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Fraud-On-The-Market Theory, What’s That?

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This morning before the Supreme Court convened to hear a securities fraud case I spotted lawyer David Boies, who would be arguing for the class action plaintiffs (here the respondents), standing by himself as if in reverie, gazing at the statue of Justice John Marshall. Unfortunately Tom Goldstein, another veteran of the Court, sketchbombed my drawing under the pretense of having a chat with Boies.

The argument itself, Halliburton v. Erica P. John Fund, was way over my head. Fraud-on-the-market theory? Price impact v. market efficiency ? Better that I leave it alone and just post my sketches.

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Lethal Force and the High-Speed Chase

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Frigid temperatures this morning means that, no, I didn’t sketch that Carolina wren al fresco outside the Supreme Court. A friend took a picture of it yesterday in Ellicott City which I stole for this composition. So, sue me.

Do police officers who fire shots at a vehicle during a high-speed chase violate the Fourth Amendment by using “unreasonable” force?  Most of the Justices seemed not to think so, as long as the chase itself poses a danger.

Chief Justice Roberts: “is there any situation in which it would violate clearly established constitutional law for the police to use lethal force?”

Michael Mosley: “I hate to use television as an example, but perhaps the way the white Ford Bronco fled in the early 90′s that everybody saw on TV.”

The lawyer arguing for the daughter of the driver slain in the volley of shots fired by the police was peppered with questions from the bench, often incredulous or sarcastic.

Justice Scalia: “Okay, . . . You think it is clearly established law that you cannot shoot to kill a driver whose car is moving? Is that it?” 

Gary K. Smith: “If . . . “

Scalia: “Is that the principle you say is clearly established?”

Smith: “If doing so . . . “

Scalia: “My goodness, they do it all the time. You watch the movies . . . it happens all the time. Are these movies unrealistic? You cannot shoot to kill somebody in a moving car?”

Smith: “In a . . . “

Scalia: “And that is not just your view. It is, you say, clearly established law?”

The case is Plumhoff v. Rickard

 

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A Little Excitement at the Staid Court

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SCOTUS in Snow
After a slippery sloppy commute on a snowy morning a couple of quiet hours listening to patent law arguments seemed like a good opportunity for a snooze. I was sketching on auto-pilot as the first argument, Octane Fitness v. Icon Health & Fitness, was concluding when a loud voice coming from the back of the courtroom startled me out of my somnolence. “Corporations are not people, money is speech. Overturn Citizens United.” shouted a young man before Court security officers whisked him away.

He was later identified as Noah Newkirk and charged with making “a harangue or oration . . . in the Supreme Court Building.” I think this may be him. The young man, it turns out, is Noah Kia Newkirk, a member of a group called 99Rise.org whose aim is to “get big money out of American politics.” It appears his outburst was in part staged for a video camera that was smuggled into the courtroom. The video shows that this is not the first time this group has captured the Court on camera. Footage at the beginning is from McCutcheon v. FEC, a campaign Finance case argued in October and yet to be decided. It also turns out that the footage at the beginning, though labeled McCutcheon v. FEC, is actually from arguments in  Burt v. Titlow, another case argued the same day.

I initially sketched him with a moustache and goatee, but on reflection I think he just had a heavy five o’clock shadow. It all happened very fast and I am not possessed of a photographic memory. Not a very good drawing.

Anyway, here are a couple sketches from the argument that I managed to finish. I think they are more successful.

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Baseball Bats and Rotten Tomatoes

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The lawyer for a home mortgage loan fraudfeasor (I learned a new word today) had a number of colorful hypotheticals tossed at him by the Justices as they tackled a question of restitution. Here’s what he had to juggle, starting with Justice Breyer who is the Talmudic scholar of hypotheticals:

Breyer: “Mrs. Smith, I have a bridge I’d like to sell you.”. . “But I also gave her my valuable Babe Ruth bat.”

Alito: “Suppose what the person who perpetrated the fraud returns is a truckload of tomatoes . . . and by the time the tomatoes can be sold they’re all rotten.”

Scalia: “You’re really confusing me. I . . I . .both the baseball bat and the truckload of tomatoes?”

The case is Robers v. United States

 

 

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Justices Hear Arguments On EPA’s “Tailoring Rule”

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Even before the Justices took the bench for what might have, mistakenly, seemed like a blockbuster argument on global warming – there was even a demonstrator in polar bear costume on the plaza – the spotlight shifted to the Court’s decision not to hear two NRA challenges to gun regulation laws.

Today’s case, actually six different lawsuits rolled into one, was not about the Environmental Protection Agency‘s power to regulate greenhouse gases. That was settled seven years ago in Massachusetts v. EPA. The arguments heard by the Justices today focused on the EPA’s “tailoring rule” under which the agency adjusts, or tailors, the threshold at which certain pollutants must be regulated.

Under the Clean Air Act limits were established for stationary sources of pollution such as factories and refineries, but the limits for those traditional pollutants like sulfur and nitrous oxides, 100-250 tons per year, are much too low for greenhouse gases which are emitted in much higher volumes.

It is interesting that the usually pro-regulation side supporting the EPA was today arguing for less regulation, saying that applying the limits, without tailoring, would mean regulating every mom & pop factory and overburden an already overburdened bureaucracy. The EPA’s opponents, on the other hand, hope that overturning the rule and expanding regulation to include small sources will cause a backlash against the agency.

Lyle Denniston’s recap of the arguments in Utility Air Regulatory Group v. EPA is here.

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“Don We Now Our Gay Apparel . . . “

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. . said Justice Scalia as he delivered the opinion in Sandifer v. U.S. Steel, explaining the use in this case of the somewhat archaic terms “don” and “doff”, as in “a well bred gentleman still doffs his hat to a lady”.In this case the union had an agreement with U.S. Steel that “time spent in changing clothes at the beginning or end of each workday” would not be compensated. The petitioners argued that they weren’t changing clothes, but donning and doffing protective gear. The Court did not go as far as U.S. Steel wanted and say “everything that a person wears” is clothing, but everything else is “de minims non curate lex”*.

* Trans.: the law does not take account of trifles

There once was a lawyer named Rex
With minuscule organs of sex.
        Arraigned for exposure,
        He maintained with composure,
"De minimis non curat lex."

 

Posted in Opinions, Supreme Court Tagged with:

SCOTUS In The Cold

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Even the turtles holding up the Bronze lamps on the Supreme Court plaza seemed to want to pull in their heads from today’s frigid temperatures.

Inside, the Justices heard arguments in two puzzling cases.The first, Paroline v. U.S., presented the Court with the problem of apportioning restitution to victims of child pornography. In this digital age, where the same image can be downloaded by many participants in the sexual exploitation of a child, to what extent is each viewer responsible for the humiliation and damage suffered?The lawyer for the victim, Utah law professor Paul Cassell, in this case insisted that each perpetrator should be responsible for the entire $3.4 million award. “You’re not claiming - or are you” asked Justice Kagan, “that she’s been victimized to the tune of $3.4 million as a result of this particular defendant’s offense?”

“He contributed to the entire amount,” said Cassell.

The second case, Abramski v. U.S., concerns the so-called “Straw Purchaser” law that is supposed to prevent sales to those not entitled to own firearms, such as convicted felons, by requiring gun dealers to have buyers fill out a form. The form asks, ”Are you the actual transferee/buyer of the firearm listed on this form?”Justice Breyer, pictured above on the left, known for often posing convoluted hypotheticals had an esoteric analysis of the term ‘Straw Purchaser’. “It comes from ‘straw bail’,” he told petitioner’s lawyer, RichardDietz, “where someone else put up the bail and it was called straw because the people who made a career of that used to wear straw in their shoes. Interesting.”

“He made that up,” Justice Scalia interjected.

Lyle Denniston’s analyses of the arguments are here, and here.

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The 35 Foot Abortion Clinic Buffer Zone . . .

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. . . and the considerably larger Supreme Court chamber.A challenge to the Massachusetts law creating a 35 foot buffer zone around the entrance to abortion clinics, McCullen v. Coakley, was argued before the Supreme Court today. The last time the Court visited this issue was in 2000 when it approve a protective “bubble” for anyone entering a clinic. Catholic University law professor Mark L. Rienzi, pictured above, argued for the 77 year-old grandmother, Eleanor McCullen, who has stood outside a Boston Planned Parenthood clinic a couple days a week for the past ten years, or so.

Justice Scalia repeatedly made the point that “it’s a counseling case . . . not a protest case”, and that 35 feet was too far to hold a conversation. Justice Kagan seemed to agree when she said to Assistant Attorney General Jennifer Miller, “. . it’s more than a few feet. You know, 35 feet is a ways. It’s from this bench to the end of the court.” At this several in the courtroom started to scratch their heads. According to the visitor’s guide the courtroom measures 82 by 91 feet.

Lyle has the story here.

 

 

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Today’s Sketches

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No single big story at the Supreme Court today. That will come tomorrow when the Court hears the first abortion argument it has considered in several years regarding the buffer zone around clinics in Boston. So tune in tomorrow.

In the meantime here a today’s sketches of one opinion, delivered by Justice Ginsburg, and the two morning arguments (there was a third argument in the afternoon – unusual these days – but I didn’t attend).Justice Ginsburg announced the opinion of the Court that Daimler, the parent company of Mercedes-Benz, could not be sued in California under the Alien Tort Act for crimes committed by its Argentinian subsidiary during that country’s “Dirty War”. I covered the arguments here.

The first argument, Executive Benefits v. Arkinson, about whether the power granted bankruptcy judges violates Article III of the constitution went in one ear and out the other, so you’ll have to read about it here. Same thing with the next argument, Brandt Revocable Trust v. U.S., although I did catch that it might have something to do with “Rails to Trails” and the possibility that someone might ride a bicycle through your house. SCOTUSblog’s Lyle Denniston recaps the argument here.

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Recess Appointments Draws A Crowd (and so do I)

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The Supreme Court chamber was packed today as lawyers argued, in NLRB v. Canning, the Constitution’s Article II clause on recess appointments. White House spokesman, Jay Carney, lately sporting a beard, sat on the same bench , though at different ends,as Senate Minority Leader Mitch McConnell.

At the conclusion of the arguments, as spectators and lawyers exited and the lawyer for the next case to be argued took his place at the lectern Chief Justice Roberts said, “We’re still here”.

Below are a few more sketches from the argument.

You can read about it here.

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