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Antitrust Law And The NFL

Disclosure: I represent and have represented clients involved in antitrust matters, both as plaintiffs and defendants.

The National Football League and the NFL Players Association failed to reach agreement on a new collective bargaining agreement last week. This failure has led to a number of actions. First, prior to the expiration of the then existing collective bargaining agreement, the NFLPA decertified as a union. Second, the NFL has locked out the players (meaning that they are refusing to hire or continue the employment of the players.) Third, NFL stars Peyton Manning, Tom Brady and Drew Brees, among others, have filed an antitrust suit (PDF) against the NFL. Lester Munson provides a good (though NFLPA friendly) recap. To understand how all of this happened, it is important to revisit how they got here. On the flip, I'll review some of the issues, and give my view of where this might go.

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FL Supreme Court Rules Against HSR Proponents

Here's the ruling (PDF):

Based on the limited record before the Court and a review of the federal and state law relied on by the parties, the Court has determined that the petitioners have not clearly demonstrated entitlement to quo warranto, mandamus, or any other relief. Accordingly, the emergency petition is hereby denied.

The reasoning is not explained, but my view is that the Petitioners' failure to explain and argue what Scott needed to do NOW (i.e. - the ministerial act of signing the agreement with the federal DOT as required by Florida law), as opposed to what he might need to do later, was fatal to their Petition. Perhaps a better argument would have yielded the same result, but now we will never know.

Speaking for me only

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Oral Argument Before FL Supreme Court On Gov. Scott's Refusal To Accept Federal HSR Money

You can watch it here.

My personal view is that the main argument that the HSR proponents should have forwarded - that the Governor's acceptance of the federal funds for the HSR project was ministerial in nature(the signing of the agreement with the federal DOT) and that Governor Scott had no discretion to refuse to sign the agreement as Florida law required him to do so - was lost in the mire.

Instead the argument was bogged down on the question of whether subsequent Florida legislative appropriation were subject to the Governor's approval (it is of course, by veto or line time veto, subject to being overridden by the legislature.)

The question the HSR proponents should have focused on was what Governor Scott needs to NOW to accept the federal funding, as opposed to what Governor Scott may choose to do in the future (veto appropriations for the HSR project.)

Not the best oral argument I've seen. As I count the votes for the actual relief the HSR proponents seek, I do not think the votes are there. Chief Justice Cannady and Justice Lewis are votes for denying relief. Perry and Quince are likely to vote for some form of relief. Justice Pariente probably wants to vote for some form of relief, but is struggling to see how she can do it. Justices Polston and LaBarga did not appear to indicate any particular view on the issue.

Speaking for me only

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FL Supreme Court To Hear Arguments Today On Compelling Rick Scott To Take The Money

On March 1, 2011, two Florida legislators filed the promised suit challenging Florida Governor Rick Scott's purported rejection of $2.4 billion of federal high speed rail funds. The petition is here (PDF).

The principal arguments are that (1) the Legislature has already appropriated the funds through legislation passed prior to Scott's ascension to the governorship and thus Scott has nothing to say on the matter except in a routine ministerial capacity and (2) Scott's failure to carry out laws duly enacted by the Legislature violate his duty to take care that the laws of the state are faithfully executed.

The Supreme Court immediately order Scott to respond and he has done so. Scott's response is here (PDF). The Petitioners replied to Scott's response. The reply is here (PDF) Argument before the Supreme Court is scheduled for today at 3:00 pm. The hearing may be viewable here (specifically here.) An analysis of the filings is provided below the fold.

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Citizens United And Political Solidarity Strikes

Jay Ackroyd writes:

I think some people need to be reminded that many tactics in support of the public workers unions in Wisconsin are illegal under the Taft-Hartley Act:

The Taft–Hartley Act prohibited jurisdictional strikes, wildcat strikes, solidarity or political strikes, secondary boycotts, secondary or "common situs" picketing, closed shops, and monetary donations by unions to federal political campaigns.

In Citizens United, the Supreme Court implicitly struck down the Taft-Hartley Act's prohibitions against certain political expenditures. Would the logic of Citizens United extend to Taft-Hartley's prohibition against political solidarity strikes? The Citizens United court wrote:

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Can Rick Scott Be Compelled To Greenlight Florida's HSR Project?

Orlando Sentinel:

The high-speed train between Orlando and Tampa got an unexpected one-week reprieve Friday, just hours after Gov. Rick Scott again rejected $2.4 billion in federal money for the project. The sudden shift may have been triggered by a possible lawsuit against Scott contending he has overstepped his authority by killing the train. The suit, which could be filed as soon as Monday, is expected to argue that a law passed by the Legislature during a special session in 2009 compels Scott to pursue the train. Two sources close to the situation said the suit likely would be filed with the state Supreme Court in Tallahassee. It was unclear who would sign on to it.

(Emphasis supplied.) Can the Florida Supreme Court compel Rick Scott to greenlight Florida's HSR project? Let's explore this issue on the flip.

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Winklevoss Twins Still Chasing Zuckerberg

The LA Times reports on the status of the Winklevoss twins' latest lawsuit against Facebook founder Mark Zuckerberg. They are suing to undo the settlement they reached in 2008, reportedly worth $160 million to the twins, in money and Facebook stock. The case is pending in the 9th Circuit Court of Appeals.

The Winklevosses won't say exactly how much they would seek in their high-stakes grudge fest with the billionaire Facebook founder, but by their own calculations they argue they should have received four times the number of Facebook shares. That would make any new settlement worth more than $600 million based on a recent valuation of Facebook at more than $50 billion.

The Winkelvoss brothers also sued their lawyers who represented them in the original lawsuit. The case was resolved by arbitration, and they were ordered to pay their lawyers the 20% contingency the fee agreement called for. [More...]

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Gibbons v. Ogden

Scott Lemeiux finds this "dramatization" of Gibbons v. Ogden:

What is this [Commerce] power? It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.

Later, a dramatization of McCulloch v. Maryland.

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Stare Decisis

Discussing Judge Vinson's ruling on the health bill, Orin Kerr writes:

If you are an originalist, [. . . i]f you’re a libertarian [Judge Vinson's ruling] is [. . .] very appealing [. . .]. But there’s a technical problem here that I want to draw out: Judge Vinson is only a District Court judge. Under the principle of vertical stare decisis, he is bound by Supreme Court precedent. See, e.g, Winslow v. F.E.R.C., 587 F.3d 1133. 1135 (D.C. Cir. 2009) (Kavanaugh, J.) (“Vertical stare decisis — both in letter and in spirit — is a critical aspect of our hierarchical Judiciary headed by ‘one supreme Court.’”) (citing U.S. Const. art. III, § 1). [. . . T]he judge has to apply the doctrine established by the Supreme Court and has to ignore the original meaning.

[. . . Y]ou have to confront the doctrinal test that the U.S. Supreme Court offered in a majority opinion just a few months ago in United States v. Comstock:

[I]n determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.

[W]hen the Supreme Court says that this is what “we look to see” when determining if a power falls within the Constitution, then that is a doctrinal test to which a trial judge is bound under the principle of stare decisis.

More . . .

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The Politics of "Judicial Activism"

Atrios writes:

I'm Not Sure What Judicial Activism Is

Even when their side does "it," I still think it's a very poor term which most of the time means "rulings I don't like." There are judges who are more or less deferential to the other branches, and there are judges who are total hacks who will contradict themselves across rulings, or make absurdly stupid arguments, in order to achieve whatever political/policy ends they want to achieve, but "judicial activism" is a bad frame which suggests that it's somehow illegitimate for the judiciary to act. Call out the hacks for being what they are, but don't call them "activists."

(Emphasis supplied.) I'm sympathetic intellectually to Atrios' point. but the context of the historic use of the term "judicial activist" as a pejorative, which arose in response to the Warren Court's series of decisions on individual liberty, makes the phrase a potent political weapon for progressives attempting to hold back the attempted radical conservative judicial counterrevolution. It would be naive for progressives to discard it now. More . . .

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FL Federal Judge Rules Individual Mandate Unconstitutional, Strikes Down Health Bill

Finding the individual mandate unconstitutional and not severable from the health bill, a Florida federal judge has struck down the health bill. The Opinion (PDF):

The threshold question that must be addressed is whether activity is required before Congress can exercise its power under the Commerce Clause. [. . .] It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. [. . . T]he individual mandate regulates inactivity.

But what of the Necessary and Proper Clause? The judge has the chutzpah to cite McCulloch v. Maryland:

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Kucinich Settles Olive Pit Lawsuit

Rep. Dennis Kucinich has settled his lawsuit over biting into an olive pit in a sandwich at a federal cafteria, breaking his tooth and requiring multiple dental procedures. While the amount is confidential, he says it covers his out-of-pocket expenses.

"I feel that the defendants have responded fairly and reasonably," Kucinich said. "I don't want to have to make another dental visit for a very long time and will be making no further comment on this matter."

After filing the lawsuit, Kucinich released the following details: [More...]

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What Is Monopoly Power?

Matt Yglesias writes:

Apple doesn’t have “monopoly power” (its market share isn’t even that big) in the markets for laptops or smart phones. What Apple has is intellectual property—operating systems.

The definition of "relevant market" is crucial here. In a good comment thread, the issue is fleshed out a bit. It's complicated though. A lot of my work involves this issue so I'm not going to write about it here. I will point you to this related development from the past few years - the Bush DOJ's policy on Sherman Act Section 2 enforcement (PDF) and the Obama DOJ's withdrawal of the policy. Now talk amongst yourselves about it.

Speaking (or not, as the case may be) for me only

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Justice For Some, Again

The Fed takes care of banks:

[B]anks have never acted as if they bear responsibility for the mortgage mess. They have pursued foreclosures in violation of borrowers’ rights to due process, as revealed by the recent robo-signing scandal. And, despite having been bailed out for their mistakes, they have pursued their self-interest, not the public interest, when it comes to modifying bad loans. They have resisted reducing principal balances for troubled borrowers, for instance, because that could force them to take losses they would rather delay.

Now, despite mounting evidence of borrower mistreatment, the Federal Reserve has proposed a rule that would disable the most effective legal tool that borrowers have to fight foreclosures. [. . .] Citing concern over banks’ compliance costs, [the Fed] would require a borrower to pay off the remaining principal before the lender gives up its security interest. That would be clearly impossible for troubled borrowers. So the Fed’s proposal would benefit the creditor who violated the law rather than the borrower, paving the way for foreclosures that otherwise could be avoided.

The Fed failed to protect consumers before the financial crisis, and is failing again. [. . .]

The entire government has failed consumers and is still failing. This is not new.

Speaking for me only

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Justice For Some

Glenn Greenwald's new book shows promise of being his best one yet. The proposed title, part of which I stole for the title of this post, is With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the Powerful. I suspect Glenn will, as he mostly does, concentrate on civil liberty issues but there are indications he will go further:

The book's central theme -- the legal immunity which political and financial elites have bequeathed to themselves even for egregious illegality, contrasted with the merciless system of punishment and coercion imposed on ordinary citizens -- was potently highlighted by two very recent events and necessitated substantial work to include them: (1) the mortgage/foreclosure fraud scandal and the political class's reflexive attempts to immunize the banks from the consequences of wrongdoing [. . .]

Marcy Wheeler (who with David Dayen, is doing a great job on the story), covers the latest:

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