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*

[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?

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