Go here for a very interesting post by my UCLAW colleague Eugene Volokh on a pending SCOTUS case involving a financial adviser who got fired, allegedly due to pressure by state regulators, for making an anti-Obama ad.
Go here for a very interesting post by my UCLAW colleague Eugene Volokh on a pending SCOTUS case involving a financial adviser who got fired, allegedly due to pressure by state regulators, for making an anti-Obama ad.
I was privileged to be asked for a blurb on Jonathan Adler's edited volume Business and the Roberts Court, which I thought was an exceptional contribution to the literature:
"It is commonplace for politicians, journalists, and the public at large to debate whether the Supreme Court is 'pro-business.' As the essays in this outstanding volume demonstrate, however, this is not just the wrong question-it is an inherently incoherent question. One cannot analyze Supreme Court decisions by simply totting up wins and losses from a single term, as many mindless end-of-term articles try doing. Instead, one must take a longer view over many terms. But even if one does so it is rarely obvious that specific decisions can be easily categorized as pro- or anti-business. Accordingly, the contributors to this volume bring to bear a much more sophisticated set of tools to analyze how the Supreme Court affects business. It will therefore require a place on the bookshelf of any lawyer, judge, or academic who cares about the relationship of law and business." -Stephen M. Bainbridge, William D. Warren Distinguished Professor of Law, UCLA School of Law
There's an interesting interview up on SCOTUSblog with Adler about the book. Money quote:
Question: What does it mean for the Supreme Court to be “pro-business”? What sort of definitional and conceptual parameters need to be recognized to begin to answer that question? Then again, are such labels more problematic than helpful?
Adler: That’s really the whole point of the book. In our age of 140-character assessments, there is a push to place a hashtag label on institutions and decisions. But such labels, like “pro-business,” often obscure as much as they reveal. As I discuss in the introduction, there are many different ways one could define “pro-business,” from a willingness to hear business-related cases to a commitment to doctrines that benefit business groups to actual favoritism. More importantly, if we really want to understand how the court approaches specific issues and resolves cases, we need to get beyond the labels and look at the content of the court’s work. Hopefully, this book makes a valuable contribution to that enterprise.
Adler also offers thoughts on how a Trump nominee will affect the court in business cases and various other aspects of the topic. Good read.
I take it we all agree that Merrick Garland's nomination is a dead letter?
As the left-leaning TPM website observed back in October:
TPM went on to explain that:
Outgoing Senate Minority Leader Harry Reid (D-NV) said he is confident that he has laid the groundwork for Democrats to nuke the filibuster for Supreme Court nominees if they win back the Senate in November.
Envisioning Hillary Clinton in the White House and Democrats controlling the Senate, Reid warned that if a Senate Republican minority block her Supreme Court nominee, he is confident the party won't hesitate to change the filibuster rules again.
Such a move would be an extension of what Reid did in 2013 when he was still majority leader, eliminating filibusters (with a simple majority vote) on the President's nominees. There was only one exception: the Supreme Court. As it stands now, Democrats still need 60 votes to move forward with a Supreme Court nominee.
Reid said, however, that could change. ...
"They mess with the Supreme Court, it'll be changed just like that in my opinion," Reid said, snapping his fingers together. “So I’ve set that up. I feel very comfortable with that.”
I'm a supporter of judicial filibusters regardless of whose ox gets gored, as discussed in this post that dealt with the 2005 Gang of 14 deal. But my guess is that the GOP Senate majority will conclude that turn about is fair play. It probably is not Mitch McConnell's first choice, but any Democrat obstructionism on a Trump SCOTUS choice would lead to huge pressure being put on the Senate by the Trump voter base. So I don't see the judicial filibuster surviving in the next Congress.
So who will we see make it onto the Supreme Court, assuming Trump gets to pick somebody? (I'm betting Justice Ginsburg is just kicking herself right now for not hanging it up while Obama was President.)
You will recall that the original list included 10 judges: Steven Colloton of Iowa, Allison Eid of Colorado, Raymond Gruender of Missouri, Thomas Hardiman of Pennsylvania, Raymond Kethledge of Michigan, Joan Larsen of Michigan, Thomas Lee of Utah, William Pryor of Alabama, David Stras of Minnesota, Diane Sykes of Wisconsin and Don Willett of Texas.
The only one I now much about is Willett and that's mainly because I follow his Twitter feed, which suggests he'd make an amusing choice.
The second list added 11 more names: Sen. Mike Lee of Utah, US Court of Appeals Judge Margaret Ryan, Iowa Supreme Court Justice Edward Mansfield, George Supreme Court Justice Keith Blackwell, Florida Supreme Court Justice Charles Candy, US Court of Appeals Chief Judge Timothy Tymkovich, US District Court Judge Amul Thapar, US District Court Judge Federico Moreno and Michigan Supreme Court Chief Justice Robert Young.
Again, not a list about which I know very much. (Hey, I spend my working days studying Delaware judges not federal ones.)
But I wonder if Trump would not be smart to think outside the box and pick Ted Cruz. I'm not a Cruz fan, but everybody I know who has followed his work as a lawyer says he's a very smart and highly skilled lawyer. In the Senate, Cruz is a bomb throwing obstructionist who gums up the works. On the Supreme Court, that side of him would mean he'd out-Scalia Scalia. Plus, it clears Trump's 2020 primary deck of a potentially potent challenger. Finally, Cruz is the least likely person I can imagine that would fall for the Greenhouse effect.
The Current 8
By one scale, Anthony Kennedy has been affected by the Greenhouse effect to a greater degree than any Republican justices except for earl warren and David Souter. Assume Ginsburg leaves the court (one way or another) and, say, Ted Cruz is her replacement. Kennedy would no longer be the deciding vote. Instead (but see below), there now would be a 5-3-1 conservative majority. Does Kennedy go full John Paul Stevens/Harry Blackmun and become a consistent member of the liberal minority? Or does he swing back to the conservative side. My guess is the former. My guess--and I concede it's not a terribly informed one--is that Kennedy is now playing for the adoration of the Washington Post and NY Times editorial boards and the liberal law professors that will write about this period of the Court's history. As Wikipedia reports: "Kennedy displays the concern with his historical image that would lend credence to the Greenhouse Effect, for example by having his clerks clip all news stories about him."
All in all, the three Supreme Court justices over 70 are Kennedy (80), Ginsburg, (83), and Breyer (78). Granted, Supreme Court justices seem to live forever, but Trump still has a chance to replace all three and thereby create 6-3 conservative majority even if Roberts blossoms into a liberal in the Greenhouse. And, if the Chief Justice stays the course, we could be looked at a 7-2 conservative majority with three of the conservatives being under, say, 65. Maybe well under.
The Supreme Court is the reason many conservatives held their nose and voted for Trump. Those folks doubtless will be looking for ways to hold his feet to the fire. Mitch McConnell will have to lead that charge I suspect (or be pushed into doing so).
Gerard Magliocca is thinking similar thoughts about Cruz:
I’m not advocating this, but wouldn’t the President-elect be smart to get Ted Cruz out of the Senate and offer him the Scalia seat. Conservatives would love the pick, he’s clearly qualified, and then Trump wouldn’t have to deal with him anymore. (I’m not thrilled by this prospect, but it does make sense, no?)
I guess I am advocating it and more or less think it'd be a good idea.
As compared to a single-Director structure, a multi-member independent agency also helps to avoid arbitrary decisionmaking and to protect individual liberty because the multi-member structure – and its inherent requirement for compromise and consensus – will tend to lead to decisions that are not as extreme, idiosyncratic, or otherwise off the rails. Cf. Stephen M. Bainbridge, Why a Board? Group Decisionmaking in Corporate Governance, 55 Vand. L. Rev. 1, 12-19 (2002) (summarizing experimental evidence finding group decisionmaking to be superior to individual decisionmaking).
Here. Plus he notes these links:
I recommend Aaron Nielson’s summary at Notice & Comment. See also my co-blogger Stuart Benjamin’s post from yesterday on Kavanaugh’s treatment of relevant precedent, Morrison v. Olson (the decision upholding the constitutionality of the independent prosecutor) in particular.
Our friends at the Washington Legal Foundation reported back in July 2011 that:
Answer: This government agency has undefined and vast powers placed in the hands of an unelected and unaccountable bureaucrat.
Question: What is the Consumer Financial Protection Bureau? ...
The bureau is an unelected, unaccountable government agency operating within the Federal Reserve. In fact, its funds are not even appropriated by Congress; instead, they receive their funding from the Federal Reserve itself drawn from its “excess” earned on assets that previously was returned directly to the Treasury. The law explicitly bars the Congress from reviewing the funding of the bureau under Section 1017 of Dodd-Frank.
There’s also the fact that unlike the SEC, FTC, Consumer Product Safety Commission, and most other government agencies with broad powers, the CFPB is not run by a commission. The director is incredibly powerful, with the ability to implement and enforce all consumer-related laws that relate to the financial industry and credit. The bureau has exclusive rule-making authority to which courts must defer in the interpretation of its own rules, which can only be overturned by a supermajority of the Financial Stability Oversight Council (FSOC, another unelected board, but at least composed of the heads of an alphabet soup of other agencies such as the SEC, CFTC, FHTA, OCC, FDIC, Federal Reserve, and NCIU, as well as the Treasury Secretary). So unless the FSOC (they love acronyms in D.C.) gets around to overturning the CFPB’s decision, it will likely stand because Dodd-Frank took away the power of judicial review from the courts. Article III of the Constitution is repeatedly violated throughout the financial reform bill.
Well, it turns out somebody in Washington still cares about the Constitution, because as the WSJ reports today:
A federal appeals court delivered a strong rebuke to the government’s new consumer-finance watchdog, declaring the agency’s unusual independence to be unconstitutional, and ordering its powers be curbed. ...
If it stands, the decision from the U.S. Court of Appeals for the District of Columbia would reduce the agency’s independence, empowering the White House to supervise the agency and remove its director, in contrast to the current arrangement where the director’s five-year term is intended to outlast a president’s. ...
In Tuesday’s ruling by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, Judge Brett Kavanaugh, a George W. Bush appointee, wrote that Congress gave the CFPB director “more unilateral authority than any other officer in any of the three branches of the U.S. government, other than the president.” He said the problem of checks and balances was particularly acute because the CFPB “possesses enormous power over American business, American consumers and the overall U.S. economy.”
The appeals court allowed the CFPB to continue operating as an agency but ordered a restructuring of how it operates in the executive branch.
Of course, as usual, the Obama administration plans a campaign of massive resistance:
“The bureau is considering options for seeking further review of the court’s decision,” a CFPB spokeswoman said, adding the ruling “will not dampen our efforts or affect our focus on the mission of the agency.”
In an op-ed that must have been sitting in his computer ready to go, Thomas Boyd opines that:
The federal Consumer Financial Protection Bureau wasn’t declared unconstitutional on Tuesday, as many conservatives had hoped. But a split decision from the U.S. Court of Appeals for the D.C. Circuit has put an important political check on the agency by making its director accountable to the White House. It was a partial victory for constitutional principles. ...
The Dodd-Frank legislation placed virtually all of the CFPB’s executive power in a single director, appointed to a five-year term by the president and confirmed by the Senate. This was a novel structure for a regulatory agency. Historically, independent federal agencies have been managed by multi-member commissions, often with bipartisan representation. For example the Federal Communications Commission and the Securities and Exchange Commission follow that pattern.
Even more troubling, the CFPB’s director was shielded from normal executive-branch checks and balances. The law specified that he could not be fired, not even by the president, and could be removed only for cause, defined in the statute as “inefficiency, neglect of duty, or malfeasance in office.” Advocates of the statute, including now-Sen. Elizabeth Warren (D., Mass.), wanted the bureau and its director to be immune from political oversight—by Congress or even by the president.
On Tuesday a panel of the U.S. Court of Appeals for the D.C. Circuit held that this structure is unconstitutional. “Other than the President, the Director of the CFPB is the single most powerful official in the entire United States Government, at least when measured in terms of unilateral power,” wrote Judge Brett Kavanaugh for the 2-1 majority. “That is not an overstatement.”
He added that this agency, led by a single director who cannot be fired, is “the first of its kind and a historical anomaly.” As such, the CFPB “lacks the critical internal check on arbitrary decision-making, and poses a far greater threat to individual liberty.” Judge Kavanaugh, joined by Judge A. Raymond Randolph, declared that the power vested in the agency’s director violated the Constitution’s Separation of Powers Doctrine.
In an editorial, the Journal itself comments that:
Some of us hoped the court would find the entire CFPB unconstitutional, but the ruling highlights again what a rush job Dodd-Frank was. Then professor and now Senator Elizabeth Warren proposed the consumer agency as a multi-member commission. So did the White House. But late in the game the bureau’s director became an unconstitutional authority unto himself. Ms. Warren sniffed in reaction to the ruling that it is merely a “technical tweak” that would be overturned on appeal, which shows how much contempt for the Constitution progressive elites now have.
If Congress won’t kill the CFPB, then it should at least make it conform to the normal constraints on independent federal agencies. And if Donald Trump wins, he should fire Mr. Cordray immediately.
Of course, the Democrats hope to appeal to the en banc DC Circuit, which is now dominated by Democrat appointees, who presumably are more inclined than their GOP counterparts to put Liz Warren's personal policy preferences ahead of the Constitution. But, at least for the moment, the rule of law prevailed.
In the post-Hobby Lobby environment, in which at least closely held corporations can assert free exercise rights, the question of when laws are of general applicability--and thus can be applied to believers without violating their free exercise rights under Employment Division v. Smith--has become critical for corporate counsel as well as constitutional lawyers. A new paper co-authored by leading religious freedom expert Douglas Haycock sheds light on the problem:
Twenty-six years after Employment Division v. Smith, the lower courts remain divided about its meaning. What does it mean for a law to be “generally applicable”? The Ninth Circuit recently upheld a regulation on facts as extreme as those in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993). But other courts have held that a law is not generally applicable if it allows even one secular exception that undermines the state’s asserted interests in regulating religion. Close analysis of Smith and Lukumi reveals that the one-secular-exception interpretation is correct. The Court’s discussions of the “object” of a law, of religious “gerrymanders,” and of discrimination “because of” religion, appear only with respect to neutrality; none of these concepts are even mentioned with respect to general applicability. The Court’s reaffirmance of the unemployment-benefits cases show that even very narrow exceptions make a law less than generally applicable. Sound policy reasons support this more literal understanding of general applicability. Exempting secular but not religious activities that undermine alleged government interests deprives religious minorities of vicarious political protection and demonstrates a forbidden value judgment: the exempted secular activities are more valuable, more deserving of legal protection, than the unexempted exercise of religion. This understanding of general applicability implements, in the face of regulatory complexity, a rule prohibiting discrimination against the free exercise of religion.
Keith Paul Bishop reports on yet another attack on Citizens United by the California Democrat assembly caucus:
Earlier this month, Senators Benjamin Allen and Mark Leno decided to take another run at putting an advisory vote on the ballot. They gutted SB 254, a bill amending the Streets and Highways Code, and inserted legislation calling a special statewide election to be consolidated with the November 8, 2016 general election. At this special election, the voters will be asked to vote on the following “advisory” question:Shall the Congress of the United States propose, and the California Legislature ratify, an amendment or amendments to the United States Constitution to overturn Citizens United v. Federal Election Commission (2010) 558 U.S. 310, and other applicable judicial precedents, to allow the full regulation or limitation of campaign contributions and spending, to ensure that all citizens, regardless of wealth, may express their views to one another, and to make clear that the rights protected by the United States Constitution are the rights of natural persons only?
First, it is a little puzzling that the Democrats are so opposed to corporate political campaign contributions since corporations are increasingly shifting to supporting the progressive left on social issues.
Second, corporations have a lot more constitutional rights than just the ones protected by Citizens United:
Just out of curiosity, which of those rights do the Democrats think corporations should not be allowed to exercise? And how do the Democrats intend to protect the rights go shareholders and stakeholders that would be adversely affected if corporations could not exercise those rights?
George Will points out a glaring problem with Merrick Garland's Supreme Court nomination, namely Garland's excessive affection for the lamentable Chevron deference doctrine:
“Chevron deference” ... actually is germane to Garland. He is the most important member (chief judge) of the nation’s second-most important court, the U.S. Court of Appeals for the District of Columbia Circuit, the importance of which derives primarily from its caseload of regulatory challenges. There Garland has practiced what too many conservatives have preached — “deference” in the name of “judicial restraint” toward Congress, and toward the executive branch and its appendages in administering congressional enactments. Named for a 1984 case, Chevron deference unleashes the regulatory state by saying that agencies charged with administering statutes are entitled to deference when they interpret supposedly ambiguous statutory language. ...
Bloomberg Law likewise thinks that Garland's appointment would lead to more judicial deference to agencies:
President Barack Obama's nomination of Merrick B. Garland to the U.S. Supreme Court could spell good news for the Securities and Exchange Commission, given the federal appeals court judge's long history of deferring to administrative agencies.
Why's that a bad thing? Let's go to Senator Mike Lee:
Over the course of the twentieth century, and accelerating in the twenty-first, Congress has handed too many of its constitutional responsibilities to the Executive Branch, creating a “headless fourth branch” of the federal government, untethered from any clear lines of accountability connecting policy, policymakers, and the people.
This upending of our constitutional order has led not only to bad policy, but to deep public distrust in our governing institutions.
Although Congress bears primary responsibility for this toxic state of affairs, the other two branches share in the blame.
In particular, the Supreme Court’s doctrine of “Chevron deference” has helped to midwife this shadowy fourth branch, by requiring Courts, under certain circumstances, to surrender their Article III constitutional power of judicial review to executive agencies.
Chevron deference is hardly the only problem with the administrative state, nor is it the biggest. But it may be the one with the clearest and most obvious fix.
Lee supports legislation (as described in this briefing paper) that would require courts "hearing challenges to agency actions to review 'de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions and rules.'" So do I. And that's a reason for opposing Merrick Garland's nomination.
Jonathan Adler opines:
In anticipation of a Supreme Court nomination, the progressive Alliance for Justice is circulating a letter signed by more than 350 law professors arguing that the Senate has a “constitutional duty” to provide a hearing and vote on a nominee to the Supreme Court. While there are reasonable policy and political arguments that the Senate should consider a nominee by President Obama, the claim that the Senate has a constitutional “obligation” is quite weak. ...
I'm always dubious of these mass letters (even the ones I sign), since I suspect most of the signatories aren't really thinking the issue through but rather are just lending their academic credentials to a political cause they support. In any case, Prof. Adler slams the argument:
Whereas the AFJ’s law professors argue the Senate’s “obligation” is “clear,” legal scholars to have seriously considered this question have reached the opposite conclusion. In a post at The Originalism Blog, Professor Michael Ramsey readily dismantles the AFJ letter’s arguments. The appointments clause of the Constitution gives the president the power to nominate judges, but it also gives the Senate the power to provide “advice and consent” and places no limits on how the Senate discharges this power. The Senate may withhold its consent by voting down a nominee, but it may also withhold its consent by refusing to act, or otherwise failing to confirm a nominee. (Ramsey has more on supposed “originalist” arguments in support of a supposed Senate “duty” here.) At NRO’s Bench Memos, Ed Whelan reaches similar conclusions.
Although many prominent liberal law professors signed the AFJ’s letter, serious liberal scholars who have studied the history of judicial confirmation fights are conspicuously absent from the list of signatories. Given the weakness of the constitutional argument, this should not surprise. It’s hard to argue with a straight face that the Senate has a constitutional obligation to, say, hold a confirmation hearing on a Supreme Court nominee when no such public hearings were held for most of the nation’s history. ...
While I believe the long-term interests of the court and the country are best served by a relatively quick and deferential confirmation process every time the president nominates a qualified individual to fill an open court seat, this has not been the norm for quite some time. Indeed, as Ben Wittes and Miguel Estrada ruefully explained, there are no longer any rules governing the confirmation process. Rather,
Whatever elevated rhetoric anyone invokes to suit his or her convenience, the fact is that our real judicial nominations system is now one of raw power and nothing else.
Our friend Rick Garnett has an op-ed on CNBC about the nomination of Merrick Garland to the Supreme Court:
Some have suggested that the Constitution somehow requires or legally obligates the Senate to hold hearings and vote on Judge Garland's nomination. It clearly does not. The president has the power and the right, for his entire presidency, to nominate candidates to fill judicial vacancies; the Senate has the power, in turn, to delay or decline hearings and votes. The federal government created by our Constitution has three different branches, which check and balance each other in various ways. When the branches disagree, more often than not the disagreements are worked out politically, rather than legally. ...
The court has often operated with fewer than nine members many times in our history and, more than a few times, presidents and the Congress have jockeyed, struggled, and contested over vacancies and confirmations. It is understandable that many regret the politicization of the court's membership but it is also understandable, given the role that the court now plays in our democracy, that many people care, a lot, about the court. There can be little doubt that, if the president were a Republican and the Senate were controlled by Democrats, things would proceed similarly to the way they are now.
I agree. But I can't help but observe how many of the people who hate Citizens United now think Apple has rights. https://t.co/jVxwhjy8X7— Stephen Bainbridge (@ProfBainbridge) March 17, 2016
Cory @doctorow hates Citizens United. But suddenly he thinks Apple CORPORATION has rights that must be defended at all costs. Consistent?— Stephen Bainbridge (@ProfBainbridge) March 17, 2016
Well said. https://t.co/aOzDqYWze4— Stephen Bainbridge (@ProfBainbridge) March 17, 2016
Zing. https://t.co/B8sXHfrNjl— Stephen Bainbridge (@ProfBainbridge) March 17, 2016
Last year Delaware Chief Justice posted an article on the Hobby Lobby case:
This article connects the Supreme Court’s decision in Burwell v. Hobby Lobby to the history of “corporate paternalism.” It details the history of employer efforts to restrict the freedom of employees, and legislative attempts to ensure worker freedom. It also highlights the role of employment in healthcare coverage, and situates the Affordable Care Act’s “minimum essential guarantees” in a historical and global context. The article also discusses how Hobby Lobby combines with the Supreme Court’s earlier decisions in Citizens United and National Federation of Independent Business v. Sebelius to constrain the government’s ability to extend the social safety net, and shows how those decisions put pressure on corporate law itself.
A Job Is Not a Hobby: The Judicial Revival of Corporate Paternalism and Its Problematic Implications (January 26, 2015). Journal of Corporation Law, 2015, Forthcoming; U of Penn, Inst for Law & Econ Research Paper No. 15-2. Available at SSRN: http://ssrn.com/abstract=2555816
Harry Hutchinson recently posted a reply, which argues that:
In his recent article, A Job is Not a Hobby: The Judicial Revival of Corporate Paternalism and its Problematic Implications, Judge Leo Strine endeavors to fashion an unbreakable link between the Supreme Court’s recent decision in Burwell v. Hobby Lobby in combination with the Court’s recent corporate law jurisprudence surfacing in Citizens United and the reappearance of “corporate paternalism.” This move ostensibly threaten employee autonomy and positive rights. Advancing a profuse panegyric on the New Deal and later Fair Deal reforms, Strine stoutly defends the quest for “social progress.” He is particularly animated to counter the efforts of employers, such as the respective corporations that participated in the Hobby Lobby decision to pursue a religious accommodation from generally applicable law. Properly appreciated his article raises the vexed question whether corporations — particularly religious corporations — have rights either directly or derivatively when such rights delimit the nation’s social safety net that progressives and liberals have constructed and sustained through novel interpretation of the law. This article also questions the Supreme Court’s understanding of corporate law, which on Strine’s account threatens the return of “wage slavery.”
This essay responds to Strine’s observations and analysis in several ways. After summarizing his argument, this essay ascertains whether Judge Strine’s largely utilitarian calculus eradicates debate or rather sparks it. This inspection is complemented by reconsidering Progressive Era currents, New Deal labor law and the ongoing plight of marginalized individuals and groups despite increasing levels of government intrusion in society grounded in the presumed benefits of reform initiatives. In addition, this response evaluates the possibility that the United States can be defined plausibly as a truly secular society and the implications arising from an answer to this question for purposes of sorting out whether religious exemptions ought to be available for for-profit corporations either within the meaning of the Religious Freedom Restoration Act or within the parameters of the First Amendment. Lastly, I consider whether Supreme Court jurisprudence has reinstituted “corporate paternalism” that somehow transforms corporate law or, alternatively strengthens it. Of particular interest is Strine’s claim that granting corporations statutory or constitutional rights is incompatible with the notion of corporate “separateness,” a claim that may be difficult to square with a robust conception of the theory of the firm grounded in contractarianism and law and economics scholarship. Taken as a whole, Judge Strine’s approach is refracted through a prism supplied by political theorists, constitutional scholars and corporate law scholars. Such an inspection exposes the doubtful provenance of his claims.
Hobby Lobby, Corporate Law, and Unsustainable Liberalism: A Reply to Judge Strine (February 16, 2016). Harvard Journal of Law and Public Policy, Vol. 39, 2016, Forthcoming; George Mason Legal Studies Research Paper No. LS 16-06. Available at SSRN: http://ssrn.com/abstract=2733349
The Supreme Court has granted cert in Salman v. United States, posing the following question for argument:
Whether the personal benefit to the insider that is necessary to establish insider trading under Dirks v. SEC requires proof of “an exchange that is objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable nature,” as the Second Circuit held in United States v. Newman, or whether it is enough that the insider and the tippee shared a close family relationship, as the Ninth Circuit held in this case.
The WSJ reports:
In the New York case, U.S. v. Newman, an appeals panel said prosecutors had to prove the insider disclosed the information for a personal benefit that included something valuable being exchanged. The decision upended multiple convictions and top prosecutors complained that the ruling could make it legal for traders to obtain and use confidential information from friends.
Mr. Salman, citing Newman, argued that evidence of a family relationship between the tipper and the tip recipient wasn’t enough to demonstrate that the insider received a personal benefit.
The San Francisco-based Ninth U.S. Circuit Court of Appeals rejected that argument in a ruling last July. The Supreme Court will review the decision and could hear oral arguments as soon as April. Mr. Salman has been serving his prison sentence since August 2014.
Salman and Newman have been frequent topics. Here's some posts that may be of interest: