July 28, 2012
The United States Supreme Court on the Olympics
As the 2012 Olympics get under way in London, participants, attendees and viewers may think they are watching a modern re-enactment of the Greek classical practice also known as the Olympics. The United States Supreme Court, in its majority opinion by Justice Powell in the 1987 case of San Francisco Arts and Athletics v. U.S. Olympic Committee, pointed out the differences:
The ancient Olympic Games lasted 5 days, whereas the modern Olympics last for 10 days. The ancient Games always took place in Olympia in southern Greece; the modern Olympic Games normally move from city to city every four years. (As an effort to reduce nationalism, cities, as opposed to countries, host the modern Olympic Games.) In ancient Greece there may have been a burning fire for religious sacrifice, since the Olympic Games were part of a religious festival. The torch relay, however, was an innovation of the modern Olympic Committee. The closest parallel to the modern opening parade was the opening of the ancient Games with the chariot race. As the chariots entered the arena and passed the judges, a herald called out the names of the owner, his father, and his city. There was no general parade of athletes by locality, as in the modern Games, and the athletes were naked, not uniformed. Athletes were eligible only if they were male, freeborn Greeks. There is no indication that the ancient Olympics included an “Olympic anthem” or were organized by an entity called an “Olympic Committee.” The awards in ancient Greece were wreaths of wild olive, rather than the gold, silver, and bronze medals presented at the modern Olympics.
Olympics, 483 U.S. at 541 n.18.
The purpose of these distinctions was to support the claim that "Olympics" was not an ancient and now generic term that could be adopted by others, but a specific term owned by the United States Olympic Committee, established by Congressional statute in 1896. The Committee had brought suit against the "Gay Olympics" for using the term. Interestingly, according to the Gay Olympics Brief, the US Olympic Committee did not seek to similarly prohibit other groups that used the term "Olympics" such as the International Police Olympics; Armenian Olympics; Olympic of Ballet; Olympics of the Mind; Senior Olympics; Golden Olympics; Firemen's Olympics; United States Skill Olympics; Virginia Golden Olympics; Wrist-Wrestling Olympics; Crab-Cooking Olympics; Dog Olympics; Nude Olympics; Rat Olympics; WackyOlympics; Xerox Olympics; Alcoholic Olympics.
The Court thus rejected the Gay Olympics First Amendment argument, with Justices O'Connor dissenting in part, and Brennan and Marshall dissenting.
I discuss the case and the use of the term "Olympics" as well as other ancient Greek terms such as "democracy," in an article available on sssrn.
[image: Olympic Rings hanging from London Bridge, 2012, via]
July 27, 2012
Full Ninth Circuit To Review Failure-to-Warn Preemption Ruling
The order means that the full Ninth Circuit will review the panel ruling and possibly reverse it, allowing the plaintiffs' state-law failure-to-warn claim to go forward. It also means that the case is all the more likely to ultimately attract the attention of the Supreme Court. (There's already a minor circuit split.)
The core issue--the one that divided the three-judge panel--is whether the plaintiffs' failure-to-warn claim is sufficiently independent of the FDA's requirement that a medical device manufacturer discover and report to the FDA any complaints about the product's performance and any adverse health consequences attributable to the product. If so--that is, if the state failure-to-warn claim stands on its own, independent of FDA reporting requirements--it's likely not preempted. But if the failure-to-warn claim derives from the FDA requirement, it may be preempted.
The panel majority said that the case is governed by Buckman. In Buckman, the Court ruled that the FDCA preempted a state-law fraud-on-the-FDA claim, because the claim derived exclusively from a requirement owed to the FDA (and not directly to the plaintiffs). The Court distinguished Lohr, which held that the FDCA did not preempt certain negligence claims that paralleled FDCA requirements, writing that "the [Lohr] claims arose from the manufacturer's alleged failure to use reasonable care in the production of the product, not solely from the violation of FDCA requirements," whereas the Buckman fraud claims "exist solely by virtue of the FDCA disclosure requirements." Op. at 4094.
The dissent argued that the plaintiffs' failure-to-warn claim was an independent, preexisting state-law cause of action that did not derive exclusively from FDCA reporting requirements--that it looked more like the independent, but parallel, claim in Lohr than the FDCA-derived claim in Buckman. The dissent argued that Riegel only reinforced the Lohr holding.
July 25, 2012
Scholarly Discussion on Fisher v. University of Texas
The United States Supreme Court is set to hear oral arguments in the affirmative action case of Fisher v. University of Texas on October 10, having granted certiorari from the Fifth Circuit's decision upholding the UT plan and perhaps informed by Judge Edith Jones' stinging dissent from the denial of en banc review, as we discussed.
The Vanderbilt Law Review En Banc Roundtable has just published a series of relatively brief articles on the case:
Girardeau A. Spann, Fisher v. Grutter
James F. Blumstein, Grutter and Fisher: A Reassessment and a Preview
Vikram David Amar, Is Honesty the Best (Judicial) Policy in Affirmative Action Cases? Fisher v. University of Texas Gives the Court (Yet) Another Chance to Say Yes
Gerald Torres, Fisher v. University of Texas: Living in the Dwindling Shadow of LBJ’s America
Tomiko Brown-Nagin, The Diversity Paradox: Judicial Review in an Age of Demographic and Educational Change
Each of these articles is worth a read and the law review editors promise further exchange among the authors.
July 24, 2012
DC Circuit Upholds Airline Fee Disclosure Regulation in First Amendment Challenge
In Spirit Airlines v. US Department of Transportation, a divided opinion by a DC Circuit panel today upheld DOT regulations. The airlines challenged three regulations, all on arbitrary and capricious grounds, but also included a First Amendment challenge to the regulation that requires the most prominent figure displayed on print advertisements and websites be the total price, inclusive of taxes.
There were several arguments about the correct standard of review under the First Amendment:
- Strict scrutiny, applied to laws burdening political speech. The airlines argued they have “a First Amendment right to engage in political speech that informs [their] customer base of the huge tax burden that the federal government imposes on air travel.”
- Intermediate scrutiny, as defined in Central Hudson and applied to laws regulating commercial speech, Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (1980);
- Reasonableness review, as defined in Zauderer and applied to laws requiring “purely factual” disclosures “reasonably related to the State’s interest in preventing deception of consumers,” Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 651 (1985).
The court easily rejected thepolitical speech argument, concluding that prices are "quintessentially commercial." As between Central Hudson and Zauderer, however, the panel found that Zauderer governs mandated disclosures, citing Milavetz, Gallop & Milavetz, P.A. v. United States (2010). The rule, the panel held, was clearly directed as disclosure, and allowed airlines to call attention to taxes and fees in their advertisements, but not by making them more prominent than the total, final price the customer must pay. This, the majority held, was clearly reasonable.
However, the majority reasoned that the rule also satisfied Central Hudson - - - a point of disagreement with the dissenting judge, who concluded not only that the Central Hudson test applied but that it was not met. Senior Judge Randolph, dissenting, gave more credence to the airlines political speech argument than the majority, and his reasoning is worth reading. However, assuming the speech was commercial, he was skeptical of the government interests and in any case found that they were not directly advanced by the regulation.
The opinion, coincidentially rendered on the 115th birthday of aviator Amelia Earhart, pictured above, would make a great commercial speech problem for First Amendment class. It challenges students to consider the boundaries between political speech, commecial speech, and "mere" disclosure.
Eighth Circuit En Banc Upholds Compelled "Suicide Warning" for Abortion Procedures
In a 7-4 en banc opinion today in Planned Parenthood v. Rounds, the Eighth Circuit disagreed with the panel opinion and the district judge and upheld the constitutionality of a South Dakota statutory provision requiring the disclosure to patients seeking abortions of an “[i]ncreased risk of suicide ideation and suicide,” S.D.C.L. § 34-23A- 10.1(1)(e)(ii).
Planned Parenthood contended that requiring a physician to present the suicide advisory imposes an undue burden on abortion rights and violates the free speech rights of the physician. The court conflated the undue burden (due process) claim and the physician First Amendment claim: "In short, to succeed on either its undue burden or compelled speech claims, Planned Parenthood must show that the disclosure at issue “is either untruthful, misleading or not relevant to the patient’s decision to have an abortion.”
Judge Gruender's opinion for the majority seemingly acknowledged that there was no evidence that abortion caused suicidal ideation. Instead, the issue was the "accepted usage of the term 'increased risk' in the relevant medical field." The opinion found that based on the medical usage, the statutory requirement "does not imply a disclosure of a causal relationship," instead it is merely a disclosure that "the risk of suicide and suicide ideation is higher among women who abort compared to women in other relevant groups, such as women who give birth or do not become pregnant."
The majority rejected the relevancy of Planned Parenthood's argument that certain underlying factors, such as pre-existing mental health problems, predispose some women both to have unwanted pregnancies and to have suicidal tendencies, resulting in a misleading correlation between abortion and suicide that has no direct causal component. Planned Parenthood argued that the required disclosure would be misleading or irrelevant to the decision to have an abortion because the patient’s decision would not alter the underlying factors that actually cause the observed increased risk of suicide. But the majority found that a correlation - - - seemingly for any reason - - - was sufficient: "the truthful disclosure regarding increased risk cannot be unconstitutionally misleading or irrelevant simply because of some degree of 'medical and scientific uncertainty,' as to whether abortion plays a causal role in the observed correlation between abortion and suicide."
In contrast, the four dissenting judges, in an opinion by Judge Murphy, stated that the "record clearly demonstrates" that "suicide is not a known medical risk of abortion and that suicide is caused instead by factors preexisting an abortion such as a history of mental illness, domestic violence, and young age at the time of pregnancy." The dissenting opinion read the statutory provision to require doctors to tell a pregnant woman that a greater likelihood of suicide and suicide ideation is a "known medical risk" to which she "would be subjected" by having an abortion. S.D.C.L. § 34-23A-10.1(1)(e) (2005) (emphasis added). This causal language troubled the dissenting judges, who concluded that the suicide advisory places an undue burden on a pregnant woman's due process rights and violates a doctor's First Amendment right against compelled speech.
Both opinions rehearse and discuss the social science and psychological studies before the court and both opinions admit the studies are flawed. However, by rejecting the necessity for causation in a warning about a medical procedure given for informed consent, the majority rests its opinion on correlation even if there is "some degree of 'medical and scientific uncertainty" as to the reasons for any correlation.
[image:Sappho Leaping into the Sea from the Leucadian Promontory, circa 1840, via]
July 23, 2012
Shelby County, Nix Take Voting Rights Act Challenge to Supreme Court
Petitioners Shelby County and John Nix filed two separate cert. petitions late last week seeking Supreme Court review of a D.C. Circuit decision upholding the preclearance provisions of the Voting Rights Act. Shelby County's petition is here; Nix's petition is here. More on the differences below.
The petitions put the preclearance provisions of the Voting Rights Act squarely before a Supreme Court that seems chomping at the bit to take them on--and to overturn them.
The move was expected. With the Supreme Court's statement three years ago in Northwest Austin Municipal Utility District v. Holder that the preclearance provisions "raise serious constitutional questions," the Court's reiteration more recently in Perry v. Perez, and the spate of challenges now percolating in the lower courts, Shelby County v. Holder was the first circuit ruling dealing squarely with the 2006 reauthorization of the VRA. A split three-judge panel upheld the provisions and ruled that another, related case (Nix's case) was moot. The ruling teed the challenge up for Supreme Court review.
At issue: Section 5 of the VRA, which requires covered jurisdictions to obtain "preclearance" from the Department of Justice or a three-judge panel of the United States District Court for the District of Columbia before making changes to their voting standards, practices, or requirements; and Section 4(b), which provides the formula for determining which jurisdictions are covered.
Recall that the D.C. Circuit in Shelby County upheld Section 5 and Section 4(b) of the VRA. But that court also ruled that Nix's case--challenging the new reauthorization standards that Congress put into place in the 2006 reauthorization--was moot, because the DOJ reversed course and cleared the voting change at issue.
The two cert. petitions cover two distinct issues. Shelby County's cert. petition argues that the D.C. Circuit erred in upholding Sections 5 and 4(b). In short, Shelby argues that the preclearance requirement in Section 5 exceeds congressional authority to enforce the provisions the Fourteenth and Fifteenth Amendments--that it's not "proportional and congruent" to the "evil" that it seeks to remedy--and that Congress neglected to change the coverage formula in Section 4(b) in response to changed conditions.
Nix's cert. petition argues that the substantive changes to the preclearance standard that Congress enacted in 2006 exceed congressional authority. Nix says that Congress, in reauthorizing Section 5 in 2006, changed the preclearance standard in response to two Supreme Court decisions that narrowed that standard, thus exceeding its authority. Nix claims that before 2006, preclearance could be denied only if the jurisdiction failed to prove that its voting change did not have the "purpose" or "effect" of causing "a retrogression" in minorities' "effective exercise of the electoral franchise," as determined by "all the relevant circumstances." (Citing and quoting Georgia v. Ashcroft and Reno v. Bossier Parish School Board.) But Nix argues that Congress changed this standard in the 2006 reauthorization by eliminating the "all relevant circumstances" flexibility and by requiring covered jurisdictions to "prove that even a change that does not make minorities worse off lacks the 'discriminatory purpose' of not making them better off." These changes, say Nix, exceed congressional authority.
Because the D.C. Circuit ruled Nix's case moot, Nix has the additional burden of arguing that his case isn't really moot. He does this by claiming that the DOJ cleared the jurisdiction only to avoid judicial review of his arguments.
With two strong statements from the Court about the questionable constitutionality of VRA preclearance, look for the Court to grant these petitions--and likely overturn these key provisions of the VRA.
July 23, 2012 in Cases and Case Materials, Congressional Authority, Elections and Voting, Equal Protection, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack
Seventh Circuit En Banc: Violation of Establishment Clause to Hold High School Graduation in Church
In its en banc opinion today in Doe v. Elmbrook School District, the Seventh Circuit en banc found a First Amendment Establishment Clause violation when two high schools held their graduation ceremonies in a church.
The majority stressed the specific facts concluding that "the involvement of minors, the significance of the graduation ceremony, and the conditions of extensive proselytization prove too much for the [School] District’s actions to withstand the strictures of the Establishment Clause." It would be a "very different case," the opinion notes, "if a church sanctuary were the only meeting place left in a small community ravaged by a natural disaster." But here, the schools rented the church because the space had better seating and air conditioning, despite the large cross, the pews with Christian hymn books, and other religious literature and symbols.
Judge Flaum's careful opinion for the majority notes that the three-pronged test set forth by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971), “remains the prevailing analytical tool for the analysis of Establishment Clause claims,” citing circuit precedent, and articulates the Lemon test: a governmental practice violates the Establishment Clause if it (1) lacks a legitimate secular purpose; (2) has the primary effect of advancing or inhibiting religion; or (3) fosters an excessive entanglement with religion. More importantly, Flaum highlighted the "endorsement test" (as part of Lemon's second prong) and the coercion test, certainly "less clear" in terms of its relation to the Lemon test. Considering the facts - - - and the "social facts" - - - Flaum's opinion concluded that in this instance the graduation in church conveyed a message of endorsement and could not be meaningfully distinguished from the Court's coercion precedent, Lee v. Weisman, 505 U.S. 577 (1992); Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000).
The dissenting opinion by Judge Ripple, joined by Easterbrook and Posner, stresses the church as a mere "landlord." Easterbrook's sole dissenting opinion mines a similar vein: "Holding a high school graduation in a church does not “establish” that church any more than serving Wheaties in the school cafeteria establishes Wheaties as the official cereal." Posner's sole dissenting opinion levels the critique at the doctrine itself:
The case law that the Supreme Court has heaped on the defenseless text of the establishment clause is widely acknowledged, even by some Supreme Court Justices, to be formless, unanchored, subjective and provide no guidance. See, e.g., Utah Highway Patrol Ass’n v. American Atheists, Inc., 132 S. Ct. 12 (2011) (dissent from denial of certiorari) (“Establishment Clause jurisprudence [is] in shambles,” “nebulous,” “erratic,” “no principled basis,” “Establishment Clause purgatory,” “impenetrable,” “ad hoc patchwork,” “limbo,” “incapable of consistent application,” “our mess,” “little more than intuition and a tape measure”); Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 398-99 (1993) (concurring opinion) (a “geometry of crooked lines and wavering shapes,” a “ghoul in a late night horror movie” that can’t be slain even though “no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart”).
As the majority acknowledges, and the dissents argue, the analogy to voting in churches is a pertinent one. But the majority distinguishes the “history and circumstances” of voting practices from high school graduations.
At more than 80 pages - - - with the dissents as lengthy as the majority - - - this opinion provides much fodder for the continuing debates about the efficacy of Establishment Clause doctrine. Yet at its base, there seems to be a great divide regarding the relevance of a large cross at a high school graduation.