Administrative Law Prof Blog

Rules are rules. Recruiting Middle School Kids off limits.

The Supreme Court upholds a Tennessee rule restricting High Schools from recruiting middle schoolers, rejecting the constitutional defense of free speech.  Justice Stevens sums it up with "games have rules" so follow 'em.  More seriously, the Supreme Court recognizes that "[h]ard-sell tactics directed at middle school students could lead to exploitation, distort competition between high school teams and foster an environment in which athletics are prized more highly than academics." CQ

How to fight an administrative ruling

An update on the efforts of Save Net Radio to battle the ruling by one of the newer Admin Boards on the block: The Copyright Royalty Board (CRB) created in May 2005.  In a week, on June 26, anyone who listens to internet radio while at work, like myself, will have to resort to the CD player as webcasters in a show of protest will go silent. This is a long battle through the admin process, including a denied appeal and another try at a rehearing, and a good example of the alternatives to fight an administrative ruling.  As you recall, the CRB decided to triple the royalty fees for broadcasting music online effective July 15 and retroactive to January 2006.  The result on internet broadcasters will set royalty costs at less than one fifth of a penny per song played by 2010, which calculations results in a 300 percent increase for the big dogs like AOL and Yahoo! and a whopping 1200 percent for the small guys. The most vocal coalition of artists, labels, internet radio listeners and webcasters, Save Net Radio is lobbying hard in Congress to fight this administrative decision.  And indeed they got Congress' attention, through a bill sponsored by Reps. Don Manzullo (R-Ill.) and Jay Inslee (D-Wash.) and co-sponsored by 118 other representatives that sets a standard fee of 7.5 percent of revenue, applicable for Internet cable, satellite radio and jukeboxes. The bill is still in committee. A resounding retort by SoundExchange, the company that collects and distributes royalties from Internet radio, claims that 82 percent of its royalties were collected from the ten largest webcasters and accused Save Net Radio as being a front for large webcasters. For full article, click here.  Stay tuned, except on June 26. CQ

Judicial Ehitcs Rules for NYC ALJ's

Recently a few different people have asked me questions about judicial ethics or rules pertaining to the conduct of judges.  New York City voters recently endorsed new Rules of Conduct for Administrative Law Judges and Hearing Officers of the City of New York, which I found interesting mostly in the minute detail regarding what is and isn't impropriety for ALJs.

-Dru Stevenson

SEC authority and penalties trump antitrust treble damages

Recent U.S. Supreme Court decision, Credit Suisse Securities (USA) LLC, et al. v. Billing et al, held that the SEC's regulatory authority (and penalties) trump antitrust lawsuits.  The particular case at issue involves allegations that investment banks, including Credit Suisse Securities (USA), conspired to impose illegal tie-ins, or "laddering" arrangements, where favored customers were able to obtain highly sought-after new stock issues in exchange for promises to make subsequent purchases at escalating prices and then conspired to levy additional charges for the stock. The take alleged was average price increases on the first day of trading of more than 70% in 1999-2000, 8½ times the level from 1981 to 1996.  Could Congress consciously intend to protect the securities industry from antitrust lawsuits and the (dis)incentive of treble damages?  Thomas' dissent says no.  See report by USA Today .

Morrison v. Olson and Scooter Libby

The ongoing furor over Judge Walton, Scooter Libby and the six page brief filed by prominent constitutional scholars draws many a comment. Recent Law Blog posed the comment on the legality of the appointment of the special prosecutor in the case by Prof Doug Kmiec, of Pepperdine Law School who recently lectured at the William S. Richardson School of Law, University of Hawaii. His impressive background in the administrative realm, both teaching as a White House special counsel, is more than enough to give his 900-word email pause. He reminds us of Morrison v. Olson and writes that “the Constitution cautions us against giving prosecutors an appointment of unsupervised independence especially when it is aimed at investigating a single incident of highly political origin and is largely concentrated upon one person.” With his deep abiding passion for teaching, he goes a step further in retort to Judge Walton’s disparaging remark about the six page brief that “the submission was not something I would expect from a first-year law student" with “I for one would be pleased by any first-year law student who would understand why it is important for these matters of due process and constitutional legal principle to be raised even in behalf of (maybe especially in behalf of) an unpopular criminal defendant.” Something every class should read perhaps.