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Does Standing Require Injury?

The 1974 Real Estate Settlement Procedures Act bars, among other things, kickbacks by title insurance companies. Under the law a plaintiff can sue without having to show actual injury. At least that was the argument made by the lawyer representing Denise Edwards, the homebuyer in this case who sued First American Financial Corp. SC111128_Lamken

But it was an uphill battle. Justice Scalia questioned, “I’m not even sure it’s proper to call it a kickback. It’s a commission.” And Justice Alito told Edwards’ attorney, Jeffrey Lamken, “We are looking for whether there is injury in fact.” SC111128_Panner

In his rebuttal Aaron M. Panner, the lawyer for First American, reaffirmed that “what is required is an injury-in-fact, a harm to the plaintiff who is seeking to obtain redress from the courts.

Mike Sacks brilliant analysis of the argument is here.




The Cheese and the Worms in Bologna

These are sketches of historian Carlo Ginzburg being interviewed by artist Jorge Satorre in Bologna. Ginzburg is the author of that seminal work of microhistory, Il fromaggio e i vermi, The Cheese and The Worms. Menocchio110929_Satorre_Ginsburg





The Meat of Preemption

In 2009, in reaction to a disturbing Humane Society video documenting the mistreatment animals at one of its slaughterhouses, California passed a law banning the purchase, sale and butchering of animals that are unable to walk to their demise.  SC111109_Wells

Such non-ambulatory, “downer” animals were to be immediately euthanized. But the Federal Meat Inspection Act says that for some animals, in this case swine, an inspector should determine if the animal is sick and unfit for human consumption, or merely tired and lazy. SC111109_Smith

During yesterday’s arguments it appeared that the Justices are incline to strike down California’s law because Federal law trumps, or preempts, State law.  Still, it’s not that simple.

Justice Breyer:  “Do we have to write an 11-part opinion where we treat each of these different things, which are different, separately and analyze it?  To write an 11 part opinion or do we treat each of these differently separately and analyze it.  I’m not trying to get out of work.  I just want to know.” 

Justice Scalia: “I’d like to get out of the work, to tell you the truth.”

WaPo story here.






Big Brother is Watching

The Supreme Court struggled with privacy rights in the digital age during arguments on warrantless GPS tracking. SC111108wide_Leckar

DC police investigating a nightclub owner, Antoine Jones, in a drug case put a tracking device on his car and tracked its movements every ten seconds for a month. Stephen C. Leckar, shown above, argued the case for Jones. SC111108_Breyer

Justice Breyer told the government’s lawyer, Deputy Solicitor General Michael Dreeben, “if you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States…..sounds like ‘1984.’” SC111108_Dreeben

“The court should address the so-called ‘1984’ scenarios if they come to pass, rather than using this case as a vehicle for doing so,” replied Dreeben.

Huff Post’s Mike Sacks has the full story here.