Consumer Law & Policy Blog

If You Wanted to Overrule Citizens United, How Would You Do It?

In light of the Supreme Court's summary reversal yesterday in American Tradition Partnership v. Bullock, demonstrating that the Supreme Court will not be reconsidering its Citizens United decision in the near term, it's interesting to ask: If you wanted to amend the Constitution to overrule Citizens United, how would you do it?

Shortly after the Citizens United ruling in 2010, Public Citizen suggested these two possibilites:

The freedoms of speech and the press, and the right to assemble peaceably and to petition the Government for the redress of grievances, as protected by this Constitution, shall not encompass the speech, association, or other activities of any corporation or other artificial entity created for business purposes, except for a corporation or entity whose business is the publication or broadcasting of information, when such corporation or entity is engaged in that business. A corporation or other artificial entity created for business purposes includes a corporation or entity that, although not itself engaged in business pursuits, receives the majority of its funding from other corporations or artificial entities created for business purposes.

or

Congress and the States may make laws imposing reasonable restrictions on the speech and association of corporations and other artificial entities created for business purposes. This article shall not authorize restrictions not otherwise permissible on the freedom of speech or of the press enjoyed by a corporation or entity whose business is the publication or broadcasting of information, when such corporation or entity is engaged in that business. A corporation or other artificial entity created for business purposes includes a corporation or entity that, although not itself engaged in business pursuits, receives the majority of its funding from other corporations or artificial entities created for business purposes. 

And, as we explained recently (here and here), Prof. Laurence Tribe has proposed this:

Nothing in this Constitution shall be construed to forbid Congress or the states from imposing content-neutral limitations on private campaign contributions or independent political campaign expenditures. Nor shall this Constitution prevent Congress or the states from enacting systems of public campaign financing, including those designed to restrict the influence of private wealth by offsetting campaign spending or independent expenditures with increased public funding.

These are two different approaches. The Public Citizen approach seeks to authorize limitations on corporate speech generally (with exceptions for speech by the press even if corporate), while Prof. Tribe's proposal concerns campaign financing specifically.

The Recorder: Theft of Lawyers' Identities Leads to Debt Collection Scams, Problems for Lawyers and Consumers

Here.  An excerpt:

A common scheme involves debt collection. Someone using the name of a lawyer will call or send letters to victims warning them to pay up or face criminal charges. There may or may not be a real debt. But some recipients will pay without questioning. Others get angry and track down the "attorney's" name on the bar's website. That's often the first time a lawyer learns someone has swiped his or her identity.

* * *

But the bar has no authority over non-lawyers. And warnings to scam artists usually just lead to the suspect disappearing for awhile only to pop up later with a new name and scheme, said [senior trial counsel in the California State Bar's office of intake] Horton-Billard.

(hat tip: Arundhati Satkalmi)

The Montana Supreme Court's Campaign Finance Decision Nixed by U.S. Supreme Court

The Montana Supreme Court's campaign finance decision upholding a restriction on corporate electoral giving has been summarily reversed by the Supreme Court, 5 to 4, presumably on the strength of Citizens United. More later.

UPDATE: The decision is here. Justice Breyer's dissent ends with this note, which indicates that the votes are not now there to reconsider Citizens United:

Were the matter up to me, I would vote to grant thepetition for certiorari in order to reconsider Citizens United or, at least, its application in this case. But given the Court’s per curiam disposition, I do not see a significant possibility of reconsideration. Consequently, I vote instead to deny the petition.

What Happens When the Number of Law School Applications Drop Precipitously?

The consumers of legal education get the upper hand, that's what. Read about it in this article by Karen Sloan. Here's a taste:

It's not unheard of for a law school facing a bloated incoming class to offer scholarship money to students on condition that they defer for a year. But Thomas Rozinski, a prelaw adviser at Touro College, saw something completely different this year when a student with a middling score on the Law School Admission Test sought to defer her enrollment at a second-tier law school for personal reasons. "They offered her $25,000 a year if she would come this year. That's $75,000," said Rozinski ... "She was at the bottom of their range" for LSAT scores and undergraduate grade-point averages. "Quite frankly, I was surprised she got in at all."

Still More on Lawsuit Challenging CFPB's Constitutionality

We told you here and here about the recently filed lawsuit challenging the constitutionality of the Consumer Financial Protection Bureau. What I did not realize is that, among other things, the suit challenges the constitutionality of President Obama's recess appointment of Richard Cordray as the CFPB's Director. See paragraphs 78 to 86 of the complaint. An LA Time's story discusses the recess appointment challenge.

Airport Scanners Not Dangerous, Study Finds

According to this story, "[f]ull-body scanners used for security screening at the nation's airports do not expose passengers to dangerous levels of radiation, according to a new independent analysis of the devices. The study ... concluded that radiation from so-called backscatter scanners passes beyond a passenger's skin to reach 29 organs — including the heart and brain. But the radiation levels are considerably lower than those of other X-ray procedures such as mammograms, the study said." The study is soon to be published in Medical Physics.

Did Members of Congress Trade on Inside Information Obtained from Administration Officials Before and During the 2008 Financial Meltdown?

Read this Washington Post article about how members of Congress moved their personal financial assets on the eve of and during the 2008 financial crisis after talking to key Executive Branch officials. Here's an excerpt from the beginning of the article:

On Jan. 23, [2008], [then-House Minority Leader, now Speaker of the House, Rep. John] Boehner (R-Ohio) met [then-Treasury Secretary Henry] Paulson for breakfast. Boehner would later report the rearrangement of a portion of his own financial portfolio made on that same day. He sold between $50,000 and $100,000 from a more aggressive mutual fund and moved money into a safer investment.The next day, the White House unveiled the stimulus package. Boehner is one of 34 members of Congress who took steps to recast their financial portfolios during the financial crisis after phone calls or meetings with Paulson; his successor, Timothy F. Geithner; or Federal Reserve Chairman Ben S. Bernanke, according to a Washington Post examination of appointment calendars and congressional disclosure forms. The lawmakers, many of whom held leadership positions and committee chairmanships in the House and Senate, changed portions of their portfolios a total of 166 times within two business days of speaking or meeting with the administration officials. The party affiliation of the lawmakers was about evenly divided between Democrats and Republicans, 19 to 15

What is Governor Romney's Position on Mandatory Predispute Arbitration Clauses?

by Jeff Sovern

That's the question I put to my research assistant.  He couldn't find an answer.  As far as he could tell from checking media reports and the governor's web site, Governor Romney has not spoken out on arbitration clauses in consumer contracts, the Concepcion case, etc.  Governor Romney has criticized the Dodd-Frank Act, which outlaws arbitration clauses in mortgage loans and calls for a CFPB study on arbitration clauses, but his criticism of the statute has been in general terms and given the scope of that statute, it is difficult to be certain that general opposition to the law means that he opposes the specific provisions on arbitration. Can anyone point me to comments by the governor on arbitration clauses in consumer contracts that my research assistant might have overlooked?  I inquired of the governor's campaign about ten days ago but haven't heard back.

If, as I believe, Governor Romney has not taken a position on mandatory predispute arbitration clauses, that would be a telling statement about public awareness of the issue.  My guess is that presidential candidates are forced to take positions on most issues of federal law (and many that are not federal, though this one is) that reach a certain threshhold of public concern; if the governor has not said anything about arbitration, that suggests that people are just not very aware of the arbitration issue, despite coverage by the media and the recent Supreme Court cases.  That view is supported by something I learned from listening to the audio version of The Occupy Handbook, editd by Janet Byrne, which consists of dozens of essays by leading journalists and academics, among others, including Paul Krugman, Robin Wells, Michael Lewis, Robert Reich, Amy Goodman, Barbara Ehrenreich, Gillian Tett, Scott Turow, Bethany McLean, Brandon Adams, and Tyler Cowen.  It includes a lot of economics and politics, and some discussion of consumer issues--chiefly, relief for homeowners who are underwater or in foreclosure--but I didn't notice any references to arbitration (though class actions were mentioned briefly).  The conclusion I come to is that arbitration is still well under the public's radar .

Texas Supreme Court Grapples with Calculating Attorney's Fees in Employment Discrimination Cases

Today, in El Apple I, Ltd. v. Olivas, the Texas Supreme Court held that, just as in federal Title VII employment discrimination cases, attorneys seeking fees under the Texas Commission on Human Rights Act's (TCHRA's) fee-shifting provision must submit itemized and detailed records of time spent on various tasks to get a fee award, which is calculated by the lodestar method. This is not particularly surprising since the TCHRA is meant to be identical to Title VII, and federal courts have long required attorneys to submit detailed and contemporaneously kept time records to justify fee awards under Title VII and other federal fee-shifting statutes.This also accords with the policy behind lodestar calculations: Since fee awards are supposed to reflect what you would have been paid in the private market, your records should be kept in at least as much detail as if you were billing your client. 

What is surprising is that, before today, Texas law did not require attorneys to submit detailed time records to justify lodestar-calculated fee awards---attorneys could just submit affidavits estimating the total number of hours they worked on things like "trial" or "discovery." As such, the Court remanded to allow the attorneys to beef up their fee application.

Justice Hecht, joined by two other justices, wrote a concurring opinion in which he contended that the plaintiff's lawyers' purported amount of time spent on the case was patently unreasonable, detailed records or no.

Chamber of Commerce Batting One Thousand at the Supreme Court this Term

That's what the Constitutional Accountability Center has just reported. The Chamber's increasing success rate during periods of "court personnel stability" in the eras of Burger, Rehnquist, and Roberts Courts is depicted in the Center's chart pictured below:

Here's an excerpt from the The Huffington Post's summary of the Center's report:

The U.S. Chamber of Commerce is undefeated at the Supreme Court this term, continuing to improve its success in securing business-friendly judgments since Chief Justice John Roberts took the bench in 2005. The Constitutional Accountability Center, a left-leaning think tank and law firm, reported its findings on Thursday, noting that this term, which began in October and will likely conclude by the end of June, could be the chamber's "first 'perfect' term before the Supreme Court since at least 1994."