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The petition of the day is:DeCoster v. United States 16-877
Issues: (1) Whether the due process clause prohibits the imposition of a term of imprisonment as punishment for a supervisory liability offense, such as the one described in United States v. Park; and (2) whether Park and its precursor, United States v. Dotterweich, should be overruled.
Information Technology and the U.S. Workforce: Where Are We and Where Do We Go from Here? (2017): “Recent years have yielded significant advances in computing and communication technologies, with profound impacts on society. Technology is transforming the way we work, play, and interact with others. From these technological capabilities, new industries, organizational forms, and business models are emerging. Technological advances can create enormous economic and other benefits, but can also lead to significant changes for workers. IT and automation can change the way work is conducted, by augmenting or replacing workers in specific tasks. This can shift the demand for some types of human labor, eliminating some jobs and creating new ones. Information Technology and the U.S. Workforce explores the interactions between technological, economic, and societal trends and identifies possible near-term developments for work. This report emphasizes the need to understand and track these trends and develop strategies to inform, prepare for, and respond to changes in the labor market. It offers evaluations of what is known, notes open questions to be addressed, and identifies promising research pathways moving forward.”
Gallup – “Last summer, Brexit shocked the world. Few global experts saw it coming. In their defense, most economic indicators didn’t point to a political upheaval. Gross domestic product in the U.K. was growing at about 2%, and unemployment had dropped to 4.9%. From a data perspective, things seemed OK. Another metric, however, showed something different happening in the U.K. — “happiness.” In the two years leading up to Brexit, Gallup found that the percentage of people who were “happy” (or “thriving“) was in dramatic decline. In fact, the 15-percentage-point decline in the percentage of people rating their lives positively enough to be considered thriving was so dramatic that it remains among the largest two-year drops in Gallup’s history of global tracking. Today, the U.N. launches its next iteration of its “World Happiness Report.” Popularized by previous reports, these happiness rankings have become world famous. Many people can quickly identify Denmark, Norway and Switzerland as among the happiest countries. What people don’t know is how happiness is measured and why it’s so important to track…” Scroll down to see the listing of World Happiness Rankings – no the US is not even in the top 10!
We often refer to the Supreme Court as a “hot bench”: Questions fly fast and furious from all the justices, often allowing the lawyers to get out only a few sentences (if that many) before fielding the next question. However, the bench that heard today’s oral argument in Howell v. Howell, a dispute over military retirement pay in a divorce, was more lukewarm than hot. Advocates for both sides had plenty of extended opportunities to speak – so much so that Adam Unikowsky, representing petitioner John Howell, only used a little more than half of his allotted 30 minutes during the main part of his argument. The relatively sparse questioning from the justices was no doubt welcomed by the advocates, but it made it much harder to predict how the justices might ultimately resolve the case.
The question before the court hinges on the interpretation of the Uniformed Services Former Spouses’ Protection Act, a 1982 federal law that authorizes state courts to divide up military retirement pay in a divorce. The law allows state courts to treat “disposable retired pay” as either the service member’s property or the property of both the service member and the member’s spouse, depending on state law. The term “disposable retired pay” is in turn defined as the service member’s retired pay, minus any portion of that pay waived in favor of disability benefits.
The dispute in this case arose in 2005, 14 years after John and Sandra Howell divorced. The former spouses agreed that Sandra would receive half of John’s military retirement pay when it began the following year. But John later opted to waive part of his retirement pay to receive disability benefits (which, unlike retirement pay, are not taxable) instead. That decision meant that Sandra received $125 less per month than she had previously received, while John actually got more money — both the additional money that would otherwise have gone to Sandra and the savings from his disability benefits being tax-free. Sandra went to court, asking to have her monthly payments restored to the amount that she had received before John’s waiver and to be reimbursed for the amount she believed that she was owed for the lower payments in the past. The Arizona Supreme Court agreed with her, and the Supreme Court agreed last fall to weigh in.
At today’s oral argument, Unikowsky argued that the USFSPA bars state courts from ordering him to pay Sandra half of the portion of his retirement pay that he now receives as disability pay. This position is not only consistent with the text of the USFSPA, he contended, but also makes sense in light of the purpose of the law. Congress would have wanted veterans to keep their disability pay, he emphasized, because they are the ones who are disabled, and because the disability pay is intended to substitute for money that the veteran is no longer able to earn. That goal of protecting a veteran’s disability, he continued, is not related to whether the veteran becomes entitled to disability pay before or after the divorce.
But not all of the justices agreed with Unikowsky – most notably, Justices Sonia Sotomayor and Ruth Bader Ginsburg. Both justices seemed to believe that, despite Unikowsky’s assurances to the contrary, the timing of the disability benefits does matter. First, Sotomayor posited, the divorce agreement gave Sandra a property right in half of John’s retirement pay; when he opted to waive some of that pay in favor of disability benefits, she contended, he was effectively impinging on Sandra’s property right. Second, she suggested, when a couple gets a divorce after one spouse has opted to receive disability benefits, they have a full picture of their finances: They know that they can’t divide the disability benefits, but courts can compensate for the disability benefits in other ways – for example, by increasing child support or alimony. Here, Sotomayor complained, Sandra planned her life around receiving half of John’s full retirement pay, but he unilaterally decided to waive some of the pay. In cases like these, Ginsburg maintained, courts should be able to re-open divorce agreements to account for the changed circumstances.
Arguing on behalf of Sandra Howell, lawyer Charles Wirken told the court that a ruling for John would in fact be at odds with the purpose of the USFSPA. Congress could not have intended, he argued, to allow service members to agree, as part of their divorce, to divide up retirement pay but then apply for disability benefits and waive part of that pay, leaving their former spouses in the cold. But Chief Justice John Roberts was dubious, telling Wirken that the purpose of a particular law isn’t always going to resolve all of the questions about its interpretation. And that’s particularly true here, he noted, because Congress also wanted to preserve disability benefits for veterans.
Roberts became even more skeptical when Ilana Eisenstein, the assistant to the U.S. solicitor general who argued on behalf of the federal government in support of Sandra, told the justices that there are “many economically equivalent ways” that a court can effectively reach the same result without expressly dividing up a veteran’s disability pay. Roberts retorted, spiritedly, that Eisenstein was essentially saying that there is “no real substance to this law.” All a court needs to do, he stressed, is to “find some charade to get to the same result.” If you have a law that bars courts from dividing up disability pay, but allows them to award money from another source to compensate for the inability to divide disability pay, he concluded, “that’s the sort of thing that gives law a bad name.”
Although Roberts, Ginsburg and Sotomayor all seemed to telegraph their views on the case, the other justices were harder to read. During his rebuttal, Unikowsky assured the justices that waivers of military retirement pay in favor of disability benefits are not rare, but in fact happen all of the time. So no matter how the justices ultimately rule, their decision will likely have a significant impact on divorcing military couples.
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Gordon, Gwendolyn, Environmental Personhood (March 7, 2017). Available at SSRN: https://ssrn.com/abstract=2935007
“Environmental personhood is the nascent notion of designating parts of nature as legal persons entitled to independent regard and consideration. Several jurisdictions, including areas in the United States, have developed versions of legal regimes granting rights directly to nature in and for itself. Protecting the environment in this manner has gained momentum in the current moment as a result of and in reaction to the seemingly quotidian status of corporate personhood in protecting corporate rights. But environmental personhood need not be seen only as a foil for corporate power. Because corporate personhood is an example of how we came to understand a non-human entity as a bearer of rights, we can use lessons from the contingent development of this doctrine to inform the development of environmental personhood. As evidenced by the history of corporate personhood, there is no entirely unqualified right that applies to all persons across all circumstances; the actual way a “right” plays out is always dependent upon social, historical, and political context. The ways in which the acknowledgement of the rights of nature have played out in the jurisdictions in which it is present also evidence this statement. Law and its social context are of course mutually constitutive; it is possible today to imagine that new views on environmental precariousness and new legal conceptions of the standing of nature might combine to make the doctrine of environmental personhood a robustly protective one.”
Unger, Anna and Wallace, Stuart and Ziegler, Tamas Dezso, The Role of Human Rights in EU-US Bilateral Relations (August 31, 2016). Available at SSRN: https://ssrn.com/abstract=2935031
“This report aims to analyse the different dimensions and levels of EU-US relations, to survey the instruments the EU uses in this relation and to provide some recommendations for future EU actions. It provides an overview of the main similarities and differences between the EU and the US regarding human rights, and measures the influence of the EU on the state and practice of human rights in the United States. Likewise, this report analyses how the United States may affect human rights in the EU and its Member States, notably in light of US policies that are strongly criticized by the EU from a human rights-based perspective.”
Stephen Castle, The New York Times: “The British government said on Monday that it intended to formally notify the European Union on March 29 of its intention to leave the bloc, putting the country on track to complete a withdrawal by early 2019. David Davis, the cabinet minister responsible for negotiating the exit, said that Britain would send notice next week to start a two-year negotiated exit, commonly referred to as “Brexit,” under Article 50 of the European Union’s treaty. Shortly after the announcement, Donald Tusk, the president of the European Council, said in a post on Twitter that he would present draft guidelines for the British withdrawal to the other 27 member states within 48 hours of Britain formally giving its notice. Prime Minister Theresa May, who had promised to begin the process of negotiating a withdrawal by the end of March, is apparently hoping that the end of the negotiations will conclude before the next elections to the European Parliament in summer 2019 and the next general election in Britain, expected to take place in 2020. After Britons voted in a referendum last year to leave the European Union, the government was taken to court in a battle about whether Mrs. May could invoke Article 50 without the approval of Parliament..”
“The SCE Credit Access Survey queries respondents every four months about their experiences and expectations of applying for and obtaining credit. February results show an increase in the unmet credit demand of U.S. consumers compared with October levels. The proportion of consumers feeling “discouraged” when seeking credit rose. Both application rates and rejection rates declined. The survey’s expectations component also painted a subdued picture. The proportion of respondents likely to apply for at least one type of credit over the next twelve months decreased. Consumers were also generally more pessimistic of future approval rates. Two “financial fragility” series introduced publicly with this release capture respondents’ outlook for incurring and meeting unexpected expenses in the next month. The average probability of needing an extra $2,000 remained steady at 32.5 percent, while the average probability for coming up with that sum edged up to 67.2 percent, from 65.9 percent in October.”
“The Federal Reserve Board’s website has a new design and additional features to improve the experience of visitors seeking information about the Federal Reserve and its actions. Visitors will now find the site easier to view on mobile devices, and restructured navigation menus make information easier to find. The News & Events section now includes a comprehensive events and publications calendar and filters to search press releases, speeches, and testimony. The About the Fed section has been restructured to include updated information from the Board’s Purposes & Functions publication. The Board’s website is its primary channel of communication and is complemented by Board accounts on Facebook, Twitter, LinkedIn, and YouTube.”
Today the Senate Judiciary Committee held the first day of its hearing on the nomination of Judge Neil Gorsuch to the Supreme Court. Early coverage of today’s proceedings, which featured opening statements by senators and the nominee, comes from Matt Flegenheimer, Carl Hulse, Charlie Savage and Adam Liptak of The New York Times, Lawrence Hurley and Andrew Chung of Reuters, Laura Litvan and Greg Stohr of Bloomberg, Ed O’Keefe, Robert Barnes and Sean Sullivan of The Washington Post, Erica Werner and Mark Sherman of the Associated Press and David Savage of the Los Angeles Times. Early commentary comes from Noah Feldman of Bloomberg View.
Tomorrow, questioning by senators will begin. Ilya Shapiro for The Federalist and Steven Mazie for The Economist’s Democracy in America blog suggest questions they believe senators should ask the nominee. For Cato at Liberty, Shapiro also lays out what to look for during the hearing.
Other coverage of Gorsuch’s nomination comes from Arnie Seipel and Nina Totenberg of NPR and from Bill Mears of Fox News, who reviews Neil Gorsuch’s judicial record, his extensive preparation, and pre-hearing attempts by Democrats to oppose the nomination.
Additional commentary on Gorsuch’s nomination comes from Elizabeth Wydra for The Hill, David Gans for the Waco Tribune-Herald (also New Republic), and Akhil Reed Amar for The New York Times, Mark Gitenstein for The Washington Post, Kenneth Jost for his eponymous blog, Leah Litman at Take Care, who also writes a second piece with Amir Ali for Take Care, Ryan Black and Ryan Owens for The Washington Post, David Brock from Politico Magazine, Sen. Elizabeth Warren (D-Mass.) for the Boston Globe, Lee Saunders for The Hill, Raul Reyes for NBC News, Judith Schaeffer for The Huffington Post, Joan McCarter for Daily Kos, Rebecca Leber for Mother Jones and Dahlia Lithwick for Slate.
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Have you ever been to Marshall, Texas? Assuming that most of my readers did not, as I did, grow up in East Texas, it is a safe bet that few of you have visited that relaxed municipality at the intersection of I-20 (the interstate highway running from Dallas to Atlanta) and Texas Highway 59 (a local highway that runs from Houston northeast to Texarkana). It might help you locate it if I told you it is about 60 miles east of Tyler, the home of football icon Earl Campbell. Of one thing, though, I can be certain: The readers of this entry who engage in patent litigation will be familiar with Marshall. More than 40 percent of the nation’s patent cases are filed there; indeed, over the last three years, about one-quarter of all patent cases nationwide have been assigned to one particular judge in the federal court there (Judge Rodney Gilstrap). In a nutshell, the question in TC Heartland v. Kraft Foods is whether the justices should do something about that. Should they step in to reverse the remarkable concentration of patent litigation in that one court?
In a system that allows plaintiffs to select the courts in which they file lawsuits, there must be something about the forum in the Eastern District of Texas attractive to patentholders suing for alleged patent infringement, because it is just about impossible to imagine a venue system that would force patentholders to pick a court so remote from the centers of innovation and finance that might seem like more logical fora. So it should come as no surprise that a lot of money is at stake here – evidenced by the 30-odd amicus briefs filed on one side or the other of the matter.
Despite the voluminous briefing, the case in fact is relatively straightforward if you think of it as proceeding at two levels. The first level is an uncomplicated question of statutory interpretation involving two frequently amended and interlocking statutory texts that govern venue in patent cases, Sections 1391 and 1400 of the federal judicial code (Title 28 of the United States Code). Section 1400 states that a “civil action for patent infringement may be brought in the judicial district where the defendant resides”; the last time the Supreme Court examined the statute (its 1957 decision in Fourco Glass v Transmirra Products), it concluded that this meant “the state of incorporation only.” Thus, under Section 1400 as read in Fourco, patent suits against a corporation would have to be brought in the state in which the defendant is incorporated (usually, at least for large businesses, Delaware).
The general venue statute, Section 1391, by contrast, states: “For all venue purposes … [a corporation] shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court’s personal jurisdiction with respect to the civil action in question.” Because large businesses are likely to have sufficiently pervasive business activities to be subject to personal jurisdiction throughout the nation, that section makes venue generally appropriate in most districts. More or less ignoring the Supreme Court’s decision in Fourco, the U.S. Court of Appeals for the Federal Circuit has read Section 1391 to broaden Section 1400, producing the bizarre results summarized above.
This case stems from a lawsuit in which Kraft Foods alleged that TC Heartland had infringed Kraft’s patent for a liquid water enhancer. Kraft sued in Delaware, but Heartland sought to transfer the case to Indiana, its place of incorporation, arguing that Section 1400 does not authorize venue in Delaware. As a matter of statutory language, Heartland argues that the patent statute reflects the specialized realities of patent litigation. Because the Supreme Court already has interpreted the language, and because the relevant language of Section 1400 has not changed since the court interpreted it in 1957, Heartland urges that it makes no sense to treat trivial alterations in Section 1391 as upending the sensible result the court reached in 1957. Heartland also reads Section 1391 as supporting its argument that patent venue is only proper in a defendant’s place of incorporation. That section begins with the qualification that it “shall govern the venue of all civil actions” only “[e]xcept as otherwise provided by law”; Heartland reasons that the special patent rule in Section 1400 does exactly that – “otherwise provid[ing]” for patent cases.
At bottom, though, the buzz about this case is not about the statutory language. The case is significant because it throws a spotlight on the bizarre and accelerating concentration of patent litigation in the Piney Woods of East Texas. That is the main focus of the amicus briefs, which battle over every empirical detail that is available to shed light on the quality of the work done on the patent docket of the Eastern District of Texas: whether it rules for defendants more often than other courts, whether it dismisses complaints less often than other courts, whether the Federal Circuit upholds its decisions as often as it does those of other courts. In the end, though, my sense is that most of the data is relatively ambiguous. About the only thing that seems to come through clearly is that the Texas court moves cases along swiftly, something the justices may not find troubling.
If we put the atmospherics of the prior Supreme Court decision to the side, Kraft has a strong statutory argument. Section 1400’s reference to the district “where the defendant resides” seems to tie naturally into the determination in Section 1391 of where corporations reside “for all venue purposes.” Kraft also argues that the provision of Section 1391 treating corporations as ubiquitously resident reflects a major effort, led by the American Law Institute, to recast the venue rules. The enactment of that project by Congress may be enough to persuade the justices to set aside the court’s early reading of Section 1400 in Fourco. They also surely will be aware that Congress has considered many times stepping in to solve this particular venue problem but has never taken action despite adopting the most important revisions to the Patent Act of my lifetime just a few years ago.
In the end, I think the key question is whether long-simmering complaints about the concentration of patent venue in Texas will be enough to motivate the justices to intervene. The statutory language and their prior interpretation of it is are malleable enough to support a rejection of the status quo. Still, their level of outrage may have to be pretty high to persuade them to step in where Congress has declined to tread.
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief by Ericsson Inc., Allergan, Inc., and Traxxas L.P. in support of the respondent in this case. The author of this post, however, is not affiliated with the firm.]
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Compared to the other previews I’ve written for the March argument session, Advocate Health Care Network v. Stapleton is a breath of fresh air. The cases I previewed for the first week (Impression Products v. Lexmark and Microsoft v. Baker) presented open-ended problems lacking any textual grounding in statute or rule to guide or constrain the analysis of the justices. Advocate Health Care Network, by contrast, brings the justices as straightforward and direct a question of textual explication as they’re likely to face this term.
The case involves the application of ERISA to church-affiliated pension plans. ERISA, as most who will have read this far already know, is the Employee Retirement Income Security Act of 1974. Responding to the rampant self-dealing and mismanagement of employee pension plans that was endemic in the 1960s, the statute imposes a variety of regulatory rules on the plans to which it applies and also subjects those that manage them to a federal standard of fiduciary duty. Compliance with those rules, of course, is neither costless nor convenient. It should be no surprise, then, that churches seeking to avoid that regulatory burden were able to obtain an exemption from ERISA for their pension plans.
This case is about the breadth of that exemption. Specifically, the question is whether the exemption applies not only to plans that churches operate for the benefit of their own employees, but also to plans operated by organizations that are affiliated with churches although not themselves churches. If that sounds obscure, think hospitals: Organizations affiliated with churches operate a large share of the hospitals in this country. For example, Advocate Health Care Network (the defendant in the lead case) is a ministry of the Lutheran and Church of Christ denominations that operates 12 hospitals in Illinois. Saint Peter’s Healthcare System (the defendant in the second of the three cases before the court) is a Catholic ministry that operates a hospital in New Jersey. The third defendant, Dignity Health, operates several hospitals that Catholic nuns sponsor in California. For more than 30 years, the three federal agencies that administer ERISA (the Internal Revenue Service, the Department of Labor and the Pension Benefit Guaranty Corporation) have treated the pension plans of those hospitals as exempt from ERISA. The question before the justices is whether the text of ERISA will bear that reading. In each of the three cases, employees of the health-care providers filed suit alleging that the pension plans provided by their employers do not qualify for the exemption.
The exemption from ERISA depends on a definition of “church plan” originally set out in ERISA as exempting any plan “established and maintained for its employees by a church.” The exemption was broadened by the 1980 amendments to ERISA at issue in this case, which state that a “plan established and maintained for its employees … by a church … includes a plan maintained by an organization … controlled by or associated with a church.” Because the revision quotes the exemption directly (“established and maintained … by a church”), and provides that the exemption includes “a plan maintained by an organization [affiliated] with a church,” it seems to say that affiliate plans are exempted without regard to their establishment. That, in a nutshell, is the argument of the health-care providers, supported by the U.S. solicitor general.
The obvious problem with that argument is the odd line it draws between plans that are exempt and those that are not exempt. If we assume that plans for the employees of the churches themselves are at the core of the exemption, why would Congress insist that pure-church plans be both established and maintained by religious organizations while church-affiliated plans need only be maintained by religious organizations? That is the central point of the employees, who suggest that the 1980 amendments should be viewed as limited to relaxing the requirement that they address by providing that church-affiliated plans, like church plans, must be “established” by the “church” itself, but that they will retain their exempt status whether they are “maintained” by the church itself or by the affiliate.
To my mind, the policy arguments are largely a wash. On the one hand, because ERISA is expensive, applying it to hospitals will raise the costs of health care, and who could suppose Congress is in favor of increasing the costs of health care? On the other hand, if we accept that ERISA is on balance a good thing for employee-retirement policy (and it’s hardly appropriate to read ERISA on the assumption that it is a bad thing), then we should doubt Congress’ intent to leave such a large sector of the economy unprotected.
At the end of the day, I think the justices are likely to find their answers almost entirely in the text of ERISA Congress has provided, leaving it to Congress to redraw any lines that seem misplaced. That inquiry into the meaning of the statute, I expect, will dominate next week’s argument.
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