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Sam Heldman


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Tuesday, April 22, 2003
No. 01-950 Hillside Dairy, et al. v. William J. Lyons

The second case argued today had to do with whether a particular federal law immunizes California’s milk laws from scrutiny under the commerce clause, or alternatively, the privileges and immunities clause. Goldstein Howe’s write-up (by Jacob) is excellent. Although I haven’t read the briefs, I feel pretty confident that the Commerce Clause will prevail and that the Court will reverse. Alternatively, I have to get to bed pretty soon because I’m getting up in 5 hours and how important is my prediction, really?

No. 02-722 American Insurance Assn. v. Garamedi

Now this is interesting. This case is about whether California’s Holocaust Victims Insurance Recovery Act (HVIRA) violates the foreign affairs doctrine or the Commerce Clause. I wrote a paper about this very issue in 2001. In the paper, I argue that HVIRA does not violate the foreign affairs doctrine. The paper was written in response to the district court’s opinion in this case. The Ninth Circuit must have heard tale of my stellar reasoning, because they reversed, as I thought they should have. Now, I guess my prediction must be that the Court will AFFIRM, particularly if they get their hands on the infamous Metzler Brief.

I have two things to say about this paper that are totally unrelated to the case. First, I went to an interview with Judge Danny Boggs of the Sixth Circuit a day or two after I had written this paper. I was pretty proud of it and so I brought it along as a supplemental writing sample. Unfortunately, on the first page, after explaining what HVIRA was an acronym for, I inexplicably started calling it “NVIRA,” and called it NVIRA 10 additional times in the 5-page paper. Judge Boggs immediately picked up on this, and I pretty much knew my chances were shot. Even if Judge Boggs had been willing to overlook my mistake, my confidence was blown.

Second, I hope the court comes out the way I predict, and the way that I reasoned it would back in 2001, because then I would feel vindicated that the “minus” in the A minus I got in that class was as unjustified as I feel it was.

No. 02-575 Nike v. Kasky

Wow. It’s 11:38, do you know what time I have to get up? The thing about this case is that California makes companies potentially liable for just about anything they do or say. California’s unfair competition law and false advertising laws are so incredibly broad that nearly anything qualifies as an “unfair business practice.” Not only that, California lets anyone sue any company that has committed an unfair business practice -- even if the person has not been injured and did not rely on the company’s statement. In fact, even if NOBODY was injured and NOBODY relied on the statement, and even if the statement is true but could possibly be misleading by omission, anyone who feels like it can bring a nuisance lawsuit against a company. The unfairness of this law convinces me that the Court will REVERSE. There are other reasons but it’s really getting late.