Chevron and the Hobby Lobby Decision

Posted on Categories Business Regulation, Public, Religion & Law, U.S. Supreme Court4 Comments on Chevron and the Hobby Lobby Decision

Hobby Lobby logoThe majority opinion in the Supreme Court’s decision in the Hobby Lobby case is founded on the Religious Freedom Restoration Act (RFRA) and the restrictions it places on the Secretary of Health and Human Services (HHS) when she regulates and enforces the Affordable Care Act (ACA). While the issues raised by Justice Ruth Bader Ginsburg’s dissenting opinion as to the battle of interests protected by the Constitution are significant, an important practical legal issue that was not addressed in the Hobby Lobby case is the power of HHS to interpret the meaning of the ACA. Considering the majority’s reliance on two terms that go undefined by the Court — “sincere religious belief” and “closely held corporation” [see page 29 of the slip opinion and footnote 28] — and the fact that none of the other Hobby Lobby opinions address the meaning of these terms, it is essential that these terms be defined as they fit into the ACA context.

The Court’s failure to address how HHS might interpret the meaning of these terms is reasonable considering that HHS has not acted to interpret the meaning of a “sincere religious belief” or a “closely held corporation” in the context of the ACA. In fact, the majority states explicitly that courts will be able to separate those with “sincere religious beliefs” from those who do not. However, despite the majority’s reference to the ability, and impliedly the power, of courts to interpret the terms “sincere religious beliefs” and “closely held corporations,” terms such as these have been regularly interpreted by federal agencies as they apply to the statutes these agencies enforce. Continue readingChevron and the Hobby Lobby Decision”

American Needle, Inc. v. National Football League: Surprise! The Supreme Court Upholds an Existing Antitrust Doctrine*

Posted on Categories Business Regulation, U.S. Supreme CourtLeave a comment» on American Needle, Inc. v. National Football League: Surprise! The Supreme Court Upholds an Existing Antitrust Doctrine*

[Editors’ note: This is the second in our series, What Is the Most Important U.S. Supreme Court Case in Your Area of the Law? The first installment is here. In this post, Prof. Waxman focuses on an important Supreme Court case from the last term.]

Last spring in American Needle, Inc. v. National Football League, 130 S. Ct. 2201 (2010), the United States Supreme Court reversed two lower court decisions and held that under Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984), National Football League Properties (NFLP) was not a single entity but rather a collection of different entities with “independent centers of (business and economic) decision-making.” In Copperweld, the Court held that parties within a corporate entity or closely held affiliate (e.g. a wholly owned or controlled subsidiary) are to be treated as a single entity under the antitrust laws (despite the possible treatment as separate entities under corporation law) and therefore not subject to Section 1 of the Sherman Antitrust Act. By its decision in Copperweld, the Court in effect invited parties that might otherwise be treated as more than one entity under the Sherman Act to assert that they fall under the “single entity” category. Historically, despite efforts by many sports leagues to try various business arrangements to fit under the single entity category, courts have denied regularly these assertions based on the understanding that the arrangements were really vehicles controlled by multiple parties with different corporate and economic interests. Continue readingAmerican Needle, Inc. v. National Football League: Surprise! The Supreme Court Upholds an Existing Antitrust Doctrine*”

How Do You Avoid Malpractice When Representing Clients in Foreign and International Matters?

Posted on Categories International Law & Diplomacy, Legal Practice1 Comment on How Do You Avoid Malpractice When Representing Clients in Foreign and International Matters?

globeMany attorneys representing domestic clients extend their legal advice to foreign and international matters.  Unfortunately, some of these attorneys are ill-prepared to provide this advice. Not only are they not familiar with the basic operation of other legal systems, such as those derived from the Civil Law tradition, they are unfamiliar even with the Common Law systems that vary from the U.S.

Domestically, a lawyer is rarely found to have committed malpractice merely because she or he is unfamiliar with the current state of the law in her or his own state, much less other states or federal law. Rather, the presumption is that she or he has sufficient general familiarity with the law and possesses the skills necessary to collect knowledge about the law to provide effective counsel.  This is true even for highly specific legal subject matters such as antitrust or securities law (the one significant exception may be patent law). So, if a practitioner does not commit malpractice when advising a client without knowledge of the specific domestic law, why would the standard differ for foreign and international legal matters?  Continue reading “How Do You Avoid Malpractice When Representing Clients in Foreign and International Matters?”

The Sotomayor Hearings: Supreme Court Citations to International and Foreign Law

Posted on Categories Constitutional Interpretation, International Law & DiplomacyLeave a comment» on The Sotomayor Hearings: Supreme Court Citations to International and Foreign Law

As the Senate hearings addressing the nomination of Judge Sonia Sotomayor to the United States Supreme Court proceed through the thickets of legal concerns, one issue that appears to be rather arcane to the average American may be among the most significant. Indeed, it reflects a philosophical dispute that underlies many of the questions at the hearings. Does Judge Sotomayor believe the Supreme Court should be able to cite international and foreign law in its decisions? Let’s be frank: considering some of the esoteric sources cited in many Supreme Court opinions, why would anyone spend more than a moment on what sources the Court will refer to? Yet, this issue has become a focus of significant debate.

Although many members of the Court have cited to international and foreign law at one time or another (including Justices William Rhenquist, Antonin Scalia, Sandra Day O’Connor), none have asserted that international and foreign law have any determinative or precedential value in the U.S. legal system. Moreover, citation to international and foreign law in common law cases has rarely been challenged. Rather, the issue is centered on the reference to international and foreign law when the Court is addressing the Constitution. In fact, this issue has served as a cloak for the ongoing debate between the “originalists” (those who assert that the original wording of the Constitution and its context at the time are the sole measure as to the meaning of the Constitution) and the “evolutionists” (those who assert that we must measure the meaning of the Constitution with at least an eye on its contemporary context) over the appropriate way to interpret the Constitution. In effect, the “originalist” argument states that to allow reference to foreign and international law is not merely to align oneself with foreign interpretations that could be inconsistent with the context of American constitutional law (because the sources and therefore the meaning arises in different contexts), but that the use of these foreign sources undermines the very meaning of the Constitution’s drafters and by implication American sovereignty itself. Therein lies the bedrock debate: although international and foreign law is neither mandatory nor precedential, the fear is that these references will be used as tools to pervert the essence of the “originalist” philosophy of constitutional purity.  Continue reading “The Sotomayor Hearings: Supreme Court Citations to International and Foreign Law”

The New China Syndrome

Posted on Categories Business Regulation, International Law & Diplomacy3 Comments on The New China Syndrome

chinese-flagSince last month China has been on an economic rampage that could have serious long- term effects on the United States and Europe. While Americans have been inundated with a vast and steady diet of “news” focused on personalities (the ongoing deaths of Michael Jackson and Farrah Fawcett and the death-like experiences of Governor Mark Sanford, Senator John Ensign, and Governor Sarah Palin, just to name a few) the economic movements in China that will have a much more significant impact on Americans and their futures have gone virtually unreported by both the American major print and electronic reporting media. Unlike American media, foreign news services have given front-page coverage and deep analytical assessments of China’s economic developments.

Examples of these significant developments include:  Continue reading “The New China Syndrome”

Federal Government Antitrust Policy Returns to Reality

Posted on Categories Business RegulationLeave a comment» on Federal Government Antitrust Policy Returns to Reality

Last fall, I commented on this blog about the potential effect of an Obama administration on the nature of antitrust enforcement in the United States. In particular, I noted that a new Obama administration might focus on repairing the lack of antitrust enforcement that had resulted over the past few years through a slavish adherence to Chicago School analysis. On Monday of this week, Christine Varney, Assistant Attorney General for the Antitrust Division, revealed an antitrust plan for the Department of Justice that removed any doubts that the Obama administration is shifting dramatically from the “theoretical economics” laden Chicago School antitrust philosophy and practices that dominated the enforcement goals of the Bush administration to a pragmatic antitrust policy based on the realities in the marketplace.

Rejecting the “laissez-faire” views that the Antitrust Division had practiced over the past eight years and attempted to enshrine in a policy statement in 2008, Ms. Varney declared that small- and medium-sized competitors, suppliers, and distributors are encouraged to whistle-blow on any anticompetitive practices. Indeed, she stated the government would welcome hearing from those who were suffering at the hands of dominant entities. Although Ms. Varney did not go so far as to adopt the European Union view of dominance as against the evolved modern American view that monopoly in itself is legal and that the burden is on the plaintiff to show that the defendant had attempted to further its monopoly position through anticompetitive practices, she hinted that challenges based on dominance will be given a much more welcome hearing. Moreover, Ms. Varney indicated that mergers will be scrutinized very carefully, especially in certain sectors of the economy.  Continue reading “Federal Government Antitrust Policy Returns to Reality”

Priorities for the Next President: Antitrust Law

Posted on Categories Business Regulation, President & Executive Branch, U.S. Supreme Court2 Comments on Priorities for the Next President: Antitrust Law

The priority of the new administration in the field of antitrust law will be to undo the damage wrought by Chicago School dogmatists. This does not mean that the economic theories that form the basis of Chicago School economics or its application are incorrect. But, the broad assault by academic, bureaucratic, and juristic theorists over practical reality that has gained significant momentum during the administration of George Bush the younger (hereafter the Bush Administration) has struck down the existing antitrust legal analysis without regard to precedent, evidence, jury findings, and the value to society of private attorneys general in the enforcement of antitrust laws.  During the Bush Administration, the older Chicago School theorists on the United States Supreme Court and the lesser appellate courts have joined with new appointees to alter in many basic ways the structure of antitrust law, e.g., they have undone the per se standard for vertical minimum price-fixing, created high barriers for plaintiffs at the pleading stage for antitrust cases so that it is difficult to avoid dismissal prior to discovery, and strengthened the freedom of monopolists to refuse to deal with parties dependent on what they sell and thereby to avoid greater competition for whatever their products may be used to produce.

Continue reading “Priorities for the Next President: Antitrust Law”