Gordon pointed you to Donna Nagy's brief (and Larry Ribstein's) yesterday for the Free Enterprise Fund v. PCOAB case, in which she and a number of other eminent law professors point out the constitutional problems with the Board, which, they argue, is inconsistent with constitutional separation of powers principles.

I wanted to follow up a bit here, because the Board is a strange entity indeed - a pretty independent creature of the SEC, which is itself pretty independent from presidential control.  There are not many (or even any) agencies set up like it.  How did Congress think it up?  I think the Nagy brief has an interesting point here:

So in other words, PCAOB is set up like an SRO, which is constitutional, but SROs are private entities, while PCAOB is a public entity.  It is the public-private distinction which she thinks has tripped up the government - and it wouldn't be the first time.  While I don't know if this is a dealbreaker, it is an interesting exercise in how laws get made by looking to the old models ... something that would be rationalizers of our financial regulatory system are realizing to their chagrin.

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Yes.

UPDATE: And yes again.

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In APCC Services, the Supreme Court today held that assignees of claims had standing to pursue those claims in federal court, even if they have promised to remit the proceeds of the litigation to the assignors.  It is interesting because it a. was a 5-4, b. was a case where Kennedy swung "liberal," and c. marks a new round in the important fight to broaden standing requirements.

Such requirements often turn on injury, and the question was whether the assignee of a claim could really be said to suffer injury if any proceeds on the claim would go to the assignor.  In answering the question in the affirmative, the majority may have been (indeed in some cases explicitly was) thinking about all the cases where the driving party behind litigation is not the injured plaintiff, but the incentivized lawyer: qui tam, contingency fee, patent assignees, guardians ad litem and so on.

When you read a lot of standing cases, you start looking for markers for future fights over the doctrine, because those fights take up ever larger amounts of the time of the federal courts.  There are two markers of particular note in this opinion.  First: "We have often said that history and tradition offer a meaningful guide to the types of cases that Article III empowers federal courts to consider."  So plaintiffs seeking standing are invited to look to past practice, rather than the strictures of the standing test, to make their case for plaintiffhood.

Second, there's some disdain for ticky-tack and technical denials of standing - much needed disdain in my view, but I could see future litigants argue "why should we have to jump through a silly and easy to jump through hoop?  Just award us standing."  See if you agree: "Were we to agree with petitioners that the aggregators lack standing, our holding could easily be overcome. For example, the agreement could be rewritten to give the aggregator a tiny portion of the assigned claim itself, perhaps only a dollar or two. Or the payphone operators might assign all of their claims to a “Dial-Around Compensation Trust” and then pay a trustee (perhaps the aggregator) to bring suit on behalf of the trust."

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Since writing a law review comment on the free speech rights of public employees, I have shied away from scholarly engagement with the First Amendment, preferring more circumscribed fields of inquiry ... like fiduciary duty! Anyway, I was interested to read about the so-called media shield law in the NYT, partly because the topic is intrinsically interesting and partly because my future colleague, RonNell Andersen Jones, is working in the area. Indeed, RonNell is cited in the story:

Federal judges began offering leeway to reporters as well in civil litigation and criminal trials, so long as the information sought was not critical to the government's or plaintiff's case and was available elsewhere. At times, they protected journalists from having to disclose unpublished, nonconfidential material.

''By a stroke of genius, media attorneys were able to turn what was actually a loss for the press in 1972 into a qualified privilege for 30-plus years,'' said University of Arizona law professor RonNell Andersen Jones. ''There is now an unsettled feeling among members of the press about whether this carefully constructed house of cards is going to be blown down.''

Jones has come up with figures in a soon-to-be-released survey that indicate a rise in federal subpoenas following highly publicized media losses in recent years. Those defeats, she says, have emboldened more lawyers to subpoena journalists.

 

Her survey, which got responses from 761 news organizations, found 21 federal subpoenas seeking names of confidential sources in 2006 and an additional 13 seeking material other than a source's name that was received on condition of anonymity.

Those numbers are substantially higher than the 19 subpoenas since 1992 cited by the Justice Department when arguing that a federal shield bill is unnecessary. That count includes only subpoenas by department prosecutors who want reporters to disclose sources' identities to grand juries. The tally does not include civil lawsuits, cases involving special prosecutors or trial subpoenas by federal prosecutors seeking confirmation of material already published in news stories.

If this subject interests you, keep an eye out for that "soon-to-be-released survey," which RonNell tells me is nearly complete.

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I am reading some old Karl Llewellyn articles, including one from the Harvard Law Review entitled "Across Sales on Horseback." Here is the first paragraph:

It is possible that there are fields of our law more fascinating than that of Sales, but I find the possibility difficult to credit. For packed into this small sector of the law is the course of our history over a century and a half, reflected with a range which the narrowness of the subject matter would seem offhand to make impossible, reflected with a precision which rivals even that of the constitutional law field. And because the work is the work of a multitude of courts, inexpert, busy chiefly on other things, average shrewd and more than average honest, but with no supreme authority over them, the picture yielded is a picture of the democratic process in law-making which the constitutional law field can never rival.

Does this resonate with you? Or do you read Llewellyn and think, "Surely he must be kidding!"? When I read the first sentence, I thought he was joking, but this passage resonates with me. I feel the same way about studying contracts and fiduciary law. During law school, I was a Con Law junkie, so I can see the attraction, but now I much prefer to read about private ordering.

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Former guest blogger Geoff Manne and Randy Barnett of the Volokh Conspiracy have organized a paper symposium on Raich v. Gonzales, the medical marijuana case decided in the Supreme Court's last term. The papers comprise the fourth issue of the Lewis & Clark Law Review, and the cover appears below. All of the papers are available online. You will notice contributions by bloggers Ann Althouse and Glenn Reynolds, among others. Well done, Geoff and Randy.

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OK, Miers is out.  Now that we've determined that she's a terrible writer, a sloppy thinker, a sycophant and a bad manager ... Am I the only one that's troubled that she's still White House Counsel?  (Is she?  I assume so.)

As WH Counsel, her writing is less important but hardly irrelevant; she still has to communicate ideas.  And I have precious little reason to think she can handle the issues the thinly-staffed WH Counsel's office faces.  Or to think she will appropriately advise the President.  And GWB et al need good legal advice these days.

From the point of view of protecting the well-being of the country, I'd almost rather see Miers on the Court and Roberts as WH Counsel than the other way around.  On the Supreme Court, Miers' mistakes would be checked by the clerks and the other Justices.  Inside the White House, her mistakes might actually matter more, especially if she's giving off-the-cuff advice in conversation without the help of deputies.   

My hope is that Miers rarely acts alone; I also suspect that deputies in the WH Counsel's office have considerably more autonomy than Supreme Court clerks.  So I'm troubled but not horrified by the knowledge that the WH Counsel's office is a ship without a captain. 

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If you just tuned in, Conglomerate has been having a fun shouting match over whether a cap on noneconomic damages can survive rational basis scrutiny on an Equal Protection challenge (under Wisconsin law).

At the heart of this discussion is the fact that the cap is a regulation.  A regulation that theoretically imposes costs on some to yield a greater benefit for others.  The Supreme Court of WI couldn't see the benefit, so the piece of regulation did not pass its "rational scrutiny with a bite" test.

Now, I have been accused by Vic of being pro-regulation, but I have been in discussions about proposed regulation with others.  We generally argue about whether there is a connection between the harm we are trying to avoid or the benefit we are trying to grant and the reality of the regulation.  So, just because we want to limit advertising to children of fast food, is there an actual connection between the regulated activity (ads) and the harm we're trying to avoid (childhood obesity)?  If not, then there should be no regulation.  Also on the blogosphere has been discussion of cell phones and driving.  Is there a connection between driving while on the cell phone and increased traffic accidents or are so many other activities distracting (radio, passenger chatting, CD player), that cell phones are a red herring.  If so, then there should be no regulation.  In the comments, others have hypothetically applied Abrahamson's test to funeral home licensing, assault weapon bans, and various other regulations.  If I want to show you how stupid striking the cap down under rational basis scrutiny is, then I will point out meritorious liberal/conservative legislation that would also be struck down under this test.  If the case had come out differently, and been a situation where rational basis review is no review at all, then we can hypothesize ridiculous liberal/conservative legislation that would pass the test.

One thought I want to throw out there is why the difference here?  Why the willingness to demand a cost/benefit connection before the regulation is passed by the legislature and the unwillingness to let a court demand the same connection?  Is it a a trust in the legislature that we don't have in the judiciary?  Is it the belief that the legislature is politically the appropriate body to make the cost/benefit connection, and once they do, the courts do not have the right to step in unless a right is implicated to trigger strict scrutiny?

I don't think I have any greater sense of propriety of legislatures or courts in this regard.  We can argue that ATLA gives money to judge's campaigns, but so does the AMA, defense firms, and insurance companies.  Lobbyists on all sides are at work in legislatures and political campaigns.  I have no sense that one elected branch is beholden to special interests any more than any other.

So, from behind the magic curtain or the invisible veil, which level do we want for the majority of all legislation that is passed?  No review, some review?  As commenters have pointed out, the sword will have two sides.

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As I mentioned a few posts below, the Wisconsin Supreme Court held last week that a $350,000 cap on noneconomic damages in medical malpractice negligence actions was unconstitutional under the Equal Protection clause of the state constitution.  The opinion left viable the same cap for wrongful death actions.

Bloggers have already looked askance at the opinion:  see Ann Althouse and David Bernstein.

Let me present the other side.  In this opinion, the majority analyzes the claim from an equal protection point of view.  The cap treats two groups dissimilarly:  med mal victims whose damages are greater than the cap, and victims whose damages are lower.  The majority shows that statistically the victims in the former group are disproportionately children because of their greater life expectancy.  However, the majority acknowledges that these groups are not suspect classes of individuals and the rights involved (Wisconsin constitutionally-protected right to a trial, right to a remedy) are not fundamental.  So, the majority acknowledges that rational basis scrutiny is the proper level of scrutiny.  Here's where the fun begins.

The majority strikes down the cap under rational basis review. 

The dissent argues that because of this result, the majority must have been using intermediate review in rational basis clothing.  As an outsider not in love with the logic of Con Law jurisprudence, I find it interesting to read a jurist come so close to saying that legislation cannot fail under rational basis review.

So, how does the majority find that the cap is arbitrary?  The majority looks at the "findings" section of the legislation and tests these findings.  The first is that caps will decrease medical malpractice premiums and that lower premiums will lower overall health care costs.  Putting aside whether lower premiums would lower health care costs, let's focus on that aim.  The court focused on whether the noneconomic damages cap was rationally designed to further that goal of decreasing medical malpractice premiums.

The majority looked at many sources, including the Wisconsin Commissioner of Insurance, which reports every two years on whether the 1995 cap has had an impact on malpractice rates.  I cannot find a copy report on the Wisconsin website, but the majority cites the report as saying that the caps have not affected med mal premiums.  The opinion cites themost recent version of the Report as stating "it would be difficult to draw any conclusions from premium numbers based solely on the enactment of Wisconsin Act 10" and "no direct correlation can be drawn between the caps enacted in 1995 and current rate changes taking place in the primary market today."  The court, finding no correlation, finds that "it is not reasonable to conclude that the $350,000 cap has its intended effect of reducing medical malpractice premiums" and concludes that the cap "is not rationally related to the legislative objective of lowering medical malpractice insurance premiums."

I don't teach Con Law, but I do teach Torts, and I spend one day on the tort crisis issue.  I challenge my students to argue pro and con with evidence, not generalizations.  In preparing for that class, I read the empirical data.  I read the law review articles that analyze the empirical data.  The empirical analyses that are important here are the analyses that purport to find some correlation between damage caps and malpractice premiums.  Everything I have looked at says "no."  The GAO said no.  Numerous law review articles say "no."  The most recent study by Bernard Black, Charles Silver, David A. Hyman, and William M. Sage of claims and premiums in Texas (1988-2000) seems to conclude that the post-1999 spike in premiums was not related to any accompanying increase in med mal payouts.

Prof. Bernstein, however, wonders where the line is to determine what is rational.  "The ceiling (on non-economic damages) won't have a large effect? Perhaps. Won't have a noticeable effect? It's possible. Is not "rationally related?" Only because the court seems to define "rationally related" as "having a guaranteed large effect."

I don't agree with the characterization that the majority claimed that the legislation would have to have a "guaranteed large effect."  The majority concluded that the legislation had no discernible effect on its stated goals.  Prof. Bernstein seems to argue that the legislation would be rationally related if the legislation would not have even a "noticeable effect."  Is that the level of rational basis scrutiny?  As long as the legislation has or could have an effect greater than zero, even if not noticeable?  That is quite a bit of deference there.  I would hope that rational basis scrutiny would require some estimation that the legislation would effect its goals to a noticeable degree.  If the Con Law scholars out there say "nope," then I'll just shake my head and be quiet.

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Congress is holding hearings relating to the idea of a constitutional amendment to bar recognition of gay marriages. Understandably, as people consider changes to traditional notions of marriage, the discussion often turns to polygamy. I am a member of the Church of Jesus Christ of Latter-day Saints, and I normally reserve blogging on topics related to my Church for Times & Seasons, the most visited site in the Mormon Bloggernacle. In reading about yesterday's hearings, however, I encountered this statement: "No doubt many Mormon men in America consider themselves married to several women."

The speaker was Gerard V. Bradley, a law professor at the Notre Dame Law School and someone who should know better. In the event that others are similarly confused, here is an official press release of the Church from 2000 on this issue (emphasis added):

The terms Mormon fundamentalist, and Mormon splinter group are regularly, albeit inaccurately, used by some news media outlets to describe individuals or organizations who embrace the practice of polygamy. Such use of these terms is misleading, since they imply that the individual or organization described is affiliated in some way with "the Mormons" or "the Mormon church".

The term Mormon is a nickname applied exclusively to members of The Church of Jesus Christ of Latter-day Saints or to that church (see The Associated Press Stylebook). It is not accurately applied to any other person or organization.

Polygamists and polygamist organizations that occasionally make the news are not dissident wings of the Church. They have no affiliation whatsoever with The Church of Jesus Christ of Latter-day Saints. Since those who practice polygamy today are not affiliated with "the Mormon church", and since they are not "Mormons", a more accurate and less misleading description of them in the media would be polygamist, or polygamous sect or polygamous church or polygamous group or polygamous movement, etc.

Now you know, so you won't embarrass yourself in front of Congress.

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