25 February 2015

Law in Plain English: North Carolina Board of Dental Examiners v. FTC

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogNorth Carolina Board of Dental Examiners v. FTC

Argument: Oct 14 2014 (Aud.)

Background: The North Carolina Board of Dental Examiners is a state agency comprised primarily of licensed dentists, elected by dentists within the state, and funded by fees paid by dentists. The Board opened an investigation into teeth­ whitening services performed by non-dentists, and ultimately issued at least 47 cease-and-desist letters to 29 non-dentist teeth-whitening providers. In response, the Federal Trade Commission (FTC) filed a complaint against the Board, alleging a violation of the FTC Act, 15 U.S.C. § 45, by engaging in unfair competition. The Fourth Circuit ruled in favor of the FTC, concluding that when a state agency appears to have the attributes of a private actor and is taking actions to benefit its own membership, it should be treated as a private entity. The Board was a private entity because it was operated by market participants who were elected by other market participants and was not actively supervised by the state. Allowing the antitrust laws to apply to the unsupervised decisions of self-interested regulators acts as a check to prevent conduct that is not in the public interest; absent antitrust to police their actions, unsupervised self-interested boards would be subject to neither political nor market discipline to serve consumers' best interests.

Issue: The question before the Court was whether, for purposes of the state-action exemption from federal antitrust law, an official state regulatory board created by state law may properly be treated as a “private” actor simply because, pursuant to state law, a majority of the board’s members are also market participants who are elected to their official positions by other market participants.

Holding: In a 6-3 decision, the Supreme Court ruled that because a controlling number of the Board’s decisionmakers are active market participants in the occupation the Board regulates, the Board can invoke state-action antitrust immunity only if it was subject to active supervision by the State, and here that requirement is not met. 

Law in Plain English: Yates v. United States

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogYates v. United States

Argument: Nov 5 2014 (Aud.) 

Background: While fishing in the Gulf of Mexico, the Miss Katie was boarded by a fisheries officer, who measured several red grouper fish and found them to be less than 20 inches (the minimum size limit for red grouper at the time). The officer placed the undersized fish in the Miss Katie's fish box, issued the captain (Yates) a citation, and instructed Yates not to disturb the fish because they would be seized upon return to port. Nonetheless, Yates had his crew throw the undersized fish overboard and replaced them with other undersized (but closer to 20") fish. Yates was charged and convicted of 1) the destruction of property to prevent seizure; and 2) the destruction of a "tangible object with the intent to impede, obstruct, or influence" the government's investigation into harvesting undersized grouper. This second charge was based upon the "anti-shredding" provision of Sarbanes-Oxley, passed in the wake of the Enron scandal. The Eleventh Circuit affirmed his conviction.

Issue: The question before the Court is whether Mr. Yates was deprived of fair notice that destruction of fish would fall within the purview of 18 U.S.C. § 1519, which makes it a crime for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the intent to impede or obstruct an investigation, where the term “tangible object” is ambiguous and undefined in the statute, and unlike the nouns accompanying “tangible object” in section 1519, possesses no record-keeping, documentary, or informational content or purpose.

Holding: The Supreme Court ruled that a “tangible object” within §1519’s compass is one used to record or preserve information. Because the grouper caught by Yates were not “tangible objects” under this meaning, his conviction would be reversed.

24 February 2015

Law in Plain English: Kansas v. Nebraska and Colorado

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogKansas v. Nebraska and Colorado

Argument: Oct 14 2014 (Aud.)

Bridge across the Republican River near Riverton, Nebraska
Background: In an original action, Kansas sought a remedy both for Nebraska’s breach in 2006 of the 1943 Republican River Compact and for what Kansas claimed is Nebraska’s likely continued breach of that Compact in the future. Kansas argued that Nebraska’s conduct also violated a prior decree of the Court approving an earlier settlement among the parties. Nebraska, in turn, both opposed Kansas’ claims and asserted a counterclaim seeking to correct what it claims is a mistake in the accounting procedures used under the terms of that earlier settlement agreement. A Special Master appointed by the Court recommended that the Court declare Nebraska to have breached the 1943 Compact by consuming a total of 70,869 acre-feet of water in excess of its Compact allocation in 2005 and 2006; that the Court enter judgment against Nebraska and in favor of Kansas in the amount of $5,500,000; that the Court otherwise deny Kansas’claims for relief; and that the Court order the accounting procedures used by the states reformed to correct a mistake.

Documents filed with the Special Master are available here.

Issue: The question before the Court is whether Nebraska violated a compact apportioning the waters of the Republican River between Kansas, Nebraska, and Colorado; if so, what relief is appropriate to remedy the violation.

Holding: The Supreme Court ruled that Nebraska “knowingly failed” to comply with its Settlement obligations, and disgorgement is an appropriate remedy for Nebraska’s breach.


23 February 2015

Re: All good things must come to an end

In an earlier post, I indicated that I would be wrapping up my "Plain English" Supreme Court summaries at the end of the current term. I had hoped that I would be able to actually finish off the term by writing summaries of every case between now and then. As my block of available time has decreased, I've fallen behind; I'm not entirely confident that I can meet that burden. So while I continue to write summaries, whether I can write them for every single case through June will be entirely dependent upon the availability of my free time to actually research and write them.

20 February 2015

Squeaky wheel gets the grease

The principal replied to my email this morning. The paved walking path was finally salted today and most of the ice is gone.



Email to Freetown Elementary School concerning ice on a frequently used path

Good morning Principal Cox,

My name is Michael Schearer and my daughter Chloe is a student at Freetown Elementary School. We live in the Sun Valley neighborhood behind the school. As such, we often walk home on the paved path that runs from the school to Leonard Drive. Most or all of this path appears to be on property of the school (or the county generally).

Yesterday afternoon, I noticed that most of the path is covered in a thick sheet of ice. In many places, the ice is covered by blowing snow so that you aren't even aware that the ice is there. While we were walking home, one student slipped on the ice and fell. Fortunately, he did not appear to be injured.

Many students who live in Sun Valley (and elsewhere) use this path to walk to and from school. It concerns me that yesterday, more than two days after the end of the most recent snowstorm, this path appears to have been untouched by anyone at the school or the county. The fact that at least one child has already slipped and fallen on the ice is evidence to me that the path is not safe.

I would appreciate if you could bring this to the attention of the appropriate personnel at the school or Anne Arundel County, so that this path can be properly cleared for the safety of all of the students that use it (and the parents, too). And not just now, but for future weather events, too.

I have attached a few pictures that I took yesterday that show the extent of the ice on the path. These images are all in the area of the playground, right next to the school.

Thank you very much for your prompt attention to this matter.

Michael Schearer




10 February 2015

DEFCON CFP submission: "The Law of Drones"

Here's the abstract for my DEFCON submission:

A decade ago, drones were mostly associated with terrorist strikes in the Middle East. Since then, the proliferation of drone technology has resulted in widespread deployment of unmanned aerial systems for law enforcement, commercial, and personal use.  The recent drone crash on the White House lawn has sparked a renewed interest in unmanned aerial systems by governments, commercial users, and hobbyists. Recent events have also put a spotlight onto the Federal Aviation Administration's renewed efforts regulate drones. This talk will review the history and development of laws, rules, and regulations regarding model aircraft, drones, and other unmanned aerial systems. Next, we will survey the legal landscape to understand current efforts by the FAA and other governmental bodies to restrict and regulate drones for personal users while expanding opportunities by governmental users. Finally, we will look at the way forward in an opportunity to evaluate the balance between the rights of drone users and the privacy expectations of citizens. If you're interested in learning more about model aircraft, drones, and other unmanned aerial systems, come check it out!

05 February 2015

Not in my backyard, Maryland edition

Heroin is certainly not unique to Maryland. But Baltimore is widely regarded as the "Heroin Capital" of the United States. Estimates from the federal government and the Baltimore Department of Health suggest that Baltimore is home to 48,000-60,000 addicts; or nearly a tenth of the city's population. And this epidemic has spilled into Baltimore's suburbs, too. Heroin's link to Baltimore also spawned a popular, but ultimately disturbing website that chronicles anecdotal evidence of heroin users in and around the city. When it comes to heroin, The Wire was not too far from the mark.

Maryland Governor Larry Hogan has highlighted the state's heroin epidemic several times since the election in November, and made it a priority in his state of the state address on Wednesday. Anne Arundel County Executive Steve Schuh has done the same.

The most effective treatment for heroin addiction is methadone. The staple of a heroin-addicted community is the methadone clinic. It should not be surprising, then, that fighting the heroin problem means putting these clinics in the communities where heroin is a problem.

Recent plans to open a methadone clinic on Hogs Neck Road in Pasadena in Anne Arundel County came to a screeching halt in the face of massive opposition from the community. Sadly, some went way too far in opposing the clinic by making death threats against the owner.

I suspect if you surveyed the people who oppose the clinic, many people would believe that the clinic's customers are from Baltimore City or somewhere else, and that the clinic is bringing drug addicts into their neighborhoods. But in reality, the addicts already live in those neighborhoods. The heroin problem will not go away because communities oppose methadone clinics in their neighborhoods. But the heroin addicts who live in those neighborhoods will have to go father to get treatment. Behind the facade, our otherwise-picturesque communities are dotted with halfway houses, group homes, parolees, probationers, and sex offenders. We cannot ignore the problem by pretending it doesn't exist in our supposedly-idyllic neighborhoods. It's here and we need to confront it.

26 January 2015

Law in Plain English: M&G Polymers USA, LLC v. Tackett

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogM&G Polymers USA, LLC v. Tackett

Argument: Nov 10 2014 (Aud.)

Background: Retirees and dependents of retirees from an M&G plant brought a class action lawsuit against M&G after the company announced that retirees would be required to make contributions to their health care costs. The retirees and their union sought an injunction ordering M&G to reinstate the retirees to the current versions of the benefits plans they were enrolled in to receive health care for life without contributions. The labor agreements were originally negotiated between the union as a whole and the employer, and provided for retiree health care benefits (among other things). Individual (local) plants would either adopt the master agreement as a whole or adopt the master agreement with certain exceptions or differences. Some local agreements included "side" letters or "cap" letters that capped the company's contribution toward the cost of retiree health care benefits, although these letters were not reproduced in booklets distributed to retirees and (allegedly) not ratified as part of the agreement between the employer and the local plant. The district court found that, in the absence of extrinsic evidence to the contrary, the master agreements indicated an intent to vest lifetime contribution-free health care benefits, even if the agreement itself was silent as to the duration of retiree health care benefits. The district court also concluded. then, that the cap letters did not apply to the master agreement because those benefits could not be bargained away without retiree permission. The Sixth Circuit affirmed.

Issue: The question before the Court is whether, when construing collective bargaining agreements in Labor Management Relations Act (LMRA) cases, courts should presume that silence concerning the duration of retiree health-care benefits means the parties intended those benefits to vest (and therefore continue indefinitely), as the Sixth Circuit holds; or should require a clear statement that health-care benefits are intended to survive the termination of the collective bargaining agreement, as the Third Circuit holds; or should require at least some language in the agreement that can reasonably support an interpretation that health-care benefits should continue indefinitely, as the Second and Seventh Circuits hold.

Holding: In a unanimous decision, the Supreme Court ruled that the Sixth Circuit’s decision rested on principles that are incompatible with ordinary principles of contract law. ERISA governs pension and welfare benefits plans, including those established by collective-bargaining agreements. ERISA establishes minimum funding and vesting standards for pension plans, but exempts welfare benefits plans—which provide the types of benefits at issue here—from those rules. The Court interprets collective-bargaining agreements, including those establishing ERISA plans, according to ordinary principles of contract law, at least when those principles are not inconsistent with federal labor policy. As a result, the Court vacated the judgment of the Sixth Circuit and remanded it for the appeals court to apply ordinary principles of contract law in the first instance.