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tv   Key Capitol Hill Hearings  CSPAN  October 6, 2015 2:00am-4:01am EDT

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kind of question. and what's great about it is we have that type of relationship with the teachers. our teachers give 14.5% contribution rate. they love the retirement plan. they want to make sure what they're doing is preseotected. so that's part of our education process, to educate our staff, to let them know if they received any calls regarding this, to one, inform them of the problems that could result from it such as we've seen earlier today. >> right, with dr. kroot. mr. rossman, these remind me of life settlements or payday loans in a sense who allow a consumer who is desperate and feels pressure and needs cash in exchange for promises of something that would happen in the future. these industries are regulated in some capacity, although there's a certain, certainly a concern with both products. but there's a market out there for people who need a large sum
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of money. do you think pension advances should be regulated like those products for people who really need the money? some sort of interest rate cap? i mean, are we making a mistake by outlawing these as opposed to just making them behave like moral human beings? >> that would be a good start. i think that the, first of all, you have to distinguish between the payday lenders and the other products, prid tory products out there. what is unique about these pension advance companies, and it was a great surprise to us was that they are much smaller in size. many of the other predatory lenders are now, you know, publicly-held companies, and it these were pretty much dimly capitalized corporations that had no skin in the game. what we found out with each of these entities was that they only loaned out what they were able to get in from investors. so the individuals who were
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running the show. >> it was like a bookie, just take being the big. >> just taking the big. >> i don't know how i knew that word. i just want to say for the record. i want to put that on the record. i don't know where that came from. >> but i come from boston, so i know exactly what you mean. >> and i don't. i come from maine. >> and i think that the other thing that is significant is that most predatory loans we see out there are in the $5,000 to $10,000 range. as i think mr. lord said and we found in our reports, we were seeing averages of $45,000 to $50,000 and upwards over $100,000, which is a much bigger sum. look, we understand that individuals run into difficult times financially, like the doctor was testifying. there are certainly each, in my case, in the military, each of the branches of the military have relief funds to help people in cases of emergency. there's also the possibility to use the guaranteed stream of income in order to secure a loan
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from a more responsible and regulated source. so you could go to a credit organization or a savings and loan to be able to take up a loan and then secure it. the key here, though, is that you are controlling your funding. and that is not the cation with these companies. you literally lose control over your pension, over that time. and i thought the doctor was absolutely correct. we have the same situation, that if in fact you tried any way to get yourself out of the transaction, you were penalized with a two-year addition. that is two years, in their case, of almost $3,000. so you're looking at a $25,000 penalty. it's outrageous, unconscionable. it is a shark practice that really cannot be tolerated. so i don't know that regulating that makes a great deal of sense. i think that providing other alternative products are important. last thing i wanted to add on this, senator is the fact that we're dealing here with an internet product now. >> right.
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>> it's very different than when we started this in 2003. and you saying that they are going from arkansas to texas, half the time you have no idea where this company is located. >> just an ip address. >> exactly. >> thank you very much. >> senator tillis. >> thank you, madam chair. i made a personal note to go on the internet and look up what a "big", is. >> oh, come on. >> i don't believe you. >> dr. kroot, am i pronouncing that properly? >> yes, you are, senator. >> first of all, thank you for your service in the navy, and thank you for your continued service for our veterans. i wanted to get to the -- you were required to take out a life insurance policy, i think for $180,000. this is after you've agreed to pay about $230,000 back for $91,000 loan. what is the nature of the requirement that you have now in terms of keeping that life insurance policy current?
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i mean, are they paying it at this point? and you have to keep it? i need to understand a little bit about that ongoing obligation. >> we paid for this, and it was paid up. and when we -- >> it was a term life insurance in the term ends in october. we were unable to stop paying it until the end of the term, because we needed permission from structured to stop paying it. >> thank you. and i'm sorry for what you went through. ms. wolf, i have a question for you. the operation in arkansas, it sounds like this, i think it's fair to call him a thief. he would originate some of these loans and sell them? i'm trying to get a sense of his business operation. it sounds like i would do a loan for dr. kroot, identify people who would buy the product that
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he has sold, did he continue to service these loans? did he have a business operation? or did he wash his hands of it after he transferred it or distributed it? >> originally, well, pretty much he washed his hands of it. what would happen is the company would, through an agent say, in p florida would find someone who wanted to sell their pension for a lump sum. so this person in florida, usually a military veteran put the amount that they were looking to sell it for and the amount of money they were looking and the amount of money they got each month for their pension. voyager would package these and put a purchase price on them, unbeknownst to the pensioner, and through another network of agents would find a buyer who was willing to pay that amount of money for, say, $1,000 a month for six years coming in. but voyager would facilitate all the paperwork between the
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parties and kind of stay out of it. they would facilitate everything. >> but who, i was trying to get a sense of who's doing the servicing of the loan? because there's still that process of, i guess, processing the pension paints, providing some disbursement back to the person who provided the loan. so i was trying to get a better understanding of the business enterprise that existing for the life of the loan. >> voyager would set up an escrow account for the lump-sum payment and the pensioner set up an escrow account for a certain a time to direct the pension. so there was never actually a loan. they would have the pensioner direct that money into the escrow account for a certain amount of time. and that's where the issue came from, because the pensioners would then turn around and redirect the money back to themselves or have to file for bankruptcy or it get caught up in the bankruptcy. so there was never, the loan to the pensioner would be kiss tribted at the very beginning.
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>> okay. >> mr. rossman or mr. lord, or anyone else who may want to contribute, the law that was passed by vermont, is that a best practice law? is that something that all states should consider? or is there a best practice baseline out there that as we discuss what we may do at the federal level that we should be encouraging our respective states to take up? >> unfortunately, i don't now enough about the vermont, the specifics to comment on other than they do have a law that pertains to this issue. >> the problem, the vermont law is a good law. there's no doubt about that. the problem is that because of the situation of the internet, there, it stops at the state line. states can only do so much to protect their citizens from people coming from outside of the jurisdiction. and i think that the proposal of having a federal system that would guarantee you knuniform i
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across the country would be a good one because there's always going to be a jurisdiction to hide out, so to speak, in order to market their bad wares. >> thank you for the work you're doing, and dr. kroot, thank you for your service to our country. >> thank you. senator warren? >> thank chair collins. i want to thank you for holding this hearing today and thank you to all the witnesses for coming. we really appreciate you coming and telling the story. i know it's hard to do that. but it's very important that we understand what's happening here. i just want to see if i can pull this together so we all kind of get it in one place. so define benefit pensions, the steady guaranteed income stream throughout retirement, we know these pensions are disappearing, and the americans who still have them know they are lucky to have these pensions, but now there's this interconnected industry
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that's targeted to getting their hands on the pensions. so these pension scam companies turn a profit by offering retirees cash in exchange for a fixed amount of the buyer's future pension, as you testified to, plus, of course, interest and fees. and according to a 2014 report from the nonpartisan government accountability office, and also from senator collins, these loans can have pretty shocking fine print, for example effective interest rates over 100%. and, to make sure that they get paid no matter what, these companies require the retirees, often, to buy a separate life insurance policy to cover the loan if the refiery dies and the pension stops. so it is a great deal fort conditions running the pension scam. no risk and 100% plus interest rates on this. so i just want to pull a couple of the pieces apart.
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mr. rossman, you've seen the damage that these predatory pension scams do first hand. and i want to ask about some of the details. who's the typical victim of this kind of scam? >> the typical victim of the scam, you're going to have someone who has a guaranteed stream of income. >> and who does that tend to be? >> you're including in here, you're going to have retired military personnel, disabled military personnel, state, municipal and federal government employees who are covered. and then in our case, we are, those individuals covered by erisa does have protections. >> military, teachers, firefighters. >> exactly. >> all right. now lots of states have consumer protection laws prohibiting loans with the high interest rati rat rates, usury laws.
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so how can this be legal? >> in our case, every single page of the contract was stamped at the bottom of the page that says "this is not a loan." after having done this for 20 years, if it quacks like a loan and waddles like a loan, it's probably a loan. but they went to great lengths in order to avoid having typical contract loan language and discounting that it was a loan. one thing that was interesting and we caught them on was there were a a number of cases early where people tried to discharge in bankruptcy, and we were able to get the bankruptcy records with the same company coming in saying, no, no, no, it's not a loan. it's an assignment. so then we go to california and they say it's not a loan, it's not a signment, now we've got them. >> they say it's not a loan. >> you want to avoid the usury
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statutes. truth and lending. and they want to avoid having it discharged in bankruptcy. >> so they don't want to make the disclosures. they don't want to comply with the laws around loans. so they go to the other side and they say they're not loans, they're assignments. so let me ask that question then. if these are assignments, are they then legal? >> in some cases they are are not. that's where the cloudiness comes. if it is military pay for a retired benefit, for enlisted personnel, you are protected by the military pay act. but if you're unfortunately like the doctor, a commissioned officer, you are not protected. all disabled veterans are covered under the v.a. by anti-signbility. virtually every state and federal employee statute includes provisions for anti-assignment and erisa in many cases prohibit it. >> so, for some people, it is the case that it doesn't matter
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whether it's a loan or an assignment, it's not legal either way. >> that's right. you've got them in the horns of a dilemma. >> for some, assignment is still legal, and this is just a place where the law has not given full protection. okay. so it sounds like we're starting to get some action on this. five years ago, congress passed dodd frank to try to prevent companies from cheating consumers, and as someone mentioned in their testimony, the cfpb has now partnered with the new york department of financial services to file two suits against two of the largest pension scam companies for using these deceptive marketing practices to dupe retirees into borrowing from their pensions, obviously a good first step, but we need to do more. there is no excuse for this. it's time to put a stop to these scams. thank you, madam chair. >> thank you, senator kaine? >> this is sadly eye opening and
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especially the spectre of ads targeting veterans with flag waving and patriotic themes and pictures makes you sick to your stomach. i'm really discouraged at this. a couple of questions i was going to ask. maybe i'll start with ms. wolf. so enter gamber. he had a previous history before getting into this pension advance area. he had permanently lost his license as assurance broker for grossly misleading his customers, according to a committee briefing for this. so i guess he was in a field where there was a regulated environment, and he had engaged in activities that caused him to have his license pulled. but i guess it's an indication that this kind of falls in the cracks, these pension advance, because he could go from a regulated area losing his license to setting something like this up without a license. >> right. >> and is that just the quirks of all the different state laws
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and how this kind of financial product is treated or maybe more often not treated under state law? >> i would think so, but also mr. gamber seems to not really have a conscience and not really care what the laws are. his license was revoked in 2009 from the arkansas insurance department. he was not licensed under our act. but that's not to say that he wasn't selling securities. and so because it was a security under arkansas law, we were able to take action. but i do want to point out, his license was revoked in 2009. he formed bfg in 2010. we took abs against him in 2013 and 2014, and now he's formed a new company. so he's definitely finding ways to skirt the law and finding those gray areas to exploit. >> the gao report is interesting, because i think your study indicated with this bubble chart that the pension transaction are concentrated in
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these two large groups. one was mr. gamber, and we talked about him. and future payments group is run by steven kohn, which led to him being convicted of federal criminal counterfeiting. so you have the two main groups, one run by someone who's lost his license because of misrengss to insurance client, and the other is being run by someone who had been convicted of federal criminal counterfeiting, and those are the two main groups doing this in the country right now. >> unfortunately, you have several unsavory characters operating in these business lines. from a consumer perspective, again, it's very difficult to know who you're dealing with, because that's not revealed on the company website. so, from a disclosure perspective, that's why we raise that as an issue in our report. >> but, again, from a regulatory problem, if you've got folks
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who've been in different sort of financial capacities, and one has been, you know, are suspended, his license because of insurance challenges. and the other's been convicted of federal criminal counterfeiting, but nonetheless, three can do this kind of a business, this suggests that there's sort of like a gap in which they're trying to put their work in a less-regulated area. >> yeah. >> it's amazing that we would have less regulation for these kinds of pension transactions than we would for insurance. i mean, insurance is really important. pensions are really important, too. that would be a gap and something that is notable. i want to take the kroots' testimony, and i really appreciate you coming and sharing the experience, and i often find these hearings are really valuable, because people are willing, thank god, to come share what's been a painful experience, and we can learn from it. thank you for being willing to do that. but they talked about, and i'm going to ask the other witnesses to help me with this question. they talked about the challenge think were dealing with.
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medical bills with a daughter, housing expenses. these are the kinds of things that people run into every day. there are many alternatives better than these kinds of loans. so these generic advisers to seniors or veterans that are confronted with financial needs that they described. got some real legitimate concerns. you see these kind of ads in the paper about maybe, you know, take advantage of this 800 number or get on this website to get help. what are the better alternatives. we're having hearings like this. what other alternatives that folks should explore. we're not talking about a particular circumstance. and mrs. kroot, you want to jump in first. so please. >> yes. one of the things that happened with us and structured, we took this money out to pay the irs. and at the end, when we, the loan was concluded, we were
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given a list of who we could pay and who we couldn't. the irs was not on it. so we paid those other ones, and we had to finally call the irs, which worked with us on a payment plan for the $100,000. >> mm-hm. >> and i would piwish to put on the record, the irs was extremely cooperative in coming up with a payment plan that was not a burden to us. >> senator, one of the things that's important, and we were talking before about why they were treated as loans or assignments. one of the pitches that these companies will make is that because it's not a loan, you don't have to worry about your credit score. many of the people in dire financial straits are because their credit scores have deteriorated to the point that they can't have access to other prime sources of lending. and they say since this is not a
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loan you don't have to worry about your credit score. you have the united states government paying you off and insurance as well. so you're dealing with a community that has difficulties because of their credit scores and are looking for options. if you're dealing with credit cards, for example, work being with the credit card companies or dealing with a non-profit. >> credit counseling. >> to help you work out a plan to be able to pay off is certainly better. you do have this guaranteed stream of income, although you don't want to lose control of it, you still can use it as collateral as part of a good plan to pay off your dits to secure funding but maintaining control and not turning it over to someone else. and, the final area, at least in the military is that the jag corps is upset because there are systems in the military, air force relief, army relief to help with these problems. in the military area, these
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thieves are stealing essentially tax dollars, stealing them from veterans who have served their countries and expect us to take care of the veterans, of course we're not going to abandon them when they don't have the ability to take care of their own needs. there's just no justice in there whatsoever. everyone is being victimized. and these thieves are ripping us all off at the same time. >> and ms. wolf was going to answer for me, too, and i know i'm over time. >> i'll keep this very brief, not necessarily an alternative, but i do want to thank dr. and mrs. kroot for coming forward.
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pension advances and steps to prevent scams. the supreme court's new term began today with a docket that includes cases on labor union rights, affirmative action and abortion. the group of law attorneys recently discussed those cases and others at an event co-hosted by the pacific legal foundation and national review institute. this is an hour and 15 minutes. >> i'm the executive director of the pacific legal foundation's w d.c. center.
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the pacific legal foundation ani national review institute is honored to welcome all of you here today on our hurricane are event coverage.n and to the hundreds of thousands of peoplec- across the country o are tuning in by c-span. we'd also like to thank jones day for this very nice room and the wonderful staff assistance in putting this program together. national review is also ing th supplying theis moderator for f today's event who i'll introduce in a minute but as for plf, our interest in this supreme court n merits veryy brief attention. we will haveb(b as many as eigh petitions pending before the he justices involving cases that we have filed and i think that that is probably the most of any emeo public interest legal organization. we have seven straight wins in the supreme court so we hope to,
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extend that string of victories this term. and finally, sko us the blog has noted that we are probably the o most frequent and influential public interest followers in briefs before the court. now, our panelists will discuss some of the most important casea that the supreme court has on t its docket this year including a couple that they're going to argue themselves, a few that thp supreme court just agreed to hear yesterday, and a few that are on the supreme court's the horizon. because there is nothing more interesting or fascinating thant what they have to say, i'm goinr to ask all of you to take out o your cell phones and silence them right now so that they don't go off with your wonderful ringtones for the c-span audience. oulr k moderator, ramesh ponnur. he's well-known in this audiencr
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and the c-span audience so i can be brief. he's an editor for national review and a visiting fellow for the american enterprise institute. he is a frequent commentator on. many tv shows. and he publishes in just about every prominent newspaper and period call in addition to the those he's paid to write for, ia don't know how he does that, but maybe he can tell us, he's alsoo the author of the party of death, the democrats, the media, the courts and the disregard foi human areform years, he's also been kno a noted leader in the reform conservative movement and he's t also well-known for his writingy on the intersection of court decisions, public policy and the culture. with that,. i turn it over to ramesh. >> thank you, todd. thank you all for braving the elements to be with us today. i think it's going to be a great
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program. i am going to just give you a little bit of a sense of what t we're going to do today. and then, turn it over to these capable lawyers. we're going to hear first from mike carvin, a partner at jonese day. our host. where he focuses on constitutional appellate civil rights and civil litigation against the federal government. he is the lead counsel for petitioners in the teacher's io association may ch may come up.s and has argued numerous cases ic thoue supreme court and in almo every federal appeals court. these cases include the recent constitutional challenge to the affordable care act, and the decisions invalidated board sarbanes-oxley board, monetary relief of the tobacco industry, the plan to adjust the census aned upholding the ban on raciae
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preferences in mike was one of the legal lawyers and argued before the florida supreme court in the 2000 election florida recount controversy. he's also represented state eney governments, financial endment institutions, telecommunications and energy companies and takingt first amendment, civil rights and challenges to federal government actions. what have you all done? [ laughter ]s & conn next we'll be hearing from kannon shanmugan. he's argued 17 cases before the supreme court. in anumber of areas including patent, anti-trust and ed bankruptcy litigation.rity he's argued several of the most significant securities cases as heard by the supreme court in recent years.ile he's also argued a series of high profile criminal cases in the supreme court. he's also argued dozens of ac
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appeals and motions in federal and state courts across the country and is an adjunct professor of law at georgetown university law center teaching e class on supreme court advocacya before joining williams and connolly in 2008 he served as an assistant to the solicitor general in justice department. he clerked on the u.s. court of appeals for the 4th circuit.a last we'll hear from paul smithe a partner at jenner and blk llp chair of the appellate and supreme court practice and h co-chair of theas media and fir amendment and election law and redistricting practices, an argu active supreme court practice for three decades including orae arguments in 16 supreme court cases involving matters ranging from free speech and civil rights to civil procedure. among his important victories have been lawrence v. texas, the landmark gay rights case and brown v. entertainment merchants
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association, establishing the first amendment rights of thosem who produce and sell video games. he's also lead counsel for respondents in harris v. arizona independent redistricting commission. so, with all of that. in >> 'emte going to turn it over r mike to start hearing how our rulers intend to govern us overn the next year. >> well, hopefully it will be a little different than last term. i will discuss freed ricks which i immodestly and without ar prejudice think is the most important case that's been granted so far and i really mean that because it involves the free right speaks of literally tens of thousands of public employees in the case of bud, the supreme court upheld the rights of states and 20 or so dg it require nonmembers of union to pay agency fees, basically the equivalent of union dues even though they have decided not to associate with the union.
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this goes contrary to a basic a premise that you can't be compelled to subsidize or associate with ideological associations with whom you eed disagree. theat interesting part of abouto abood is they agreed with that in large part.compel they agreed you couldn't be compelled to subsidize unions engaging in lobbying or initiatives or political campaigns but they kampbed out this exception for ideological speech germane to collective bargaining and they did so notwithstanding the fact that id the court acknowledging that the speech like lobbying, for example, does involve matters of public concern and big t ideological divides but they nonetheless upheld it pursuit to the analogy to private sector cases. in s recent years, the supreme court has issued two opinions ae that to put it mildly had
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skepticism of the logic underlying aed inbood. we brought a case on behalf of a number of california public schoolteacher who is do not want to pay agency fees and nonmember fees in various school districts in california. an it was an interesting procedurad posture in which we had to the acknowledge that abood basicalle foreclosed the claims that they were trying to advance but we nonetheless wanted the courts to rule against us for the avowed purpose of going to the sprortd to see it could be i give you all that background because the question presented e that the court decided to take at least four members decided to take was should abood be overeventualed in this is very high stakes for this continued enforcement of ideological n subsidization. and there's a second question which is important but not as
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important which is, if they cano continue to collect fees from you, do you have to m affirmatively opt out and say ir don't want them to get my agency fees or do they have -- do you have to affirmatively opt in saying i want the provide them with these fee in that's a second question presented. h the basic issue facing the court, defenders of abood abandoned the rational. they said it's political speechg and nonetheless okay. the current defenders of abodd b saying it's not ideological bene speech. it is about bread and butter e issues like wages and health be filths and pensions and these og people shouldn't be allowed to free ride on the unions because the unions doing all these terrific things for them in int. terms of wages and pensions and health ben filths. we make basically two points. t one is obviously when pensions are basically bankrupting half of the municipalities in the of united states and health ben cr filths, the notion of not
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matters of public concern defies reality. and more augenerally, the notioo that simply because some group o is advocating on one issue you i think that you're free riding on them is like saying i'm free riding on the aba because they're lawyers and i agree with them. i and a whole lot of lawyers t oppose what the aba is advocating and the notion that the government could compel me e to pay them frees is clearly outside the norm and particularly true because the unions are often even on the bread and butter issues harm advocating issues that harm thee younger vamembers, paying pursut to seniority, not allowing evaluations and terminations of teachers keeps in places a rigid structure that frustrates a chemist teacher that wants to work in an inner city school. the final point we make is the t rational is weaker in the collective bargaining context than with lobbying and that's
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because the unions have this unique power to deany you your own vehicle. you can't ride on your own vehicle and you have to free lead o yn thevehihe unions beca the bind you as exclusive representative to what they want. other circumstances, justi doctors could cedisagree with tt ama and theo like. so as i said, four justices have agreed they want to seriously consider whether it should be overturned. i'm never, ever h making a i wu prediction on how a case comes out but that's the backdrop on that case. the second case to like mention to you is fischer 2. probably people remember an issue of texas's affirmative action program that came up twod terms ago. are the nuts and bolts of it are asp follows. they have got this rule in texac to take the top 10% of any public school in texas which in and of itself creates a lot of y diversity in terms of black and hispanic representation on the
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campus. they want toe layerof on top o that a scheme of race of a plus factor in admissions to boost the minority representation.lood even court looked at it two terms a ago. sat on it for seven months and l issued a big pile of nothing opinion basically saying, look,d take this seriously and look atw the facts and the 5th circuit so we won't and back up. i don't know again i'm not goino to make any predictions.rt it would have been a little odd for the court to take the case to affirm the 5th circuit. there's a number of different ways they could fireverse the 5 circuit. didn't they could say you did do the fact finding so take a serious look at that. if they did that, not affect the law on affirmative action. alternatively, justice alito
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replaced justice connor, the ys decider from the michigan cases and uphold a wholist diversity -- i'm trying to look for a neutral word explanation for engaging in racial preferences and there's some view that the court would -- could conceivably overturn that line of cases. my own view is there's a way to essentially overturn the ority michigan cases or to be more precise essentially outlaw for e the vast majority of higher education systems are doing to without overturning either of the michigan cases simply saying, look, if you're going tm argue to us that going -- i'm picking the numbers out of the m air 8% african-american to 10% african-american is really rica important ton- you, you have tot give us some basis for thinking that 10% is critical mass and 8 is not. and you also have to give us some information that there are
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some educational benefits between institutions of 8% black and 10% black. simply putting them to the basid proofs i think would largely th eliminatise affirmative action f the kind rampant in higher e education because there's no evidence that any of this stuff is really about helping educatel blacks and hispanics opposed toe making white liberal institutions feel good about se themselves because they've got some racial balance in their student body. a and in other words, this is alls a lot of rhetoric without any de substance. this whole notion of critical mass and diversity and the like and if you put them to the proo0 to say, prove to me that critical mass is 10% and prove to me that that's better than 8%, i think that would largely invalidate as i say the vast majority of these programs. finally, and in keeping with the jones day infomercial i want this to morph into, the court
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granted another case by my partner yesterday involving rico extraterritoriality and probabln not normal dinner time law conversation for normal people i and has effects on the scope ofa law under rico itself very n important and the scope the exterritorial scope of statutess very quickio terms running out i time, supreme court issued a decision of morris son a few terms ago which basically said this kind of analysis that the second circuit engaging in of exto territorial and a test of . did it have extraterritorial res effects is not the way to go about the analysis. t you needh to read the statute ad see in the statute is there a clear indication that congress intended these restrictions like rico to apply to activity that n occurs abroad? and absence restrictions like re-coe to ises
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apply to abroad. the precise issue in this case is this rather amorephis term. you need to look at the statute and see if the behavior being challenged falls within in. if ricoh terms that led to huge confusion inif lower courts. because some courts said look, if you have a racketeering pattern, in other words, a pattern of bad acts that er happened in the united states, that's enough,oad even if the enterprise was located you had some circuits saying tew exactly the opposite. if the enterprise is in the united states even if the bad acts occurred abroad, we can ce. reach you under ricoh. and they came in and said it's extra territorial in either sense. so they will have a tounts to explain what they meant by the focus of the statute in
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morrison, it will have a profound effect on these ricoh cases but analogous cases where. people are trying to domesticate, have u.s. courts decide issues that are really wholly external to the united states. >> would you like me to comment on my -- first? >> yes. >> explain howe eloquent i was t the time.le >> i don't have a lot of disagreement with what mike has said. let me just offer a couple of comes, and i think that the first few cases he talked about, the friedrichs and fisher cases are probably the most significant cases on the docketo as to friedrichs, since mike isr mott going to offer a prediction, i will. i do think that the writing is on the wall and that the court is very likely to overrule abude in this case, in a case just a couple terms ago, justices kagan
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and alito wrote the opinions one whether abud should be overruled and alito said the reason the court was not overruling abud vg was because it had not been decided, having said that, i will add the disclaimer that i s thought exactly the same thing when the supreme court granted review to consider the validity of fraud on the market ought presumption a few years ago andd everyone thought the court was o going to overrule the case, adopting that presumption for securities fraud cases and yet the court didn't.ence. so i make that prediction with some, but not total, confidence. as to the fisher case, you knowb it's hard to say how significant that case is going to be as a practical matter. precisely because it does unit involve a challenge to a very particular aspect of the university of texas at austin's affirmative action program. it is a hybrid program, and if
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some sense, it's got some distinctive character ickes. i think the things to watch for in the case are going to be ng y first, the extent to which the court says anything about the degree of deference that an institution gets for its definition of its interest in diversity and whether the court suggests that an institution o c really doesn't get very much deference in that regard, and second, the extent to which the court permits or does not permit them to gota beyond quantitativs diversity, the idea that you have to have a critical mass, however that critical mass is defined, and whether a court permits an institution as the o university of texas seems to be doing in this case to find some notion of qualitative diversitye that even within underrepresented minority groups an institution has the able to
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kind of pick and choose what d o typesri of underrepresented to minorities it wants to have, it whether it is okay for the university to say, as it is seemingly saying in this case, that it needs to have more underrepresented minorities from affluent suburban communities as well as minorities from less-affluent rule communities.t i'm skeptical that the court is going to permit the university of texas to go that far.uspect but as litigation has evolved, that has essentially become their stated rationale, so i expect that the court will speak to both of those aspects of affirmative action, even if thet court doesn't really revisited first principles of cases such as gratituder and whether this is permissible at all. >> i just want to add, fisher and friedrich have one thing in common, in which they're cases in which the same issues were teed up, and where it seems fairly evident, although we fie don't have the v insider view, o
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that they just couldn't get five votes to say that abud should be overruled or groouder should be overruled. it was justice kennedy who didn't want to do it, i think it was scalia who didn't want to do it in the labor case a few years ago. since it only takes four votes to grab, was it that they wanted to put it to them again and see if they could pick up a fifth voter? they may not know that. but we certainly won't know it i until much later in the year. it's uncertain to me whether these are going to be the big cases of the term or whether they're going to end up huntingu twice, as they sometimes do. >> thank you. first of all, it's a pleasure to be here, and thank you to the pacific legal institution for having us. i'm probably going to disappoind
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my partners at williams and connelly in that this is not going to be a williams and connelly commercial, i'm talking about cases none of which we ars involved in. i'm going to start with really conceptionally an interesting case, a case called evenwell versus abbott, a case involvingn the one person, one vote of principle. and this is a principle at that the supreme court adopted, lds really in a series of cases culminating in reynolds versus simms in the 1960s, the principle that under the equal protection clause, a state is ri obligated ton equalize the e str population of its voting te is districts in order to ensure at that the strength of a particular voter's vote is not diluted by placing that voter io a larger district. and the question before the purp supreme court and evenwell is how do you define the relevant population for purposes of he applying the one person/one vote
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principle. is the population needs to be equalized. rel the population of eligible voters? or is it the total population of the relevant districts and the argument that is being made by the plaintiff in evenwell is that it is eligible voters.ed to and that the one person/one voto principle really is designed to protect the strength of an individual's vote. and by definition, therefore, you really have to look to t voe people who can in fact participate in the election in order to determine whether the strength of that vote is diluted. the argument on the other side is complicated, and offer a couple of possibilities. the argument the state is makinc is that the state, essentially, has discretion to choose among the various possible alternativi populations, that the one s person/one vote principle is osg
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designed to protect against so-called invidious discrimination and as long as the state is choosing a neutral measure they are not acting invidiously and they have a chance to choose the various options. i think there is an argument that could be made on the other side that the one person/one vote principle is designed to t present a broader representational purpose and therefore you havent to take int account everyone who's being ca represented. but that's isll similarly different argument than the ne state is making in the case.le s i think that they have a better view of the one person one vote, it is about the strength of an individual's vote, but i think the challenge that the plaintiff will have, and this really pits the court's instinct toward ideological purity to the practical instinct. i think the challenge the plaintiff's goingel to have is think it's very hard to measuret
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the number of eligible voters in these districts, particularly on the state level where the districts can be relatively pol small. of course the census measures total population. and the census provides figuresw that are somewhat more readily available. my understandingsi is that thers some back and forth, technically in the i amicus briefs. use but i think the state does do ae good job ins its brief that th is going to be difficult if states are required to use the y eligible voter measure, so i ti think this is a case that may fit the court's intellectual and pragmatic instincts against each other. i'm going to talk very briefly f about the court's business docket. there are three cases on the court's docket that at a very high level of generality involve class action litigation which
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has been a focus for the supreme court in recent year the and a e high level ofpt generality. they all deal with the concept of injury, and the concept of what to do in cases where either some or all of the participants in a class action may not have m suffered actuaosl injury and hoi to kind of proceed in those circumstances. probably the most significant of the three cases is a case calleo tyson foods versus buafaccio. it is a case where various re employees at a pork tyson plant are seeking accommodation for the time donning protective ke a clothing. it's how to proceed when those individuals are all differently
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situated, when they may have w taken a different amount of time to put on and take off the gear and where they may have been differently compensated. and the question is basically whether a class action plaintiff and his or her lawyers can use u statisticaltl modeling to essentially ally the difficulties with proving the fact that injury in the amount ofwo damages on an individualiz basis. anf issue that would otherwise e swamp the so-called common f issues of law that would permit a class action to proceed in th first place. and so there are a variety of interesting issues in the case,e and i won't descend to an excessive level of detail given the time, but i'm happy to get discuss the case in greater and detail when we get into questions and answers. the other two cases before the court are, in this area, are a s case called spokeo versus robbins, which involves the question of whether a plaintiffn can proceed with an action for
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statutory damages when the plaintiff may in fact not have suffered an actual injury.ent this is a case involving a statt plaintiff who is claiming statutory damages under the fair credit reporting act against lly spokeo, which is a company that puts information on the internet about virtually every person in the country. spokeo had allegedly put information on the internet about this person that had inflated this individual's ed casual qualifications and while that may go to the individual'sn benefit, they soughtti statutor damages in the amount of $1,000m for this. and while $1,000 may not seem like vetch, when you're talking about a class of potentially millions of plaintiffs that adds up to t real money.ave so the question is whether that3 plaintiff has injury for by purposes of t article iii of th constitution, simply i have virt u of the fact that there are
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statutory damages. and that takes me to campbell ewol versus gomez, they are seeking damages under another statute that provides for statutory damages for unsolicited text messages, erson whether or not are you pleased to receiveht them. and the individual sought, i believe, $500 in statutory we wl damages under the relevant statute. and the defendant turned around and said we'll pay you $1503.n i'm not quite sure where the 3 came from, in order to go away, to settle your claim. tur and the defendant then turned around and said, if you turn down this offer, it will essentially moot your claim, and the plaintiff did turn down thef offer. and the defendant said your case is moot, because we've offered you absolutely everything that you are seeking in the case.ould and the plaintiff argued, well,m i nevertheless ought to be abl po proceed not least because i'd seeking to proceed on behalf of
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a and the question is whether you can do that. so again, all cases involving mc various aspects of the class n action mechanism, and i'd say ow that a bare majority of the supreme court has been reining n in class actions. but given the fact that there are multiple grounds for disposition i think is open to question. i t very cunningly have left tho last case involving the pacifich legal foundation ont the though. that that might allow my to go s over my time, though i'll try not this is one of the cases to begn which toddin alluded at the beginning, i believe. it's actually two cases involving the clean water act. a case called hawks where they're representing hawks in, the defendant in the case or really the plaintiff, but the potential defendant, i suppose, in a case called kent recyclinr,
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and they present theek issue ofa whether when an entity seeks a jurisdictional opinion from the army corps of engineers on whether a piece of property encompasses waters of the united states and is therefore subject to the clean water act, whether the army's opinion on that is subject to immediate review because it results in agency ih action. the court had actually denied the petition for review filed by plf in the recycling case. and then the eighth circuit issued a decision. and plf very wisely filed a petition for srehearing.befo and while thesere petitions ra rarely granted, the supreme court has before it that ed sta petition forte rehearing as wel as a petition for review by the united states government in the hawks case where the government lost. and so it will be interesting ts
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see which of those cases the court takes. i think it's almost inevitable w that the court will take at hon least one of them if not both. a and we supreme court nerds are hoping that the court will granh the petition for erehearing, because that will allow us to convince our clients that they should file petitions for rehearing. >> we also would like to persuade clients not to file.lid because they would like to file. this is a case about whether ega equalized population of eligible voters in drawing state legislative i think the concept that it would be good to have districts be the same size both in terms of the totald number represente and the totalch people voting. there's a choice between equal representation and voting power. the candidate said that the original decisions from the
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1960s support more voting powera every district map since the to 1960s has used total population, not citizen voting age or low. registered voters. i think that the odds that the court's going to mandates that you use some other measure is very low. but fairly likely to say that te it's permissible to try to do i some other way other than population. but the problem they're going to run into is one that ken quickly alluded a few data isn't there.olds the census doesn't collect citizenship information from more than a few households. not the usual census. so the error rates to try to use that data would be massive. and i think would be subject to the argument that you're not t. really equalizing pop haitian because you simply don't have good enough data. if you try to use registered ple voters as the data, they are famously erroneous. d they may not be alive.t you have the problem of wi
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manipulation and purges. at the end of the day we'll end up with a lot of discussion in political science, it will be is t studies of total population.l >> i disagree with the basic alw premise. i do think thesehay cases are at equal voting rights. i think equal representation is not really what they're talking about. so the petitioners have an intuitive argument, which is, look, if you're trying to gible levelize voters, let's look at t voters. i mean, these border districts in texas that year' talking t about greatly overvalue the votes of the people in those districts relative to the rest of texas, because of the large citizenship gap in those districts that many of the total population just can't possibly t vote. that said, i do think there's on serious logistical issues about trying to switch to citizens , h
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voting age population. i'm told it can be done. o will smith tells me cit can't b. done. this is the last time you will hear this sentence out of my mouth. i think i agree with paul on this issue. >> 100,000 people heard you sayl that. >> for all d the reasons that ik paul's already touched on. hyb i think it would be a very difficult task to try to come up with it. i think some kind of hybrid opinion that says if can you do it, you can substantiate it. if you can't do it, you don't tu have to.te the notion that you substitute in a new kind of handcuffs on state legislatures in this area, i think would be consistent with the ideological views and the pragmatic views, so i would sot suspect what you might get outh of this case is something like you can do it if you sew us it will work, just like this hawaii
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case, birds v richardson, you can use registered voters. >> paul, if you want to bring r some other cases to our attention? >> i have four cases i'll try tc motor through. first one is a case granted yesterday called heifernen. there's a detective. going there was a hot mayoral election going on. whi this detective was staying completely neutral in the mayor's race, which apparently is a good idea if you're in the patterson police department. but his bedridden mother was s supporting the challenger, and the lawn sign is stolen, so she asks her son it go pick up a sign and bring it back. he is spotted by the incumbent mayor's agents while he's inc
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picking up the sign. they tell the police chief, and he's demoted to a lower at that time us. he sues under the first amendment saying he's been demoted because of his political opinions. if you're punished as a public employee for your perceived political affiliations, it turns out you don't have an affiliation and you didn't, you were simply helping out your bedridden mother, there is no y first amendment violation. if you didn't actually exercisee your first amendment rights by m joining upen with this campaign then there's nothing that is iss protected by the first amendment that is punished. and this is a decision which, not surprisingly is in conflict with the rules applied in otheri circuits which take the quite sensible position that if they o set ouurt to punish you because
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your politics and it turns out they were mistaken about your politics, your affiliations, ite is still a violation. they should have to put you back in your job.know. and i think it's fairly likely that's where they'll end up. perhaps not. you never the second case is a case i'm arguing in december. it is another one person/one e. vote redistricting case. it's the first time in a long h time we've had two of those cases on the docket. this is the harris case out of arizona. the issue there is not what that population do you use but they used total population. no one's challenging that here h of the question is on whether the tech amounts of deviation in population between the larger districts and the smaller districts in terms of pop haitian were such that there was a violation of the one re person/one vote principle. and the deviations are not that large, less than 10% which lems ordinarily doesn't cause a ument
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constitutional problem. most state legislatures have a deviations of that amount or more. the supreme court has basically said that's not a problem. it's de minimis. but here, the argument is as follows. the ndunderpopulated districts, almost all of them are minority districts, democrat-leaning pubc districts and that the overpopulated districts, nearly all of them are angelo districts and republican-leaning districts. the people who drew th we map, e independent redistricting commission said, ywell, that's because we striving to draw ten effective minority districts because we thought we had to do that to comply with section five of the voting rights act. if we didn't do that we wouldn'e get free clearance from the justice department, which the evidence shows that's really i what they did. the question is, here's what thetial edgers are saying now. they're saying that the voting right justification, even if it's true doesn't work anymore o because shelby county has come e along in the meantime, section
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five of the voting rights act is no longer in effect, and you shouldn't be able to defend these deviations which is have a pattern between the minority districts and the majority districts on a statute that's no longer enforceable. if that argument is accepted, oe thatr meansar there are an awf lot more maps that will be subject to challenge. argument is that's a t sham. it was done for partisan reasons, contrary to findings on the district court. and the, that's an interesting argument in addition to the fact that it defies the ruling of the district court in terms of whati the factss are. the amount of partisanship if ma any is so smal that it's tiny is the maps that have been upheld by the supreme court, cases devi involving really massive ons to gerrymanders. so what you have here is an effort to use these minor
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deviations in population to completely ratchet up the level of scrutiny of partisanship in o theme drawing of district maps the point where you'd have a ms completely double standard. some maps, if they have completely equal population thet can have massive amounts of sibi bias. massive amounts of third deviation, they can't go there. i don't know if the court is going there, but lots of d different possibilities.n fro the next case is a batsen case out of georgia.prosec batsen is the case where the sym court saidat it's unconstitutiol for prosecutors to systematically exclude people from serving on criminal juries based on their race. and that rule's been around a long time, but it has been counr violated much morey. than it's been followed in many courts around the country, and this foster case is an example of it.
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this is a guy who's been on death row since 1987 when he was convicted of capital murder. many of those years the litigation that was trying to free him was focussed on whether or not he was sufficiently nstiu intellectually disabled that he couldn't be constitutionally n executed. that argument was ultimately rejected, but it took a number of years. and then during that time his lawyers got a, used a kind of pc foia request to get access to the prosecutor's notes that were used during the jury selection y process and found a massive number of references to race alo over this thing. they basically identified the k race of the five black jury candidates six different color codesio and listings and rankings. they had a whole discussion of which black they would take if they have to take a black. this would be the best black to take. so it was a pretty egree just that this was race-based
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selection of jurors. all of them were excluded. the prosecutors came in and gave all sorts of other reasons, not neutral reasons why these blacks were excluded.that i some of which were unpersuasive saying this one juror was 34, and that's awfully close in age to the 19-year-old defendant, stuff like is so the challenge was brought to the court, and interestingly, t there's no particular legal issue to be litigated. it's an error correction case. but it raises the issue whether batsen can ever meaningfully be enforced and it's against the w backdrop of the whole new disagreement of the court on the death penalty, which we saw come out in the open in the last day of the term last year in the cts case about lethal injections ana whether or not, you know, deathf penalty has this inherent problem of racial discrimination, both in terms oe who's charged and how they're tried. the brief we filed shows massive amounts of evidence that blacks are excluded from juries in many
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parts of the country, much, much more likely to be excluted than whites, including black the defendants in particular. finally, another new case, the mhn government services case from yesterdayth presents this year's arbitration case.ule the supreme court loves if yo arbitration clauses. the basic rule is in contracts if you agree to arbitrate any n disputes under the federal . arbitration act, those fic agreements pretty much always t have to be enforced. the specific rule is they can sometimes not be enforced, but only under contract law principles that are applied to all contracts. a state can't have any rule of contract law that disfavors arbitration clauses or treats them any different from any other contractual agreement. they can't have a double standard, because it's a matter of federal policy. we generally want these arbitration clauses to be enforced. in this case, california -- this is a lash out at this petition.
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i haven't studied the entire se record since yesterday when thee case was granted. california has a strong favor toward, if one piece of the ther contract is validated everything else should be enforced.ts and t however, the argument is they don't have that policy with regard to arbitration agreements. instead, the rule in california, which the federal courts out there enforced is if a couple pieces of an arbitration rbitra agreement areti held unenforceao because they're unconscionable,t that's evidence that the whole a thing was infected by disparate bargaining power and we're not going to enforce the arbitration agreement all together. so there does seem to be, rules allegedly, a different set of rules applied to arbitration agreements than to all other contracts. i would say this is a case that looks like it's going to be plen headed to our annual slap down of those peopleis not enforcing
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arbitration agreements, which seems to be a regular feature, . what goes on in the supreme tiow court. we'll see that by the end of this term.o say a that's a prediction i will makes >> all right, mike, do you wantn to say anything about those cases? in on the ulatinigh harris case that paul's doing.fw and look, just to make sure we understand what's going on. arizona was underpopulating theb districts with the fewest then citizens. in other words, b it was exacerbating the problem.unde their votes were already worth more, and by overpopulating them, they made them worth thati much more. which is a serious issue, but the truth is, and, again, it will be interesting to see how the conservatives on the court react to this, and i'll probably never be invited back to the rnc after i see it. the 10% thing, total populationt is, by definition, an incrediblf rough proxy for voting power.
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so the court, i thought, was pretty consistent saying, look,u if you get it in the 10%, that'a close enough. all of this is close enough for government work.d but then there was this summary affirmance from a couple years b ago which indicated we'll make s an exception, even though it's a de minimis impact if you have a bad purpose, and the bad purpos was politic.ot and at the same time they're simultaneously saying there's no cognizable gerrymandering out there, not withstanding paul's efforts to the contrary, and they're saying that politics is an affirmative offense to a shai challenge. noersd, if you come in and say i didn't create this black district because of race. i created it because of politics, which is very often the case, because it helps republicans in adjacent districts, that's no good.politi so paul is in the unusual do position of being, arguing that politics had nothing to do with it and race had everything to do with it. i.e. section five had everything to do with it, while litigants
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in shaw cases, including one t h case of mean that they might take are arguingin just the opposite. no, it's all politics and no. race. inhe shelby county argument has any legs they whatsoever. they are going to judge a legislature's interest in terms of the interests that were confronting the legislature when they enacted law. not that they can put it in a e time machine and see that shelby county was going to be reversed. they're take ago very real earac politice. approach to section fe pre-clearance. you can make the argument that they didn't need to underpopulate these districts. that there wouldn't have been retrogression in these districts anyway. but they make the argument or certainly the court below is making the argument.5 look. it's not a case of whether you u actually had to do it to get section five pre-clearance. you needed some cushion, and who knew what the justice department would do with these very dicey
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issues, which, again, is an dir argument that shaw defendantsicd will often make is that we had a tol preserve the district. you can't hold this to literal compliance with section five, because that requires all kinds of presinces about how a very hostile justice department would have reacted to any diminution in minority voting strength. so for all those reasons, i think the polling will prevail. making a prediction. but it's also interesting that they'll be deciding his case at the time they'll be deciding the cvap case as well as the shaw case. >> at the risk of having our viewers switch to another channel, i want to say a word about the arbitration case which paul mentioned, which was just granted yesterday. think this is one of the areas t of the law in which the supreme court and at least some lower m courts are just really at loggerheads. you have these lower courts, obt
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technically state supreme courts that are essentially engaged in this sort of campaign of conscientious objection to the supreme court's recent cases. implementing the federal arbitration act with its very e strong preference for giving force to arbitration agreements. and this case is really the latest in this line of cases, in and technically pernicious caser because they often involve statd supreme courts essentially t contorting principles of state law if order to avoid remitting parties to arbitration. and so i share paul's sense that this case is probably heading for a reversal for precisely that reason. but this is something if you're in private practice in the particular, you will often encounter, it's cases from courts across the country where lower courts are really out of synch with the supreme court.up >> all right, we're going to o take three minutes each, if we could to talk about some of the cases that are ons the horde fof
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the supreme court. so we'll go in the same order, start with mike. >> i tried to find a non-jones day case for this, but i was unsuccessful. i think the case that is clearly didding to go up to the court ce are these mandatory contraception cases where e oba religious organizations arema challenging the obamacare requirement that they have lobb health care that pays for contraception. this is a follow on to the hobbu lobby case that involves an employer that was religion. and the eighth circuit came down and sided with the religious ari employers and yesterday they said you should grant cert in this catise. i think the court is probably t clearly going to take these he cases. i think there's a very strong .
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argument on behalf of the religious institutions' e argument. the federal court's been relatively dismissive in sayings you just need to check a box. but the rae at is, this is an insurance plan that obamacare requires religious institutions to have when they check a box, it will authorize their third party administrator to start using under that insurance plan contraceptives. they claim it comes from a different pot of money, which is an accounting fiction. i'm checking a box. i am the but for cause of something that is adverse to my basic religious tenants. so it's sort of like say, well, gee, why would this religious school complain about having pork served to their students i when the deli owner is the one t paying for the pork, not them. i won't predict how the supreme court will react to that
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imminently sensible and persuasive opinion. the other argument, the sissel case where there's a strong challenge being brought, constitution says all revenue s bills shall originate in the see house.on one of the manifests of any clause of obamacare was, of course, that it was the senate i version, post scott brown, thate got enacted into law. so it was a very sensible challenge saying, look, the revenue bill did not originate in the house, so therefore you need to invalidate this the d.c. circuit took an approach, which is among the stupidest they could have taken which is to say it wasn't done to raise revenue. it is a silly ray way to analyz.
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brett kavanaugh dissented but it is true this is a highly m t technical matter. the senate did initiate obamacare. they took a bill from thend houi that had nothing to do request obamacare, gutted it and then fi put in 1800 pages as a, quote, . amendment. now everyone a knows that's a cg fiction.ho i think judge kavanaugh was, that's been around for a while,l and we're not going to second guess how the two houses deal with each other, even though i think he was simultaneously acknowledging that this would largely gut the requirement, render futile the bill. >> now i feel like i should talk and connelly iams case. abortion is just about the only controversial area that the ourt supreme court hasn't gotten into in the last few years, but i ad think there's a pretty good
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chance that the court will wadee into that area. and it just so happens that they will then be wading into it in an election year. the court has two cases in front of it that are currently sort ot in the briefing process. the court has not decided whether to take either or both.o one from texas and another from. mississippi involving some abo restrictions on abortion providers, the requirement thata abortionve providers have to am comparable facilities, i think certain ambulatory care facilities and also the requirement that . abortion-providing doctors have admitting privileges at a localt hospital. thfe cases kind of came out in g different directions. and you have the state of mississippi seeking review in one case and abortion providersg seeking review in the texas and case. and the mississippi case i is being held for the texas case, e
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and if the court grants review, it will present the question of whether these restrictions constitute reasonable restrictions or whether they go too far uh the supreme court's existing framework set up by the three justice opinion in planned harnts hood versus casey. so i think there is a good chance the court will grant review of those cases. since mike conditions have enough time to complete liis infomercial, i will mention e another case, the mcdonnell case, and also a case called newman, which the supreme court passed on yesterday, but we don't yet know the answer of whether the court's going to grant review. i think these are cases that have the potential to be kind oe the highest profile criminal defense cases on the court's docket on so-called white color issues. the mcdonnell case involves thee prosecution of governor bock mcdonnell, formally the governor of the state of virginia for voe
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public corruption-related offenses. e newman case involves insider trading. and they both in some sense ip involve the same issue, which is how do you define the benef impermissible benefit for purposes of the relevant statutes. what constitutes the quo in the quid pro quo in corruption cases and how much of a benefit does an insider have to receive in order to be criminally liable for insider trading when it is, in fact, someone else who is the individual who trades on the c inside information. i think frankly both of those cases are somewhat closer casesf in terms of the likelihood of s the court granting cert. and we'll know the answer to that od quite soon in the newman case and a little bit further down the road in the mcdonnell case. >> it was quite striking to seeo in the mcdonnell case that the . court stayed the incarceration e of the former governor. i think everyone thought, they are going to take this case. net i'm not sure anybody thought .
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they were going to take that case. i'm going to talk about a ma petition we're filing next week. >> i'm a really bad marketer. >> yeah. you've got to do better.volves for electronic arts.publicit the video game maker.ented this involves a tort called the right of publicity, which was invented in the last half of ths 20th century and has o metastasized. it's a tort claim you can bring if you are a famous person and you are portrayed in a book or video game or movie or a song or work of art. it's unlike defamation where you can say they said something false about nme, it is simply e portrayal of you by name or not by name, by likeness, without permission. and such a claim, obviously, raises complicated first amendment issues, because anybody who writes a biography about martin luther king or
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president obama is showing likenesses without paying them for it. these claims have mounted around the country in recent years, and the circuits and the states, state courts have developed all sorts of incredibly divergent tests for deciding when the first amendment allows them to do it without paying for it and can't. ey the test is in several cases, including in this case in person california. there's a transformative use test, which says you can portrac a famous person for free if you transform them in some way. the examples are if you put a b comic book out, you take a famous singer and portray them d as a worm or r monster.howeve but it's still who the person is. if you portray them y realistically, doing whatever i they do in real life, however tr true that is, it's a violation of the first amendment to do it without getting permission econd first. there are other tests that make more sense to us is the rogers test applied in the second you circuit and elsewhere which says
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you can do it. the truth is a defense unless you're doing something like at v using them in an advertisement or applying them in an first celersement. that's the exception. there are some states that haveo balancing tests and they decide on a case by case basis, whether the values outweigh the celebrity's concern. i think this isd an issue that needs to be decided. it comess up in the context of h video game, the electronic arts among other things puts out the footus madden series of football games, in this case the claim is brought by a bunch of 1970s d professional football players b who appeared in the madden series for a number of years. didn't have their names used but pretty obvious who they were, i guess. at least that's alleged to be the case.e we'll see whether this issue will get to the court. my own view is that the court's going to think that this transformative use idea is ik
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weird.reali to say that transformation, or letting people look less than reality under the first amendment doesn't seem to make a great deal of sense. >> thank you all for those w remarks. i'm just standing up here so the mic can be freed up. and we can get a few questions in, which we have time for. i'm going to ask, after i call on you, for you to wait to get the mic and then also to stand a up and state your question. and i saw that ilya was the first with his hand up.k >> i'my going to ask, ilya the o shapiro from the kato institute. i want to ask about a case that hasn't been granted yet, that's center for politics versus nin harris. that, if they don't take or ifs they affirm the ninth circuit which seemed to overturn the important case of the naacpe
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versus alabama, regarding the freedom of association and not n disclosing your associates or supporters to the state withoutt any good reason.t do any of you have any comment on that? >> since i know nothing about it, i'll offer you an opinion o. it. [ laughter ] >> a good litigator is never ti? intimidated by an absence of fact. i take it this is about the gay marriage? and kind of intimidation? there you go, 0-1.forma >> they litigate on campaign finance, kamala harris wanted information on who supports them. to make it clear if there was ng some ongoing investigation to go after them. >> you have two obviously conflicting lines of supreme court cases. one is buckley, the buckley case that said we really like u anonymity when people are pamphleteering in naacp versus
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alabama. so i think you have a credible element that this is issue ads, i take it, not failed mentioned candidates, vote-for candidates? >> this is raising money.e in >> so they could have an obvious chilling effect on these people. and a candidate, the courts never come to grips with.requir >> and the courts did in citizens united said that t disclosure is constitutional. it is a complicated.t. how to make all the cases fit d together is complicated. >> i agree. and in terms of candidate donations you have a strong argument. we need to know heo. who's givic to this guy so we can police ani quid pro quo corruption. it comes a lot more intimidating when you talk about public . advocacy groups advocating a certain viewpoint.
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>> another question? >> there's been an attempt over the past few terms to find that informational injury cases as created by congress, such as thf one you mentioned don't meet the constitutional measure of standing, and a couple terms a the court took upa a case, heldr onto it for nine months and then kicked it.le i was wondering if you could to talk about whether or not the cases you mentioned could be a vehicle for justices, in particular justice roberts to as test that standing issue.e that >> well, the spokeo case is really about that.the c it's a case that really presentc theo issue, in essence, that thd court seemingly deadlocked on a couple terms ago. and that was the case when they sat on the case for an t inordinant period of time and rd ended up dismissing the case. i tend to think that this is a d very hard case to predict, maybp because we already know that the court is closely divided on it.t
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you know, on the one hand i in think that there's a real appeal to the notion that you've got to have real injury, and that congress can't simply create th injury. you knowte,s on the other hand, there are an awful lot of these and the historical evidence doee not really sort of clearly point in one direction or the other, and i think the respondent in the case has put together a brief that i think pretty ably marshals the evidence to the contrary that there is this longstanding practice of ses o congress essentially creating ai injury for purposes of e litigation. so i think it's a very hard issue to kind of handicap befor the supreme >> i'm interested. the facts are so weird as you point out.le the false facts are complementary to this guy. at least some of them. m mi okay. >> the variety of facts at issue. >> it seems toa me there is a a middle ground where you can say, yeah, you had injury, but you can't always put a dollar amount
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on reputational injury or disclosure of private facts. i may not be able to do and i think the legislature canh just puti a relatively ash ther number i was wondering on your view, does this case fit those kinds of things? >> i think it's hard to say. and, you know, i think this many ways, a part of the difficulty is, i think it's very hard, youu know, to measure how many of the cases under any of the statutes sort of fit that paradigm.dic on thei one hand when you have the junk fact cases, the 99 oute of 100 of those cations, unless you have the lonely grandmother or grandfather sitting by the facti fax machine who you joys receiving them, it's going to be congrewant.uggest
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i don't knee ow that it's decid it for the whole range.he >> i'm with state farm.q given the last terms congressional akque essence, arw there any cases going forward t that could have a significant impact on how we look at urn congressional intent or legislative history?itiati >> it seems like every term, the number of cases involving interpretation of federal six l statutes oasr federal legislati is open to interpretation. there were at least five or six last year where they started moving, as you indicated in a en direction against deference to administrati
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administrative deference. i would be surprised if we don't see that pattern continue, as there sure will be opportunities out there. >> a clear thithe wquestion of deference, this is a question that my former boss, justice scalia has led the charge in recent years that that form of deference that he recognized in a majority of opinions, he's had a very public change of heart on an issue. that issue will get to the hat supreme court in some guise.erdy the court doesn't have it on ite docket. >> doesabo that alaska case fro yesterday raise the issue?y it was about the national park service. >> i don't believe so, but i say that with a low degree of confidence. but i, you know, the issue is going to be before the court,
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and squarely presented and various members of the court ex have essentially invited parties to litigate that issue and i our suspect we'll see it litigated u in the near defuture. the other issue, of course, that your question alludes to is and paul's comments allude to is st this question of the h is circumstances under which o chevron deference may not even be warranted in the first place, which is, of course an outgrowth of the aca decision, and i thin. that that decision will spawn 1,000 flowers in the d.c. circuit when you have parties arguing that chevron deference is not applicable in the first r place. i'ma skeptical that that will take root as an established doctrine in another context. >> there were several other alia cases where they said the same h thing. but there iso, i think, a clears movement on justice scalia, justice thomas and the chief toe
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cut back on that.apply maybe not in all situations. maybe they'll try to find for categories where that applies and doesn't apply. but that does seem to be a theme out there. >> i think we have time for one more question. >> tony morrow. i still don't quite get how you overcome the free rider argument in the friedrichs case or the d free loader. is there nothing that a union does for non-members that the t. union can charge non-members e o for? >> well,e let's take it a step t a time. even the court agrees the quotes free riding on the union's lobbying does not justify compelling them to subsidize, el right?and i go to the state legislature, and i say, here, wee're going t get all these terrific pensionsw for my people and everyone for
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agrees. in every other en burcumstance where bar association lobbies for professors lobby am for tenure.t it's really none of the state'se business whether i agree with that or i'm the agent that makes the decision as to whether or not i want to doerli it.y pe number two is, it's borderline what oxymoronic to say that ug people who have decided not to e join the union and won't give them any money for lobbying or campaign somehow really agree and like all of these policies as long as they're dressed up in collective bargaining packagingd i gave the example of nobody, 3i year old teacher who thinks he'e good or wants to help inner cita kids is going to like what unions are advocating for. b there's a huge educational et debate now about whether or not teachers should be based on merit, whether you should allow chemistry teachers to get more e than phys. ed. teachers, all ofe whichba the unions, of course they're right, have taken one
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position on in this public ou policy debate in which a teacher could take a very opposite viewpoint. so the notion that we're free riding is like saying that a ing wegetarian is free m riding on somebody who's buying meat at s their meal. we don't want this.oint and the government is not authorized to decide it. and then the point that i briefly alluded to was if the unions don't want free riders, don't allow them. don't take the extraordinary power to say i am going to bindr you, a non-member, to my theoryn of wages and benefitting and on class size and educational policy. they can be a members-only unio- that only represent unions, but they have voluntarily decided to conscript the non-members to grant, to get the extraordinary power of exclusive wo representation. so if thereto was any advocacy g group in the world that you io wouldn't allow to make a free tide irarguement, it's the unions, because they voluntarily
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assume this power, this burden r of free o riding, in order to achieve the extraordinary, much greater power of exclusive representation.e the ama can't go to congress and tell doctors how much they're going to get for medicaid and exclude other doctors from y arguing for a different rate.c the union can. be th that's why if there's any context in which you wouldn't r compel ideological subsidation, it would be this one.presen >> as a matter of law in many cases, unions are required to provide representationng to usti everybody, including in prior grievance procedures when they want to come in and grieve about something the boss did to them yesterday. asng justice scalia pointed outs that is the bargain that is maid. if you are going to require them to represent everyone, that there's, that there's some logic to making it, everybody have to
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pay for that now just -- >> i'm sorry, go ahead. >> the, the clear result of noto allowing unions to collect the cost of those services, which io what they collect, is that the p unions have a constitutional right not to represent these as people. so that's what you're going to do is end up with the ep possibility, at least, of eople workplaces where people whoth ah represented by six different unions, and employers are the te last people who want to have that happen. so you end up with a conflict outh employers' interests and employees' tinterests. that and it's surprising to me that h the employees would be able to lon out in that situation. the public employees who have chosen to work in this workplace. >> your facts are flawed. no state in the country requirel a person to undertake a duty of fair representation. they only require of fair e
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representation under the union. you can be a members only. therefore you can leave the non-members entirely out of youa negotiations. of course thea unions e don't w that. they want the extra opower.rte and all they have got, you can't discriminate against those who n you areot purportedly representing. the notion thast this is an important labor policy that plen employers want is belied by th fact that among other things, he 93% of t the private sector don have any representatives. 30 states don't have it. so the notion that this is somehow essential to labor peac doesn't make a lot of sense. and, if california thought it e was essential, then they would . require all unions to be exclusive representatives, which they don't. they say you have the choice.f you can be members-only or ar exclusive. so all of these notions of justt you know, employment disruption are false.i this is all about lining the
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coffers of the unions. >> we'll lea have to leave furt argument on this to the supreme score. i hope you all join me in thanking the pacific legal union. [ applause ] on our next washington journal, we'll get an update on the trans-pacific trade deal and where it stands in congress. from daniel aikenson of the cato institute. then loretta san chesz talks about military training and some of the strategic challenges the u.s. faces around the world. later a conversation with cnbc's diana olin about the real estate industry. washington journal live on tuesday morning on c-span. you can join the conversation by phone or on facebook and twitter. next monday on c-span's new series landmark cases, in 1830,
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dred scott was enslaved to dr. john emerson. during his enlistment in the army, emerson was assigned to duties in several free states during which drid scott married harriet robinson. wh follow the case of scott versus sanford in land mark cases, historic supreme court decisions. exploring decisions by revealing the life and times of the people who were the plaintiffs, lawyers and judges in these cases. next monday, live at 9:00 eastern on c-span, c-span 3 and c-span radio. and for background on each case while you watch, order your copy of landmark cases companion it's available for $8.95 plus shipping. at pic case. up next, a senate small
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business hearing on the impact of colorado's hazardous wastewater spill that occurred in august, contaminating the state's animus river. among the businesses was a local business owner and a western colorado official. there was also testimony from congressman scott tipton whose district was affected by the spill. this is just over an hour. good morning. we will call the committee to order for this morning's hearing which will examine the significant costs and related burdens for small businesses tod resulting from the gold king mine waste water spill near eror silverton, colorado. chairman vitter could not attend.orado. i want to thank him to have thin opportunity to chair this his hearing.tend i ask that his statement be entered into the record. without objection it will be entered into the record. before hearing from the st honorable scott tipton, i want e to mention that the epa was


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