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Thursday, March 06, 2003
Panel wins, I lose


Among the many predictions I made which have turned out to be incorrect in recent weeks was that the White Mountain Apache indian law case would be reversed. The day after the oral arguments, I attended a panel given by Georgetown University Law Center's Supreme Court Institute. The panel predicted that the White Mountain Apache case would be affirmed, but that the Navaho case would be reversed. The panel was right on.


Later today I will post a summary of the prediction game so far. In short, Sam Heldman is kicking my butt. The worst part is that in almost every case that we disagree on, his prediction is the correct one. The one exception was the Boeing case, which I predicted correctly and he did not.





Wednesday, March 05, 2003
No. 02-196 National Park Hospitality Assn. v. Department of the Interior


Ok. I know that this is a day late. Two days late, considering that the intent was that predictions be made before the day of oral argument. I have no excuse. Nevertheless, I have not read anything about the oral arguments, so here is my prediction:


This case is about whether contracts entered into by the National Park Service with the companies that run concessions at national parks are covered by the provisions of the CDA. No, not the Communications Decency Act, but the Contract Disputes Act of 1978. The CDA provides more advantageous and uniform treatment to claims under the contracts that it covers.


In the decisions below, the Court of Federal Claims and the D.C. Circuit held that the concession contracts were not “procurement” contracts because they did not involve the purchase by the government of services for itself. By the text of the CFC, it applies to all contracts for the “procurement” of property or services.


It seems to me that the petitioners’ argument that a “contract for procurement” is not a “procurement contract” is unavailing. I admit that I was convinced after reading the petitioner’s brief, but then, I know nothing about government procurement. The petitioner glossed over most of the government’s arguments, failing to answer why “procurement” should mean something different in this case than it does in other areas of procurement law. I predict the Court will AFFIRM.


What I find to be an interesting question about this case is that the NPS has a disclaimer in its model contracts specifically denying that the CDA applies to them. My question is, can an agency bargain for a contractor to forego any remedies it might have under the CDA, if the CDA would otherwise apply? On the one hand, that would defeat the intent of Congress in enacting the CDA, that contractors would have uniform remedies. However, it seems clear that if a contractor had a claim, and through negotiation came to a settlement with an agency, the agency could require the contractor to disclaim any further remedies under the CDA as a condition of the settlement. Such a contractual provision should be enforceable; otherwise, the agency would be crippled in its ability to reach settlements.


But then, why couldn’t the agency just contract out of any CDA liability in advance? If it can, then the contractor would be estopped from asserting such claims, because part of the consideration provided under the contract was the specific disclaimer of CDA claims. Although I have not done any research to support this analysis, I nevertheless offer it as another reason the Court will affirm.


No. 02-361 United States v. American Library Assn.


This is a case about free speech and the spending power, two of my favorite subjects. Congress enacted The Children's Internet Protection Act (CIPA), providing that libraries that are otherwise eligible for federal funds for internet access must have some sort of software that prevents anyone from accessing obscenity or child pornography, and that prevents minors from seeing “visual depictions” that are “harmful to minors.” If a library fails to implement such measures, it faces the loss of federal assistance.


So the question is, by this spending condition, is the federal government inducing libraries to violate the First Amendment? If so, the spending condition is beyond the Spending Power, because inducing a constitutional violation cannot be said to be in furtherance of the General Welfare.


Well, let’s take this one piece at a time. Congress can ask the states to do things that it could not order them to do by attaching strings to federal funds under South Dakota v. Dole. So, even though it might violate the 10th or 21st Amendments if the federal government were to require that all states raise their drinking age to 21, Congress can encourage such laws by making them a condition federal highway funds. A state has the discretion to set its drinking age, so encouraging that action is not unconstitutional.


In this case, the government asks that libraries prevent access to obscenity and child pornography, and to “harmful” depictions in the case of minors. The respondents argue that such an action by libraries necessarily would violate the First Amendment, but I just don’t see it. Libraries are not required to have access to the internet at all, so the lack of any access does not violate the First Amendment. Nor, I think, would it violate the First Amendment if a Library simply allowed access to its own public web site and no other. If one imagines that each site is a collection that the library makes an affirmative decision to include or not include, then eventually one reaches the conclusion that the library can add the entire internet, save whichever collections (ie. sites) it feels like not including. Prior decisions have applied only rational review to a library’s decision to include or not any particular material in its collection.


Thus, because the selection of materials on the internet, save those, access to which would result in the loss of federal funding, would not violate the First Amendment, the spending condition here is valid. I predict the Court will REVERSE.


No. 02-258 Jinks v. Richland Co.


The question here is “Whether the tolling provision of the federal supplemental jurisdiction statute, 28 U.S.C. § 1367(d), invades state sovereignty in violation of the U.S. Constitution's Tenth Amendment and its Necessary and Proper Clause.”


As a total aside, ever since the first year of law school, I have always found objectionable the prevalence of “questions presented” that begin with the word, “whether.” I object for two reasons: First, the result is a fragment. “Whether x is true,” is not a sentence. “Is x true?” That’s a sentence. Furthermore, the fragment isn’t even a question, in that it’s not a sentence and does not end with a question mark. Of course, I realize that if you begin the sentence with “The question presented is,” then you get a complete sentence that correctly uses the word, “question,” in that question can be defined as “a subject or point open to controversy.” Dictionary.com. I also realize that my minor annoyance will not change the way questions presented are, well, presented. Nevertheless, I had to get that off my chest.


Okay, so back to Jinks. What the “question presented” means is this: A federal court has jurisdiction to hear certain state-law claims that are related to the same transaction or occurrence as a claim being pursued in federal court. The court has discretion, however, to decline to hear such cases if they are too complex and will predominate over the federal questions. When such a case is dismissed, the applicable state statute of limitations is tolled during the time that the state-law claim is pending in federal court, and for 30 days thereafter.


That only makes sense. If a litigant brings her case to federal court, she should not have to simultaneously file in state court. After all, she will expect that the federal court will review the issue. If it turns out that the cause of action is dismissed from the federal suit, should she be prevented from filing if the state statute has run in the mean time? Of course not.


The wrinkle is when this is applied to a suit against the state itself, or in this case, against a county. The county, as an arm of the state, enjoys some degree of sovereign immunity. The state gets to decide under what terms it can be sued in its own courts. So, if the state decides that the county can only be sued during the state statute of limitations, without any tolling due to a federal case, does the federal law violate the 10th Amendment by mandating that the cause is tolled?


Well, the federal government says no. They thought of this when they first passed the supplemental jurisdiction statute. Basically, in order for the federal courts to function properly, the cause has to be tolled, thus, tolling is appropriate under the Necessary & Proper Clause.


In this case, the Supreme Court of South Carolina disagreed. The court thought that although it may be necessary, it is not proper that the federal government tell the state when it may be sued. How will the Supreme Court decide? I’m not really sure. I’m going to guess that the Court will REVERSE. The states have already consented to be sued, and it would create a whole host of problems if parties had to file separate suits just to protect against the eventual dismissal of the federal cause of action and tolling of the statute.





Monday, March 03, 2003
No. 01-1806 Illinois v. Telemarketing Associates, Inc.


The second case argued today is about whether a state may bring a fraud action against a telemarketing company based on its failure to disclose that it keeps 85% of all donations. The main question here is over whether the amount of the telemarketer’s take is material to whether the solicitation was fraudulent.


In general, states may not regulate charitable fundraising by prescribing how the percentages of funds raised are used. The Court has previously held that a state may not prohibit an “unreasonable” fee in charitable solicitations. Riley v. Nat’l Federation of the Blind, Inc, 487 U.S. 781 (1988). In addition, the Court has stuck down regulations that set the maximum percentage of donations a professional fundraiser may keep, Maryland v. Joseph H. Munson Co., 467 U.S. 947 (1984), and regulating the minimum percentage of donations a charity must use for charitable purposes. Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980).


In each of those cases, however, the charity or fundraiser was challenging a state-enacted restriction on charitable fundraising. The Court repeatedly held that such regulations were not narrowly tailored to address the state’s compelling interest in preventing fraud. In this case, however, the state has brought a fraud action, alleging that in light of the percentage of donated funds that the respondent keeps, its assertions to donors of how donated funds will be used were misleading and amounted to fraud.


Unlike the above-cited cases, a fraud suit brought by the state is narrowly tailored to address the state’s compelling interest in preventing fraud. If the prosecution of a single company isn’t narrowly tailored, I have no idea what is.


The respondent in this case acts as if the state’s power to enforce its fraud laws creates an atmosphere in which no charity would be able to raise funds, for fear that it would be prosecuted for fraud. The respondent is wrong because all a charity need do is neglect from making misrepresentations. As for when a charitable solicitation amounts to fraud, that determination is not made by the state, as the respondent’s brief suggests. It is for the jury to decide whether a misrepresentation in fact occurred.


The fallacy of the respondent’s argument is illustrated by taking the case to extremes. If the telemarketers did not have any contract with any charity, then clearly their misrepresentation of a charitable purpose would be actionable fraud.


Now, what if the telemarketers had a contract whereby they were authorized to solicit funds for the charity, so long as the telemarketers turned over one dollar per year to the charity? Thus, a miniscule portion of each donation goes to the charity. Such a case would still constitute fraud, as the fundraisers are not really raising funds for the charity at all. They would be raising funds for themselves, in the name of charity, and turning over a nominal amount to the charity. This is no less true if the contract provided that 0.01% of donations would go to the charity. In such a case, the amount of the donation increases the amount actually received by the charity, but it is laughable to say that the percentage is irrelevant.


However, that is exactly the argument made by the telemarketers. As you might have guessed, I predict the court will REVERSE.





I am back from taking the Virginia Bar. I hope all three or four of you out there reading this will pause at this point and offer a silent encouragement that the Virginia Board of Bar Examiners see fit to find that I displayed minimum competency to practice in the Commonwealth in my answers last Tuesday and Wednesday.


It is lucky that the Virginia Bar does not require accuracy in predicting the outcome of Supreme Court cases in order to be admitted, because I seem to have incorrectly predicted pretty much every case that has come down in the last couple of weeks. That also provides a more than adequate reason for my reluctance to predict how well or poorly I did on the bar.


I am also late in predicting the two cases that were argued today. However, I am convinced that because I have, essentially, lost two months of my life to studying for the bar, I am metaphorically still ahead when it comes to predictions. I have not read any press accounts of the arguments. Thus I offer my predictions of the case that will be argued … that is, were argued this morning, Monday, March 3, 2003:


No. 02-5664 Sell v. United States


Here is an interesting criminal law question: May a court order that a prisoner be medicated in order to become competent enough to stand trial? Unfortunately, the posture of this case is that the district court said that the petitioner could be medicated, and the Court of Appeals affirmed that decision, but on direct, interlocutory appeal, before Sell was tried. Accordingly, the Court ordered the parties to be prepared to discuss the jurisdictional issue.


I predict the court will DISMISS this case as improvidently granted. Although I have not read the parties’ supplemental briefs on this issue (How could I? They aren’t due until the end of the week!), I still think that this case does not meet the requirements for an order for which interlocutory review is appropriate. What I remember about interlocutory appeals is that they must be on an important issue (check), separate from the merits of the case (check), which cannot be adequately addressed on direct review (uh oh).


It seems to me that the point here is whether Sell can be forced to submit to medication against his will in order to stand trial. If the Court were to decide that forced medication is unconstitutional, then Sell’s remedy after trial would simply to have the results of that trial vacated. Holding the trial itself, even with the forced medication, does not prejudice Sell. In fact, if the medication reduces his delusions, then he would be benefited. Thus, if it turns out in hindsight that he should not have been forced to be medicated, then he gets both the benefits of medication and his trial vacated. A win-win situation. Plus, there is always the chance that Sell will not be convicted -- a win-win-win.


The only possibility of prejudice is that Sell could be tried on the merits, found guilty, and then both the sentence and the involuntary medication could be affirmed. But a defendant can hardly claim that he is prejudiced by being tried, while competent, for crimes that he actually committed. Thus, I believe the Court will DIG this case. If it decides not to DIG, I’ll give myself 1/2 credit if it AFFIRMS the Court below, holding that the petitioner may be medicated against his will in order to bring him to trial.