Topic: Law and Civil Liberties

Patent Defendants Win a Big One

This morning’s Supreme Court opinion in TC Heartland v. Kraft Foods, hinging on what I described in January as a dry point of statutory interpretation, is likely to stand as a landmark win for defendants in patent litigation – and, on a practical level, for fairer ground rules in procedure. A unanimous Court (8-0, Thomas writing, Gorsuch not participating) rejected the broad reading of a venue statute by which the Federal Circuit had empowered lawyers to forum-shop disputes from all over the country into a few decidedly pro-plaintiff venues, above all the largely rural Eastern District of Texas. From here out, defendants can still be sued in a district such as E.D. Tex. if they have a regular and established place of business in it, but the decision is likely to shrink what I called in my January preview a “jackpot patent litigation sector… that shifts around billions of dollars.” By redirecting cases into more neutral venues, it should bring outcomes closer to reflecting cases’ actual merits, which would in turn do much toward restoring confidence in this sector of the law.

If Congress believes the Court has erred it is free to restore patent venue to a more shopper-friendly set of rules. But after the experience of recent years, it is unlikely that a Congress of either party or any likely political complexion will have an appetite for doing that.

Oklahoma Lawmakers Inadvertently Enact Loser-Pays

According to news reports last week, the legislature in Oklahoma passed, and Gov. Mary Fallin then signed, a bill whose wording directs judges to award reasonable attorneys’ fees and costs in cases of civil litigation. The provision was part of a bill on certain child abuse lawsuits, and its Senate sponsor said it was believed that the fee provision applied only to those cases until on a closer reading “it seems evident that it makes all civil cases … loser pays,” said Sen. David Holt. “But nobody caught that.”

As someone who has been writing in favor of the loser-pays principle since my first book, The Litigation Explosion, you might expect my reaction to this news (once I stopped laughing) to be positive. After all, there’s nothing wrong with a legislature enacting good policies through inadvertence. (For some legislatures, that seems to be the only way they do enact good policies.)

Sober second thoughts, however, will be less cheerful. Most advanced legal systems around the world follow versions of a loser-pays rule, but generally with the advantage of long experience that has allowed kinks to be worked out through Hayekian evolution, code tinkering, or both. Even the state of Alaska, the only one of the 50 to follow the principle, traces its experience back to 19th century territorial days. A well-functioning system must reflect a lot of embodied knowledge about how to handle the many intermediate cases (where both sides win on some issues, for example, or when a case wins but recovers no more than had previously been on the table as a settlement offer). Completely different results and incentives can be expected if fee shifts are set at artificially high levels (say, on a rationale of encouraging more assertion of the claim in question) than if their amount is low-balled.

Where there is no evolved local tradition, trying to design a system from scratch means either tying judges’ hands, inviting one set of problems, or accepting that they will use their discretion in perhaps surprising ways. Would you have guessed, for example, that language explicitly and neutrally providing for two-way fee shifts would at length be interpreted to entitle prevailing plaintiffs, but not prevailing defendants, to collect fees in ordinary cases? That’s what has happened in many employment discrimination cases in federal court.

Assuming Oklahoma goes ahead and does not look back, it will be placing a lot of confidence in its judiciary to learn fast and resolve a lot of issues on the fly. 

Methods of Presidential Defenestration

How do you solve a problem like the Donald? In a much-discussed column that ran Tuesday, Ross Douthat offered “The 25th Amendment Solution for Removing Trump.” Our 45th president has, by now, Douthat argues, demonstrated a breathtaking lack of the minimum requirements for the position he holds: including “managerial competence, a decent attention span… [and] a measure of restraint and self-control.” But given that his offenses thus far smack less of “high crimes [than] simple omni-incompetence,” removal under the 25th Amendment, on the grounds that Trump is “unable to discharge the powers and duties of his office,” is constitutionally “more appropriate” than impeachment, Douthat writes.

As a libertarian, I’m a sucker for crazy, longshot ideas, so of course I enjoyed the column. But Douthat’s argument rests on an unexamined assumption: that the impeachment power is categorically unavailable in cases of “omni-incompetence.” I don’t think that’s right. As I argue in a forthcoming piece for Reason magazine, this is the rare congressional power that’s actually broader than Congress believes it to be. (I’m sure Nick Gillespie’s going to love it.) 

The view that you can’t impeach a president for gross incompetence is widely shared, and some of the legislative history behind Article II, section 4, supports it. According to Madison’s notes on the Constitutional Convention, when George Mason moved to add “or maladministration” to the list of impeachable offenses, Madison objected that “so vague a term will be equivalent to a tenure during pleasure of the Senate.” Mason then substituted “high Crimes and Misdemeanors,” and that’s what we ended up with.

But that text does not preclude all cases of “maladministration.” As the Nixon-era House Judiciary Committee report on “Constitutional Grounds for Presidential Impeachment” noted, “at the time of the Constitutional Convention, the phrase ‘high Crimes and Misdemeanors’ had been in use for over 400 years” in British impeachments,” and extended to negligent discharge of duties, “procuring offices for persons unfit and unworthy of them,” and other transgressions falling short of grave criminality. Early American commentators, like Justice Joseph Story, understood the phrase to include offenses “growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties of political office.” 

“What’re You In For?” “Lemonade.”

From a Boston Magazine article about the push for a tax on soft drinks in Massachusetts: 

Caroline Apovian, a professor at the Boston University School of Medicine and the director of the Nutrition and Weight Management Center at Boston Medical Center, says that sugary drinks should be regulated similarly to alcohol.

“We regulate alcohol,” she says. “We do not sell alcohol to children. We tax it and you can’t drink while you are working.”

If the day comes that sugary drinks are regulated like alcohol, I feel that I and many other parents will need to throw ourselves on the mercy of the court. Not only have we procured sweet tea, sports drinks, Dr. Pepper, and similar items for underage members of our household – think of how the law treats procuring controlled beverages for minors! – but, sinking deeper into iniquity, we have even enabled our offspring to set up as dealers and manufacturers themselves, plying their neighbors and friends with the fatal decoctions just to pocket the resulting quarters of revenue. 

And the worst of it, as they never tell you ahead of time, is not the legal consequences we might face if Prof. Apovian had her way: it’s that you wind up squeezing all the lemons yourself.

Obstruction of Justice

President Trump is being accused of “obstruction of justice” because of a conversation that he may have had with former FBI Director James Comey.  According to the news stories, Trump may have asked Comey to lay off his former National Security advisor, Michael Flynn.  In this post I want to briefly examine the legal doctrine of obstruction of justice.

To begin, a basic principle of American criminal law is that the line between what’s lawful and what’s unlawful needs to be clear so we will know, in advance, what conduct might land us in a prison cell.  That’s the gist behind the constitutional prohibition of ex post facto laws.  Laws with vague terms raise the same danger.  When laws are vague, police and prosecutors can abuse their power and trap people.  And that’s the danger with a catch-all doctrine such as “obstruction of justice.”

“Obstruction” has sometimes been defined by the authorities as almost any action that “impedes” an investigation.  Invoking your constitutional right to silence, your right to speak with an attorney, or the attorney-client privilege are sometimes deemed “obstruction.”  Don’t the courts restrain those abuses?  Yes, sometimes they do.  I’m presently editing a book of Judge Alex Kozinski’s legal opinions.  One case, United States v. Caldwell, touches on this subject.  Here is Judge Kozinski:

Under the government’s theory, a husband who asks his wife to buy him a radar detector would be a felon — punishable by up to five years in prison and a fine of $10,000 — because their actions would obstruct the government function of catching speeders. So would a person who witnesses a crime and suggests to another witness (with no hint of threat) that they not tell the police anything unless specifically asked about it.So would the executives of a business that competes with a government-run enterprise and lowers its prices to siphon off the government’s customers. So would co-owners of land who refuse to sell it for use as a military base, forcing the government to go to the extra trouble of condemning it. So would have Elliot Richardson and William Ruckelshaus, had they agreed with each other to quit if asked by President Nixon to fire Archibald Cox. The federal government does lots of things, more and more every year, and many things private parties do can get in the government’s way. It can’t be that each such action is automatically a felony.

I should note that when James Comey served as a prosecutor in New York, he pursued Martha Stewart and went so far as to say that her assertion of innocence was itself a violation of the law!  When Comey worked as assistant attorney general, he also took a dangerously expansive view of what he considered “uncooperative” conduct by business firms.  He expected lawyers for business firms to act as deputies for the federal government, which raised constitutional problems—especially for employees who were unaware of the legal minefield all around them during a purported “internal” investigation.

The Stealth Fusion Center Data Sharing Bill

The attention of most in Congress, the media, and the privacy rights community has been focused this spring on the looming Foreign Intelligence Surveillance Amendments (FAA) Act Section 702 reauthorization fight, generally for good reasons. However, other expansions of domestic surveillance powers and data sharing are getting far less attention—and one such measure before the House today may dramatically expand the kind of information state and local law enforcement agencies can get from the federal government.

Introduced on April 26 by Rep. John Katko (R-NY), the “Improving Fusion Centers’ Access to Information Act” (HR 2169) is designed to plug any “information gaps” in state “fusion centers” by modifying the Homeland Security Act of 2002 to require DHS to

identify Federal databases and datasets, including databases and datasets used, operated, or managed by Department components, the Federal Bureau of Investigation, and the Department of the Treasury, that are appropriate, in accordance with Federal laws and policies, to address any gaps identified pursuant to paragraph (2), for inclusion in the information sharing environment and coordinate with the appropriate Federal agency to deploy or access such databases and datasets;

If the sound of this makes you feel uncomfortable, it should for several reasons—not the least of which is the last-minute decision by the Obama administration to make more raw (and thus potentially unverified or inaccurate) intelligence from the National Security Agency available to the FBI, and thus other law enforcement agencies the FBI decides need the data.

What makes Katko’s bill—which is coming to the House floor under expedited consideration via a legislative procedure known as “suspension of the rules“—even worse is that it ignores the 2012 findings of a Senate Homeland Security Committee report that found that state fusion centers were at best worthless, and at worse Bill of Rights violation factories.

In the press release on the committee report, then chairman Senator Tom Coburn (R-OK) stated, “It’s troubling that the very ‘fusion’ centers that were designed to share information in a post-9/11 world have become part of the problem. Instead of strengthening our counterterrorism efforts, they have too often wasted money and stepped on Americans’ civil liberties.”

Even Lawyers Have the Right to Earn an Honest Living

An Argentine attorney, Maximiliano Gluzman, completed a master’s in law (LL.M.) at Vanderbilt Law School—including a heavy dose of common-law subjects—but was denied an opportunity to sit for the Tennessee bar, even though nobody disputes that he’s an “obviously a very, very qualified” lawyer (as one of the bar examiners conceded) and “one of the very best students” ever to graduate from his school (as its dean put it). In January 2016, however, new bar rules went into effect that essentially prevent foreign students from sitting for the bar by requiring a J.D. from an American law school.

The case is now before the state supreme court. The Beacon Center, Tennessee’s most prominent free-market advocacy group, has filed a brief supporting Mr. Gluzman, which Cato and the Goldwater Institute have joined. Our brief focuses on the right to earn an honest living going back to Magna Carta.

Indeed, Tennessee was founded out of nothing so much as the pursuit of economic opportunity. The state constitution reflects the special importance of the right to earn a living by embedding it in the “Law of the Land” Clause. This provision traces directly to the Magna Carta, a document itself primarily concerned with property rights and the right to earn a living.

While federal courts tend to provide thin protections to this right under the U.S. Constitution, the Tennessee supreme court has long protected it as a “fundamental” right. Importantly, the Tennessee legislature recently reaffirmed that the right was fundamental in the appropriately named “Right to Earn a Living Act.”

Yet the board of bar examiners concluded that Mr. Gluzman’s education in Argentina and at Vanderbilt was not “substantially equivalent” to a J.D.—discounting the right as somehow inapplicable and missing the significance of the Act as a restatement of longstanding Tennessee constitutional doctrine. Under the doctrine of constitutional avoidance, and out of respect for the importance of the underlying right itself, the “substantial equivalency” rule should be read with lenity.

Although Mr. Gluzman’s sterling educational qualifications are beyond reproach, if it is still unclear whether his education satisfies the state bar, the rule should be read to favor the liberty interest and permit his inclusion. Nor is his exclusion demonstrably necessary to protect the public; the tailored way of assessing Mr. Gluzman’s competency would be to simply allow him to take the exam and settle the matter once and for all. That process would at once follow clearly stated legislative priorities and the constitutional principles that gave rise to the Right to Earn a Living Act.

The Tennessee Supreme Court hears Gluzman v. Tennessee Board of Bar Examiners later this spring.