation.

    But all this is trivial, compared to Justice Scalia's legacy. Several good books (as well as a few drive-bys) have already been published on it; more will come out, as they continue to come out on Marshall, Field, Frankfurter, White (both of them), Thomas, Holmes (quite over-cultically), and Souter (quite inexplicably).

    Justice Scalia loved opera too. I'll close that way, with the ending of Verdi's Simon Boccanegra.

    FIESCO (longtime enemy of Boccanegra, reconciled with him in the end, speaks to the Genoese crowd): Genovesi! In Gabriele Adorno behold your new Doge.
    CROWD: No! Boccanegra!
    FIESCO: He is dead. Pray for peace for him.

    :: David M. Wagner 11:19 PM [+] ::
    :: Thursday, June 18, 2015 ::
    CONFRONTATION CLAUSE ALERT: This morning's Ohio v. Clark is a time-bomb under Crawford v. Washington (much as, I have argued, Crawford was potentially - may still be - a time-bomb under Maryland v. Craig). Clark is unanimous as to outcome, but the Scalia-Ginsburg concurrence outright accuses the "author" of the majority - that would be Justice Alito - of weakening Crawford through word-choice and dicta, because - their words, not mine - via "unabashedly display[ing] his hostility to Crawford and its progeny, perhaps aggravated by inability to muster the votes to overrule them." (Scalia, J., concurring in judgment, slip op. at 3).

    According to the majority, Crawford "adopted a different approach" than Ohio v. Roberts, which had permitted any unconfronted hearsay that bore "indicia of reliability." Crawford didn't change an approach: it overruled Roberts: explained why it was bad law and bad history, and drove a stake through its heart. (See e.g. this, discovered fortuitously). The Court today takes a step, although a small one, toward making them sound like two equally valid approaches.

    :: David M. Wagner 11:57 AM [+] ::
    :: Monday, May 04, 2015 ::
    Tsk, tsk, Ohio State. - At least it's ranked, though. Above the Law with the latest on the pushback against caution about going to law school, here.

    :: David M. Wagner 5:14 PM [+] ::
    :: Wednesday, July 09, 2014 ::
    ICYMI - and I'm sure you didn't miss it, if you visit here, but as the long-past Washington gossip columnist once said, if you haven't got anything nice to say, come sit right here next to me - Slate and Above the Law have been in a bit of a tiff over whether the law-school applications pool has finally cratered to the point where now may be a "buying opportunity," on the theory that with fewer lawyers at last coming through the law-school "python," there'll be a hiring bonanza in three years, and you want to get in on this opportunity now now NOW!

    I'll let ATL's Elie Mystal, who is right, be your portal to this one. Apologies for some of the language.

    :: David M. Wagner 11:22 PM [+] ::
    :: Tuesday, July 01, 2014 ::

    Hobby Lobby came out the Gonzales v. O Centro Espirita-way I mentioned yesterday, except with Alito writing rather than Roberts. On the surface it's a limited holding - applies only to closely-held corporations, depends entirely on the Religious Freedom Restoration Act (RFRA), and at that, on the second, "least restrictive means" prong of RFRA.

    1. RFRA gives protection to religiously-motivated conduct that goes beyond the Court's construction of the Free Exercise clause in Employment Division v. Smith, and even beyond the "pre-Smith cases," in that those cases were vague about whether their "compelling state interest" test had a "least restrictive means" prong or not, while RFRA clearly does.

    2. The Court may assume without deciding that providing access to contraceptives "without shared cost" (what normal people call "for free") is a compelling state interest; even so, ordering that this interest be carried out through mandates to private parties is not the least restrictive means, that is, the means with the least impact on religious liberty.

    In a brief solo concurrence that demonstrates everything objectionable about his style, Justice Kennedy says the Court affirmatively holds that providing access to all FDA-approved contraceptives "without shared cost" is a "compelling state interest." He is wrong. All the Court's opinion's discussions of this interest as "compelling" are kept in the hypothetical voice.

    (Please remember that a real "compelling state interest" is like a constitutional hand-grenade: it destroys what it's thrown at, such as otherwise-applicable constitutional rights. There's a compelling state interest in preventing reporting of an imminent U.S. military offensive, but that means active media censorship, so we're talking serious stuff. Sometimes the Court gets it wrong: it labelled prevention of a Japanese invasion of the West Coast a compelling state interest - and so allowed the Japanese-American internments in California. Stop handing out compelling state interests like candy. They're dangerous.)

    3. The decision is confined to for-profit corporations that are closely held. Does the for-profit status of respondent (they won below) Hobby Lobby, and appellant (they lost below) Conestoga, mean they can't have religious freedom? The Third Circuit in Conestoga said corporations "do not pray, worship, observe sacraments...." True, but so what? There goes a court, again, trying to define religion. Back in 1961, the plaintiffs in Braunfeld v. Brown, five Orthodox Jewish merchants who had a religious obligation to close on Saturdays, raised a Free Exercise objection to Pennsylvania's Sunday closing law. They lost on the merits - and this, to dissenting Justice Ginsburg, disposes of that precedent. It does nothing of the kind: tthe case of Braunfeld and his co-plaintiffs was heard, and no even breathed the suggestion that because they were proprietors of incorporated for-profit businesses - and indeed, loss of profit went hand-in-hand with their Free Exerise claim - that therefore they could not be heard to raise their claim. Win or lose, they were heard. (And they lost, per Chief Justice Warren's plurality opinion.)

    4. The future of the Obama Administration's "just sign here" alternative - where, instead of providing contraceptive coverage, you sign an affirmation that you object to doing so, and that triggers the insurance company providing it instead, without any further assistance from you - is at issue here. The Court points out (slip op. at 49) that it may be a "less restrictive means" than an order to provide abortifacient contraceptives or face massive fines, and this is enough to show that the latter Hobson's choice, at issue here, flunks the "least restrictive means" test.

    But the Court also goes out of its way not to endorse "just sign here." The dissent (appropriately) jumps on this: several cases testing the constitutionality of "just sign here" (that's my name for it, btw - no one else uses it) are working their way through the courts. Says the Court today: "We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims." (Slip op. at 44) And it refers us back to today's note 9, which refers to the Court's injunctive relief granted to the Little Sisters of the Poor, to whom a "Just Sign Here" ultimatum was offered. (The reprieve was granted through Justice Sotomayor: credit where due.)

    So, is the Court disingenous for suggesting a "least restrictive means" that it believes might flunk the "least restrictive means" test on other facts? No, because the issue remains undecided, and because the Court also draws attention to the larger point: if a public good is as important as HHS says the provision of a complete menu of contraceptives is ("women's health and well-being," in the dissent's wording), then why should it not be paid for out of general government funds?

    I have a theory on that. Before he pre-Civil War, before the Thirteenth Amendment, the Constitution had, alas, a clause that demanded the return of escaped slaves to their masters (Art. IV Sec. 2 clause 3). It did not specify how this was this was to be done, and Congress passed Fugitive Slave Acts to implement it. The one enacted through southern power in Congress as part of the Compromise of 1850 imposed an obligation on all citizens to take part in returning runaway slaves. It was not to be a "mere" government duty, to which one contributed, reluctantly, only through taxes: you now had to do it. People with fundamental objections to slavery had to participate in it.

    Regulations like the HHS Mandate under the ACA are like that. It just frosts some people's shorts that they are sharing this country with people, even though few in number, who won't voluntarily have anything to do with abortion or abortifacients, or even, in some cases, with contraceptives. Call it "women's health" all you like, but there are still dissenters from the contraceptive culture. So, the thinking goes, we'll make them handle them. If not by handing them out directly, then through direct funding. If not through direct funding, then through a signature that acts as a trigger for - direct funding (the "just sign here" option). We'll see what happens to the Resistance when everyone's hands are dirty.

    So the Court is, I think, prescient in withholding premature endorsement from "Just Sign Here," even while noting, correctly, that it is a less restrictive means than mandatory funding, and therefore enough to prove that mandatory funding fails RFRA's "least restrictive means" test.

    Justice Alito is aware of what's at stake for religious freedom. Until now, Justice Ginsburg has not been known as a Smith enthusiast or a RFRA opponent (though as a matter of fact she concurred in City of Boerne, striking down RFRA as applied to state and local governments). Today Justice Alito (for the Court, of course) notes: "In its final pages, the principal dissent reveals that its fundamental objection to the claims of the plaintiffs is an objection to RFRA itself."

    Why is that important? Because (the Court goes on to point out) it explained forcefully in Smith (and, I would add, more forcefully in Justice Scalia's concurrence in Boerne) the problems of judicial administration of religiously-based conduct exemptions. But Congress wanted the courts in that business anyway, and so enacted RFRA, which - at the federal level - it had a right to do. Justice Ginsburg, in other words, goes beyond the Court's considered option against religious exemptions from generally applicable statutes in Smith, and would apply that very interpretation to RFRA, which was enacted to counteract Smith! If there's an "animus" against religion here, it's not in the Smith majority.

    Besides judges calling close ones about religious exemptions, there's something else that Smith warned about, that RFRA happily does not promote, and that is - judges making decisions about the reasonableness of folks' religious beliefs. Yet today's dissent, while professing to share this disinclination, has a real problem with the petitioners' notions of moral causation and responsibilty. The dissent declares (dissent slip op. at 23-24) that the owners of Hobby Lobby and Conestoga shouldn't worry, because they're not buying abortifacients - it's just (some of) their employees that are. See? No problem! Well, that's one theory of collaboration in evil that some religions may adopt, but that others may have trouble with. (See what you can do thinking of your own hypos.) The Court responds (slip op. at 36):

    This argument dodges the question that RFRA presents (whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs) and instead  addresses a very different question that the federal courts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable). The Hahns and Greens believe that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage. This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent itself but that has the effect of enabling or facilitating the commission of an immoral act by another. Arrogating the authority to provide a binding national answer to this religious and philosophical question, HHS and the principal dissent in effect tell the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to ake such a step. See, e.g., Smith, 494 U. S., at 887....

    :: David M. Wagner 12:19 AM [+] ::
    :: Sunday, June 29, 2014 ::
    Oh and while we're waiting, I should remark - I should have remarked it back on April 22, when it was handed down - that on that date, the Court, per Justice Thomas, handed down Prado Navarette v. California, a very dangerous crim pro decision expanding the already-immense power of police to pull over motorists based on thin suspicion (and then carry out plain-sight searches, of course, or full-car searches of motorists who don't know they have a right to refuse).

    The dissent was written by Justice Scalia, joined by what the media call "the liberals." This happens in 6th Amendment Confrontation Clause cases too, except that Justice Scalia's crystalline reasoning has in some cases begun to persuade a majority on that one. But not always. Anyway these crim pro cases really show the intellectual poverty of ideological labels on the Court. There's originalism, and there's non-originalism, and in many cases, originalism gives criminal defendants rights that fair-weather originalists want to overlook.

    (And oh gosh, look at this. Smatterof fact, this was the subject of my most recent Federalist Society lecture.)

    And it's not that I always side with Scalia when he and Thomas split, because I don't....

    :: David M. Wagner 10:30 PM [+] ::
    So tomorrow we get Hobby Lobby, and based on who's been writing from each sitting, either Alito or Roberts is expected to write it. But Alito could deliver the labor opinion that's also expected, and with Roberts writing Hobby Lobby, it could be a victory for religious freedom in the marketplace, or it could be a split, like Noel Canning and McMullen.

    The unanimous loss for Obama's position in Noel Canning has been duly noted, but, as Justice Scalia pointed out, the Court rejected the historically defensible meanings of "session" and "recess" and instead held little more than that the President can't use a Senate lunch break for a recess appointment, and that we the Court hereby invent a 3-and-10-day rule and will keep you posted. Yes, it's amazing to find a mostly-Democrat-appointed majority, led by Breyer, telling Obama he can't do something he thought he could do; and, as for McMullen, it's amazing when this Court unanimously finds a restriction on pro-life speech unconstitutional; but the ban self-evidently applied only to abortion opponents, and contained exceptions for their adversaries - and the Court found it "content neutral," and unconstitutional only because it's a little too broad, and btw see Part IV for hints on how to do it better next time.

    In Gonzales v. O Centro Espirita, Roberts for a unanimous Court wrote that federal RFRA really means what it says, and if a majority still thinks that, then (without even getting into the issue of RFRA-less Free Exercise), that should produce a strong 9-0 for Hobby Lobby. But in various district courts, judges have been taking it upon themselves to determine what constitutes a "substantial burden" on religion, a judicial practice rightly discountenanced in Employment Division v. Smith; and of course Hobby Lobby is a business, not a church (not that that should matter, because there's no reason to think either the Free Exercise Clause or RFRA applies only to churches, but....)

    Does the fact that Scalia has been spending a lot of time on "scathing concurrences" recently mean that he has nothing to say against the Hobby Lobby opinion? Maybe - but he also wrote a stirring dissent in Lee v. Weisman in 1992 that came out a few days before his even more stirring dissent in Casey. Maybe his denunciatory work in Noel Canning and McMullen mean he's just in the groove this month.

    :: David M. Wagner 9:53 PM [+] ::
    :: Monday, April 07, 2014 ::
    Jeremiah Denton

    Catholic, Naval officer, POW, hero, U.S. Senator, attorney. 89. RIP.

    :: David M. Wagner 8:47 PM [+] ::
    :: Monday, March 24, 2014 ::
    Civil Juries

    Last Friday we had a panel at Regent, co-sponsored by our Federalist Society chapter and by The Seventh Admentment Advocate (Andrew Cochran, Washington rep.). Our principal speaker was legal history Prof. Paul Finkelman, of Albany Law School, currently visiting at Louisiana State; I added some comments, and there was q-&-a between us and with the audience.

    We had hoped to have as well Houston-based trial attorney Sean Patrick Tracey, but he was detained by an illness in the family - something I offer to students as a good example: this very busy litigator dropped everything to be with a sick relative. Too often the practice of law messes up one's priorities; not so with Mr. Tracey.

    The topic was frames as, "Should the Seventh Amendment be Incorporated"? Prof. Finkelman took the view that civil jury access is under threat, but that a comparison of how many filings get to juries in state versus federal court shows that simply incorporating the Seventh would change very little. His target, rather, is the Federal Arbitration Act, decisions such as Circuit City interpreting it, and boilerplate language creating contracts of adhesion that enforce it.

    Me - I did my originalist thing: that the Framers' generation thought of jury service as even more important than voting as a form of civic participation and of self-government. It was essentially my Weekly Standard article, except that I also pulled in Strauder, where the Court showed at least as much sympathy for the plight of the excluded black jurors as for Strauder himself, tried without even the possibility of a black juror. In other words, the Court vindicated the rights of blacks to be jurors, more than (as it made clear) the right of Strauder to have one.

    Final note: Prof. Finkelman - who enjoys helping and advising students across ideological barriesrs, and who also has a specialization in the law of baseball - asked me why the Federalist Society was taking an interest in juries. I replied: the Federalist Society as such doesn't take positions, but I'm taking an interest in juries on originalist and civic-participation grounds, with a tip of the hat to Prof. Akhil Amar on this issue. FedSoc people think a lot of different things. Prof. Finkelman said, "Just what I like best - a game where you can't tell the players even with a program!"

    :: David M. Wagner 2:01 PM [+] ::
    :: Sunday, January 12, 2014 ::
    Many thanks to The Weekly Standard for running my piece on civil juries. Spoiler ahead: the Framers liked them, ergo. so do I.

    :: David M. Wagner 10:35 PM [+] ::
    :: Tuesday, December 24, 2013 ::
    Crastina erit vobis salus, dicit Dominus Deus exercitum. - From Nones for the Vigil (day before) Christmas

    :: David M. Wagner 4:53 PM [+] ::
    :: Wednesday, December 04, 2013 ::
    Goodlatte Patent Troll bill - dubitandum

    Friends who know my penchant for cross-ideological coalitions (wail til I bring you the news of the glorious Scalia-Kagan alliance on the Confrontation Clause!) have called my attention to H.R. 3309 the Innovation Protection Act, introduced by the reliably conservative Rep. Robert Goodlatte (R.-Va.) and supported by the Obama administration.

    The goal is to crack down on patent trolls. Though such persons and firms have come up with anodyne names for themselves ("non-practicing entities," "patent-assertion entities" - the latter is more candid), there remains, rightly, widespread opposition to what they do: buy up patents with no intention but to send out threat letters to companies that may (or then again may not) actually be using those patents. Patent trolls make billions in settlements that could otherwise go into job-creating, life-enhancing products. Patent nerds, of which I am not one, must correct me, but as I understand the matter, current legal rules allows patent trolls to state a claim without even specifying their patent or describing how the defendant is infringing. So it's a big but unproductive business.

    Mr. Goodlatte's bill was voted out of the House Judiciary Committee on Nov. 20 with a 33-5 majority and a standing ovation. (Note to non-ironists: I made the ovation up. It's a Brit-polit thing; picked it up from a Britcom called "No Job For a Lady.")

    But a funny thing happened on the way to the Floorum. Several conservative groups (e.g. AEI, through its tech-law blogger, Michael Rosen) have noticed that its reforms of legal procedure are somewhat radical. If my patent-nerd friends will tolerate an explanation by someone not of their brotherhood - but who does care about procedure - the problems are something like this.

    1. Currently, patent plaintiffs (or trolls, if you insist) need not be very specific at the pleadings stage; that comes later, after discovery. Under the Goodlatte bill, extraordinary specificity about the patent, and about the defendant's alleged infringement, is required at the pleadings stage - i.e. to "get into court," as layfolk not-inaccurately put it. This is said to be necessary to keep out the trolls. It'll do that all right - and it will also keep out a lot of small inventors who are indeed making good use of their patents, thank you very much, but who can't afford to defend them against deep-pockets infringers.

    2. "Loser pays." On Planet Tort Reform, there is a continent dedicated to the debate over whether American jurisdictions should adopt the "English rule," whereby the losing party bears court costs and, gulp, attorneys' fees for both sides. Nothing like it to filter out all but the most slam-dunk plaintiff cases, goes the argument in favor. But, goes the opposite argument, it also filters out (cue the "Slam the Courthouse Door" Blues) plaintiff cases that are meritorious yet not so lopsidedly so that they can easily be won on motion on the pleadings, or even at summary judgment (and of course discovery is costly). There should be room for a middle range of cases that actually have to be argued about (preferably in front of a jury). The English rule of course does not prohibit this, but makes getting there very high-risk.

    That debate goes on; the Goodlatte bill settles it in favor of the English rule (loser pays) in patent infringement cases, as the strongest possible deterrent to the trolls. But, again - in patent infringement as in other causes of action, not all plaintiffs are trolls or opportunists, though some are. Perhaps more importantly, the Goodlatte bill doesn't quite go all the way in its adoption of the English rule: it allows courts to vary the statute's presumption of cost allocation under a "substantially justified"/"special circumstances" test.

    What could be more reasonable than that? In litigation, almost anything. What this will do is guarantee post-verdict judicial review of cost-allocation in nearly every case (as AEI's Michael Rosen points out in the link supra); the emergence of a judicially-made law of "substantially justified" and "special circumstances" just for patent litigation cost allocation; and eventually, an entire section of the organized bar specializing in just this, with its own ABA section and its own annual conferences in exotic locations.

    Really, it's public-spirited of the American Association for Justice (formerly ATLA) to oppose the Goodlatte bill: it could lose out on patent litigation in the short run, but in the long run, it could make out like bandits on the cost-allocation follow-up litigation. Except - the losers would be innovative firms too small to afford to fight big infringers over cost allocation, and such firms need lawyers. On this one, I'd take those lawyers' advice.

    :: David M. Wagner 12:56 PM [+] ::
    :: Tuesday, November 26, 2013 ::
    The Court has granted cert in two HHS Mandate cases focusing on the question of religious liberty rights of corporations.

    It chose for review the two cases that I chose to study with my First Amendment seminar, because they are the cases that stake out the most decisive position on each side: Hobby Lobby (10th Circuit, granting a preliminary injunction), and Conestoga Wood (3rd Circuit, denying one).

    Though Conestoga Wood is closely owned by the Hahn family, of Mennonite faith and conviction, the 3rd Circuit's opinion tried to assure them and us that when they provided, through insurance, the types of contraceptives that function as abortifacients, they needn't worry: it's not the Hahns doing it, it's Conestoga Wood!

    The corporate form separates the owners from the corporation for corporate purposes - but for all purposes? Would the 3rd Circuit's theory work in a human rights criminal trial ("It wasn't us supplying the lethal materials, it was our company")?

    I recommend Judge Jordan's dissent in Conestoga. One issue he flags that Judge Tymkovich's majority opinion in Hobby Lobby does not is, just what is the "Institute of Medicine"? It's a private entity. Click on that website link for information on how wonderful it is ("self-serving," Judge Jordan notes). So, Congress made the law, delegated the details to an agency, the agency re-delegated key details to a private entity, which returned them to the agency, which then made them law. Does that pattern remind one of anything? A.L.A. Schechter, but with the HHS Secretary in place of the President?

    :: David M. Wagner 4:18 PM [+] ::
    :: Sunday, October 20, 2013 ::
    Rob Natelson, a conservative (my term) law professor whom I have long admired for his deep knowledge of 18th century American and English sources (vital for understanding the Constitution) says that the Republican alternative to Obamacare abuses the Commerce Clause the same way the Obamacare bill itself tried to do, but got slapped down for it by the Roberts Court (Chief + 4 conservative "dissenters" = 5 = a holding of the Court).

    :: David M. Wagner 7:02 PM [+] ::
    :: Thursday, October 17, 2013 ::
    Best part of the NY Mag. interview:

    Q.Isn’t it terribly frightening to believe in the Devil?

    A. You’re looking at me as though I’m weird. My God! Are you so out of touch with most of America, most of which believes in the Devil? I mean, Jesus Christ believed in the Devil! It’s in the Gospels! You travel in circles that are so, so removed from mainstream America that you are appalled that anybody would believe in the Devil! Most of mankind has believed in the Devil, for all of history. Many more intelligent people than you or me have believed in the Devil.

    :: David M. Wagner 6:04 PM [+] ::

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