Archive for the ‘administrative law’ Category

“Preliminary Injunctions in the Obamacare Religious-Objection Lawsuits II: An Amicus Brief for Mersino v. Sebelius”

August 18th, 2013 No comments

I’ve just filed and SSRN’d another preliminary injunction amicus brief, this one for the 6th Circuit in Cincinnati: “Preliminary Injunctions in the Obamacare Religious-Objection Lawsuits II: An Amicus Brief for Mersino v. Sebelius”. The abstract is below. Read more…

“Delay until They Die”

July 29th, 2013 No comments

Professor Fleischer’s May 16 “A Dickensian Delay at the I.R.S.” at the NYT isn’t looking so good. He said,

Long delays are evidence of ineptitude and a reluctance to tackle difficult issues, not evidence of a political conspiracy. It may be the case that a couple of I.R.S. employees went rogue, as the acting I.R.S. commissioner, Steven T. Miller, suggested on Wednesday before he was ousted from the job.

Aggressive investigation of those individuals may be appropriate. But firing Mr. Miller, as President Obama did on Wednesday, is mere tokenism. The witch hunt obscures the institutional failures that Congress could actually correct.

By now we have heard the testimony of the Cincinnati people, who say Mr. Miller’s IRS was lying when it tried to blame them, Read more…

Can the President Delay Obamacare Despite the Statutory Language?

July 12th, 2013 No comments

Someone wrote to me about another Law Lunch discussion of yesterday:

“…Jefferson’s refusal to spend $50,000 for gun boats in 1803, after they were no longer needed. Better yet, compare the more recent example of the Secretary of Housing and Urban Development temporarily suspending funds pending a study of whether the expenditures on low income housing were achieving the purpose Congress intended. That was upheld by the DC Circuit in Commonwealth of Pennsylvania v. Lynn, 1974, with the court noting the fact that the reason for the impoundment was program-related. I see a fundamental difference between refusing to enforce the law because the President wishes it had never been passed and delaying enforcement because the President likes the law and wants it to achieve its substantive goals. Read more…

What Happens When a Void Appointee Gets Appointed Again, But Properly the Second Time?

July 12th, 2013 No comments

At Volokh Conspiracy John Elwood says that even if the President properly reappoints the same people to the National Labor Relations Board whose appointments the courts have ruled invalid, they can’t just redecide all the cases that are in the courts. Read more…

Categories: administrative law, authority Tags:

An Amicus Brief for Hobby Lobby v. Sebelius on the Topic of Balancing the Equities for a Preliminary Injunction

July 3rd, 2013 No comments

I looked over the recent Hobby Lobby en banc decision and thought about it. Everybody seemed to be missing the most important things in the case. Then, yesterday, I realized that the deadline for submissions for the next stage was today (July 3) at 5 p.m. At 2 p.m. I rushed into action. I was able to use my draft amicus for United States v. Marshall as a template, though it’s a different circuit and Hobby Lobby is at District Court right now, for which there are no official rules. Read more…

Preliminary Injunctions and Regulatory Tyranny

June 25th, 2013 No comments

It looks to me as if something is very wrong with the law of preliminary injunctions when it comes to the executive branch misusing its power. Here is what is supposed to happen. Smith sues Jones, asking the court to do X. For example, Smith may ask the court to stop Jones from selling a dog Smith claims is Smith’s dog. If doing X right away instead of in a year or two after a trial would prevent irreparable harm to Smith but not to Jones, then Smith can ask the court to do X immediately, via a preliminary injunction. Then, after the trial, the court will undo X if Smith loses. Read more…

Categories: a.research, administrative law, law Tags:

The IRS Scandal— Picking on the Little Guys

June 25th, 2013 No comments

This isn’t the typical tax case, where a lawyer is helpful so the client can avoid breaking the law, or the somewhat rarer one where the lawyer helps the client fix a mess after the client accidentally breaks the law, or the even rarer kind where the lawyer helps the client after client purposely breaks the law. This is a case where a lawyer is helpful so the IRS doesn’t think *it* can get away with breaking the law. Read more…

Categories: administrative law, bureaucracy, IRS Tags:

Should Victims Be Able to Sue Corrupt Judges

November 28th, 2009 No comments

From VC:

Now comes news that the judges are immune from suit arising from any and all of their “judicial acts” in connection with the sentencing of these juveniles. [Stories are here and here; the opinion in the case conferring absolute immunity on the defendant judges (Middle District of PA, Judge Caputo) is here). Judge Caputo’s opinion conferring the immunity is thoughtful and well-reasoned…

My comment:

Very interesting problem, and you’re right that it’s not an easy one. We definitely want the judge to have criminal liability, I think (some people might want to limit it to impeachment) and we want the corrupt cases to be subject to review, so the only question is whether the victim— the losing side— should be able to sue the judge or the government for money damages besides.

What is the case with corrupt policemen? (Section 1983?) Can they be sued personally?

We also have a second-best situation. As the Court says, we’d have a huge amount of meritless litigation harassing judges. I say that is “second-best” because it is the fault of bad policy created by the judiciary itself, which for the past 50 years has encouraged nuisance suits generally. If judges would use their powers to punish lawyers who bring meritless suits, the problem would dwindle. Maybe making judges personally vulnerable to legal harassment and wacko juries would change the judiciary’s mind about whether trial lawyers should be given every freedom to sue corporations.

Categories: administrative law, judges, law, research Tags:

The Ricci Case

June 30th, 2009 No comments

The Supreme Court’s Ricci decision of yesterday is good evidence that Sonia Sotomayor is devious and unjust. Not a single justice supported her decision supporting summary judgement against the white New Haven firefighters without even the dignity of a published opinion explaining why. The 4 in dissent did support summary judgement for the employer, but in a weird, dishonest, way of their own. I suppose they were trying to give some color of support to Sotomayor. But looking into this case, it makes me think Sotomayor and her panelmates should have been impeached for her conduct in it, as clearly intending to evade enforcement of the law.

The big issue in contention is whether an employer can truly discriminate against whites because he is afraid that if he doesn’t, he will falsely be accused in court of discriminating against blacks. The answer seem to me pretty clearly to be No, and of course any liberal would accept that answer if it were a case of an employer turning down better qualified black applicants because he was afraid that if he treated blacks and whites equally he would be hauled into court on the grounds that he was practicing illegal affirmative action against whites. Liberal judges are result-based.

But we can at least hope that liberal judges will be procedurally fair. There are three ways this case could have proceeded:

1. The Supreme Court rules that the “fear of being sued” defense is valid, and then returns the case to a lower court for that court to find out if employer actually did have a fear of being sued instead of using that as a pretext.

2. The Supreme Court rules that the “fear of being sued” defense is valid, and then grants summary judgement to the employer, saying that it is utterly clear that the employer’s motive was fear of being sued and not an illegal desire to discriminate.

3. The Supreme Court rules that the “fear of being sued” defense is invalid, and grants summary judgement to the firefighters, since the city has offered no other plausible defense for its discrimination.

The Majority chose option 3. The Dissenting 4 Liberals chose 2– which is dishonest. I suppose one could reasonably doubt whether political pressure and desire to promote blacks instead of whites were important reasons, but one cannot say that it is so utterly obvious that the employer’s motives were entirely unpolitical and color-blind that a reasonable judge or jury could not find otherwise and there is no need to look at the evidence. As Alito’s concurrence says:

[T]he decision below, which sustained the entry of summary judgment for respondents, cannot be ffirmed unless no reasonable jury could find that the City’s asserted reason for scrapping its test—concern about disparate-impact liability—was a pretext and that the City’s real reason was illegitimate, namely, the desire to placate a politically important racial constituency….But even the District Court admitted that “a jury could rationally infer that city officials worked behind the scenes to sabotage the promotional examinations because they knew that, were the exams certified, the Mayor would incur the wrath of [Rev. Boise] Kimber and other influential leaders of New Haven’s African-American community.” 554 F. Supp. 2d 142, 162 (Conn. 2006), summarily aff’d, 530 F. 3d 87 (CA2 2008) (per curiam).

It’s noteworthy that Justices Kennedy and Roberts wouldn’t sign on to this concurrence. I treat that as a sign they don’t dare fight injustice and lying if it’s done by important people they need to work with.

The dissent goes into detail about Rev. Kimber and the evidence. It’s amazing.

Reverend Boise Kimber, to whom the District Court referred, is a politically powerful New Haven pastor and a self-professed “‘kingmaker.’” App. to Pet. for Cert. in No. 07–1428, p. 906a; see also id., at 909a. On one occasion, “[i]n front of TV cameras, he threatened a race riot during the murder trial of the black man arrested for killing white Yalie Christian Prince….In 1996, for example, Mayor DeStefanotestified for Rev. Kimber as a character witness when Rev. Kimber—then the manager of a funeral home—was prosecuted and convicted for stealing prepaid funeral expenses from an elderly woman and then lying about the matter under oath. See id., at 126a, 907a. “Reverend Kimber has played a leadership role in all of Mayor DeStefano’s political campaigns, [and] is considered a valuable political supporter and vote-getter.” …In 2002, the Mayor picked Rev. Kimber to serve as the Chairman of the New Haven Board of Fire Commissioners (BFC), “despite the fact that he had no experience in the profession, fire administration, [or] municipal manage-ment.” Id., at 127a; see also id., at 928a–929a. In that capacity, Rev. Kimber told firefighters that certain new recruits would not be hired because “‘they just have too many vowels in their name[s].’” Thanawala, New Haven Fire Panel Chairman Steps Down Over Racial Slur, Hart-ford Courant, June 13, 2002, p. B2. After protests about this comment, Rev. Kimber stepped down as chairman of the BFC, ibid.; see also App. to Pet. for Cert. in No. 07–1428, at 929a, but he remained on the BFC and retained “a direct line to the mayor,” id., at 816a….Petitioners allege, and the record suggests, that the Mayor and his staff colluded “sans the Chief[s]” because “the defendants did not want Grant’s or Dumas’ views to be publicly known; accordingly both men were prevented by the Mayor and his staff from making any statements regarding the matter.”….Reverend Kimber again testified and threatened the CSB with political recriminations if they voted to certify the test results:

“I look at this [Board] tonight. I look at three whites
and one Hispanic and no blacks. . . . I would hope that
you would not put yourself in this type of position, a
political ramification that may come back upon you as
you sit on this [Board] and decide the future of a
department and the future of those who are being

Corporation Counsel Ude bristled at one board member’s suggestion that City officials were recommending against certifying the test results. See id., at 215a (“Attorney Ude took offense, stating, ‘Frankly, because I would never make a recommendation—I would not have made a recommendation like that’”)….Soon after the CSB voted against certification, MayorDeStefano appeared at a dinner event and “took credit for the scu[tt]ling of the examination results.”…

Taking into account all the evidence in the summary judgment record, a reasonable jury could find the follow-ing. Almost as soon as the City disclosed the racialmakeup of the list of firefighters who scored the highest on the exam, the City administration was lobbied by aninfluential community leader to scrap the test results, andthe City administration decided on that course of action before making any real assessment of the possibility of a disparate-impact violation. To achieve that end, the City administration concealed its internal decision but worked—as things turned out, successfully—to persuadethe CSB that acceptance of the test results would be ille-gal and would expose the City to disparate-impact liability. But in the event that the CSB was not persuaded, the Mayor, wielding ultimate decisionmaking authority, was prepared to overrule the CSB immediately. Taking this view of the evidence, a reasonable jury could test resultswas not a concern about violating the disparate-impact provision of Title VII but a simple desire to please a politi-cally important racial constituency….

It is noteworthy that the Solicitor General—whose position on the principal legal issue in this case is largely aligned with the dis-sent—concludes that “[n]either the district court nor thecourt of appeals . . . adequately considered whether, view-ing the evidence in the light most favorable to petitioners, a genuine issue of material fact remained whether respondents’ claimed purpose to comply with Title VII was a pretext for intentional racial discrimination . . . .” Brief for United States as Amicus Curiae 6; see also id., at 32–

The dissent authored by Justice Ginsburg is rather confused on how it comes out in the end. She says :

Ordinarily, a remand for fresh consideration would be in order. But the Court has seen fit to preclude further proceedings. I therefore explain why, if final adjudication by this Court is indeed appropriate, New Haven should be the prevailing party.

and later

As earlier noted, I would not oppose a remand for further proceedings fair to both sides. See supra, at 26, n.


What she is supposed to be saying in her dissent is precisely whether “final adjudication by this court is indeed appropriate”. It is just weird to say that since the Majority says summary judgement for the firefighters is best, she can’t say remand is best.

Categories: administrative law, race, sotomayor Tags:

Obscenity in Monroe County

April 23rd, 2009 No comments

The HT tells us that obscenity can indeed be successfully prosecuted in Monroe County.

A man initially charged with felony bestiality for participating in and videotaping a sexual encounter that also involved an unconscious woman and the man’s male Doberman pinscher has pleaded guilty to a less serious charge.

He received a one-year suspended jail sentence.

Under terms of a plea agreement, 41-year-old Thomas Meador pleaded guilty to an amended charge of activity related to obscene performance, a misdemeanor. Two other misdemeanors — sexual battery and maintaining a common nuisance for having a marijuana plant in his East First Street house — were dismissed.

Here’s the penalty:

Meador had to give up his two pet dogs as part of the resolution of the case against him. He also must participate in counseling and complete 80 hours of community service work during the next year.

It’s noteworthy that the woman involved was being filmed involuntarily. Not much of a crime, apparently.

According to police reports, the woman depicted in the video that police confiscated from Meador after a house-sitter discovered it features a 30-year-old female acquaintance of Meador who was unaware she was being filmed.

The term “obscene performance” is defined by law as something that the average person, applying contemporary community standards, would find appeals to the prurient interest in sex, or depicts sexual conduct in a “patently offensive way.” It also must lack any “literary, artistic, political or scientific value.”

The Function of the Office of Legal Counsel

April 1st, 2009 No comments

More on the Holder overruling of the OLC. The Washington Post reported

In deciding that the measure is unconstitutional, lawyers in the department’s Office of Legal Counsel matched a conclusion reached by their Bush administration counterparts nearly two years ago, when a lawyer there testified that a similar bill would not withstand legal attack.

Holder rejected the advice and sought the opinion of the solicitor general’s office, where lawyers told him that they could defend the legislation if it were challenged after its enactment….

Through a spokesman, Holder portrayed the basis for his override of the OLC ruling as grounded in law, not politics.

“The attorney general weighed the advice of different people inside the department, as well as the opinions of legal scholars, and made his own determination that the D.C. voting rights bill is constitutional,” Matthew Miller said. “As the leader of the department, it is his responsibility to make his best independent legal judgment, and he believes that although there are reasonable arguments on both sides of the issue, ultimately the bill would constitutionally grant D.C. residents a right to elect a voting representative in Congress.”

I finally found a leftwing comment on this. Mark Tushnet says that Holder has not taken any formal, legally binding, action, yet and the bill hasn’t passed either, so nothing has happened.

It seems Tushnet is wrong, though. It is true there is not action yet, but that is like saying the “torture memo” was unimportant because when it was issued, no actual interrogation had occurred yet. What Holder has said is that for any DOJ action that depends on the legal question of whether the DC bill is unconstitutional, he is overruling the OLC and the Department is to act as if the bill is constitutional.

A VC comment of mine on AG Holder’s decision to back the DC Representation bill in court:

This is of course a much clearer case than in the Bush Administration of the top political leaders overruling the civil service lawyers on a legal stance. So I hope the people who objected to John Yoo’s stance call for AG Holder’s disbarment even more strongly.

As for myself, though, I find it appalling that anyone thinks the civil service lawyers ought to be making these decisions instead of the elected leaders. The OLC is just a bunch of staffers (mostly civil service staffers– i.e., lawyers who couldn’t get better jobs and who probably have strong ideological preferences). Staffers are supposed to give their best technical expertise to the organization leader, who then makes the actual decision– in this case, What Shall the Executive Branch’s Position be on the DC Bill? I do think the bill is blatantly unconstitutional, but I didn’t get elected President and I’m not on the relevant court. I say: Let Holder and Obama defend the position they want in court. And the opinion of his staffers should not be admissible there.

Are There Any Law Professors Who Do Pro-Death Penalty Scholarship?

March 31st, 2009 No comments

Orin Kerr asks:

Who are the legal scholars who write on the death penalty on a regular or semi-regular basis but who do not write from the perspective of opposition to the death penalty? Stuart Banner might be one: I’ve only skimmed his book on the death penalty, but it struck me as largely neutral in tone. Are there others? I realize that most legal scholars who write on the death penalty are against it; I’m just curious about who the outliers are….

Paul Cassell):
In my pro-con book of the deasth penalty [mentioned above], I had a hard time tracking down pro-death penalty scholars from the legal academy. We ended up using Louis P. Pojman,a professor of philosophy at the U.S. Military Academy for one of the pieces.
3.30.2009 5:59pm

Thanks, Paul.

Yes, I’m reminded of the panel at the AALS mid-year meeting 2 years ago on how you could bring a diversity of different views of the death penalty to enrich the debate. The panel was made up only of death penalty critics, who had their own different takes on how to oppose the death penalty (using statistics, history, etc.).

More on Phthalates

March 8th, 2009 No comments

Below is the law on enforcement of the phthalate regulation on selling products with phthalates in them (certification is another aspect). Phthalates are a chemical that softens plastics. There seems to be no evidence whatsoever that it causes damage in anyone but pregnant women (and that evidence is all from rats, I think), judging from what *proponents* of the regulation say. Opponents might even doubt that.

  1. Guidance on the Consumer Product Safety Improvement Act (CPSIA) for Small Businesses, Resellers, Crafters and Charities.

  2. National Resources Defense Council v. US Consumer Product Safety Commmission,

    08 Civ. 10507, SD NY, Gardephe. J.

  3. “The Case Against
    Phthalates in Children’s Toys”
    , Huffington Post, (March 24, 2008).

  4. Human Breast
    Milk Contamination with Phthalates and Alterations of Endogenous Reproductive
    Hormones in Infants Three Months of Age
    , Katharina M. Main et al. ,
    Environmental Health Perspectives Volume 114, Number 2, February 2006.



  6. Time’s Toy
    Reporting Scares Parents

    Trevor Butterworth, December 13, 2006.

  7. Section 108: Products Containing Certain Phthalates,

  8. Whole Soy Story: The Dark Side of America’s Favorite Health Food

  9. A National Review article that says pre-1985 children’s books are illegal because of lead in the ink.

  10. National Bankruptcy Day
    ,, Jan 2nd, 2009.

Here are the ENFORCEMENT sections:

SEC. 19. [15 U.S.C. § 2068]
(a) It shall be unlawful for any person to—
(1) sell, offer for sale, manufacture for sale, distribute in
commerce, or import into the United States any consumer product, or
other product or substance that is regulated under this Act or any
other Act enforced by the Commission, that is not in conformity with
an applicable consumer product safety rule under this Act, or any
similar rule, regulation, standard, or ban under any other Act
enforced by the Commission;

Meaning: You can’t sell a toy with phthalates in it.

SEC. 20. [15 U.S.C.§ 2069] {penalties increased; see 69 FR 68884}

(a) (1) Any person who knowingly violates section 19 [15 U.S.C. §
2068] of this Act shall be subject to a civil penalty not to exceed
$100,000, for each such violation….

(2) The second sentence of paragraph (1) of this subsection shall not
apply to violations of paragraph (1) or (2) of section
(A) if the person who violated such paragraphs is not the manufacturer
or private labeler or a distributor of the products involved, and
(B) if such person did not have either (i) actual knowledge that his
distribution or sale of the product violated such paragraphs or (ii)
notice from the Commission that such distribution or sale would be a
violation of such paragraphs

Meaning: If you “knowingly” sell a toy with phthalates in it, you can
be fined up to $100,000. Paragraph (2) says, by implication, that you
can be fined even if you are a retailer who did not “have actual
knowledge” that you were violating the law. It’s unclear to me whether
you’re in trouble if you sell a toy with phthalates in it when you
didn’t know it had phthalates in it. I think you *are* in trouble,
from what I could tell from the FAQs. Someone who knows criminal law
would know, from the language here.

SEC. 21. [15 U.S.C. § 2070]
(a) Violation of section 19 of this Act is punishable by—
(1) imprisonment for not more than 5 years for a knowing and willful
violation of that section;

Meaning: If you know a toy has phthalates and you sell it anyway,
you might go to jail for 5 years, if the U.S. Attorney doesn’t like
you. This applies even if you only sell one item, and you’re a
charity shop.

SEC. 24. [15 U.S.C. § 2073]

(a) IN GENERAL.–Any interested person (including any individual or
nonprofit, business, or other entity) may bring an action in any
United States district court for the district in which the defendant
is found or transacts business to enforce a consumer product safety
rule or an order under section 15 [15 U.S.C. § 2064], and to obtain
appropriate injunctive relief. Not less than thirty days prior to the
commencement of such action, such interested person shall give notice
by registered mail to the Commission, to the Attorney General, and to
the person against whom such action is directed. Such notice shall
state the nature of the alleged violation of any such standard or
order, the relief to be requested, and the court in which the action
will be brought. No separate suit shall be brought under this section
if at the time the suit is brought the same alleged violation is the
subject of a pending civil or criminal action by the United States
under this Act. In any action under
this section the court may in the interest of justice award the costs
of suit, including reasonable attorneys’ fees (determined in
accordance with section 11(f)) [15 U.S.C. §2060(f)] and reasonable
expert witnesses’ fees.

Meaning: Even if the U.S. Attorney doesn’t go after you because it
would be ridiculous to– in fact, ONLY if the case is too stupid for
them to prosecute— a predatory law firm could do it for profit,
because they get “attorneys’ fees”, which courts are very generous
about, judges being members of the lawyer class and more sympathetic
to them than to ordinary people, or, certainly, to companies.