Katrianna Brisack: June 2016 Archives

2015-16 Supreme Court Term in Review

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It's that time of year again. One First Street is shuttered for the season, and you bid temporary adieu to your favorite Justices and advocates until next October (or you simply turn to the comprehensive catalog of reruns that you, like other true Supreme Court junkies, rely on in those summer months). You lament that improvident Docket Bracket wager, and curse the eternal optimism that led you to believe that just maybe the party you were rooting for would carry the day after all. And then you inevitably catalog your favorite moments of the bygone year, that witty line in that slip opinion or that hard question during oral argument that changed everything. It's a special moment made to peer forward impatiently, but it's also a moment to look back on an exhilarating year - and it is in that spirit that I venture my reflections on the October Term of 2015.

Of course, the most unforeseeable and drastic event of the year was the passing of Justice Scalia this February. There is simply no way to adequately sum up all the different ways he changed the Court. I would begin by stating that even though he is gone, his Constitution lives on - but that seems like a highly inappropriate way to pay one's respects to a thoroughgoing originalist.

(Speaking of which, the "Constitution: Dead or Alive" debate shows no signs of going anywhere, but I still don't understand all the fuss. People who insist that it's alive and kicking use that premise to justify all manner of overreach into decidedly local business, from Goldberg v. Kelly to District of Columbia v. Heller; those who assert that it's dead as a doorknob use that to ignore its plainest wording, from Greece v. Galloway to Gregg v. Georgia. I prefer to think of it as unchanging (so dead) but enduring (so alive), and I honestly don't see the problem with that contradiction. It worked out just fine for Schrodinger's cat.)

Oh, right - back to our topic, Justice Scalia. Whether you loved him or hated him, you had to admit that his judicial exploits always somehow stuck in your head. There was the time he discussed broccoli with General Verrilli, like it was the most natural thing in the world. The time he said that a man's innocence was no reason not to execute him for a capital crime (and, no, for all of you who have always wondered, Lionel Torres Herrera could not be saved on remand). The time he asked an unsuspecting lawyer, point-blank, whether or not he was reading from notes. The time he grudgingly admitted that cannons weren't protected by the Second Amendment (but wasn't so sure about rocket launchers). And all the countless times we heard him pounding on the bench to accentuate his point - a sound that we'll always associate with one of those hard questions.

But the year held more incredible twists and turns, and the docket had plenty of surprises as well. Probably one of the most highly anticipated appellate blockbusters of the Term was Friedrichs v. California Teachers Ass'n, the case on the constitutionality of agency-shop labor agreements. The petitioners tried the freedom-of-association angle, complete with a nod to the "money is speech" concept and high-flying rhetoric about "fixed stars in our constitutional constellation." To which the respondents said basically: "Adair you to - double-[yellow]-dog!" And it worked, at least for all practical purposes.

expounding.jpgNo summary of the past year would be complete without a rundown of all the other embarrassing splits handed down this Term. There was US v. Texas, in which the Justices couldn't agree to deport or not to deport. And there was Zubik v. Burwell, in which they narrowly avoided stalemate by a brief stint as the Supreme Arbitration Panel, suggesting that the parties might be able to work something out (maybe we haven't come so far since Van Staphorst v. Maryland, 225 years and 597 U.S. Reports volumes later).

I am also bound to mention the most preposterous moment of the year, and I believe Nichols v. United States earned that honor as the case in which the famed electric courtroom air failed to live up to its luminous reputation, and the splendid halls were suddenly cloaked in blackness. Come to think of it, that actually sounds like a good movie - power goes out in a lightning storm, resulting in a Night at the Museum kind of thing where those remarkably lifelike statues of Warren Burger, John Marshall and Clarence Thomas suddenly spring to action and start asking questions.

No, wait. That happened, at least 1/3 of it, in yet another highlight of this unpredictable year. Just when we were thoroughly convinced he was no longer on speaking terms with a solitary member of the SC bar, was afflicted with acute and permanent laryngitis,  had secretly become a Cistercian monk, or all of the above, an unfamiliar voice addressed an unsuspecting advocate with a question - a hard one - and it took us all a moment to figure out what had happened. It might be hard for advocates to get used to, knowing that they could get grilled at any moment by any member of the bench - but then again, it doesn't seem like they'll have to get too used to it, so that's an issue for another day.

And, finally, Whole Woman's Health v. Hellerstedt, the dramatic decision that closed out the term with a ringing reaffirmation of Roe v. Wade. Kennedy indeed swung left, providing us with a 5-3 majority that suggests the era of this might finally be over:

swingvote.jpgOr not - I suspect the ghost of Zubik past will haunt us all next Term. But for now, the Constitution is safe in the hands of the lower courts, leaving us to enjoy our summer (or, as the case may be, speculate about the cert. pool. But that's our problem).

Say No to TPP: Brexit and US Trade Policy

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It's official. 51.9% of British citizens decided to leave the European Union in a landmark referendum, choosing national sovereignty and control of their own policies over their forty-three year bond with continental Europe. This decision was definitely influenced somewhat by the ongoing migrant crisis, but also stemmed from widespread frustration with the trend of globalization. Britain decided that the benefits of closer integration with foreign countries - the job creation and international harmony that free-trade deals were supposed to create, but that never materialized - were outweighed by the costs - the loss of many jobs, an influx of imported goods, and the partial loss of national independence.

Here in the United States, we are facing a similar decision on the future of our jobs as a vote on the proposed Trans-Pacific Partnership looms, but what we may not realize is that we as citizens have the same power Britons just exercised.

According to this document's preamble, it "promotes economic integration to liberalize trade and investment, bring economic growth and social benefits... reduce poverty and promote sustainable growth." Apparently, our government and the corporations it is speaking for here do not expect us to read further. Because if we do, we will notice that this, too, was likely generated in the same specious slippery spirit as all those other things that don't deceive us. We will refuse to be fooled. We will realize that this agreement does nothing to prevent the mass exodus of our American jobs; it merely bids them adieu as the gangplank goes up and they go puffing away. It does nothing to protect the foreign laboring class, give them decent hours or the right to improve their situation through collective bargaining; it merely gives the dignified speech at the cornerstone laying of another faraway sweatshop. It does nothing to hinder the commonplace crimes against our persons, the toxic air and corrupted foods we accept for lack of a choice; it merely sanctions the conspiracy of silence keeping us ignorant of what we're doing to ourselves. And it sets up a subtle satire of the justice system, allowing corporate lawyers to eviscerate our progressive statutes without ever setting foot in U.S. courts, while simultaneously subjecting regulators to the twists and turns of tangled, undeveloped foreign legal systems if they want to enforce the more liberal provisions.

They insist that all this will do us a service, provide a much-needed boost to our economy. But by doing away with the vilified Reign of Tariffs, they are only enabling foreign governments and corporations to encroach on our independence. But we can defeat this if we pull together to remind Congress that they ultimately answer to the people that trusted them to serve us - even if all we could contribute to their campaigns was our support.

We can continue to fight for our economy and our rights as consumers. We can Say No to TPP.

Conscious Commitment: Help Us "Save Our Seeds"

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Recently, we told you about the unlawful practices of Monsanto Technologies, which develops and conditionally sells GMO seeds using a standardized, unconscionable contract which prohibits farmers from saving and replanting the seed. Acting under color of this misrepresentation, they have maliciously prosecuted dozens of law-abiding growers, stifled the academic freedom to research their seeds, and obtained the Supreme Court's stamp of approval on a manifest fraud.

I have since launched an initiative to bring Monsanto and their executives to justice and hold them accountable for their falsehoods. I need your help to do this, however. Recognizing that, I created a We the People petition exhorting the Department of Justice to take action against these corporate criminals:

"We the People ask our DOJ to take antitrust action against Monsanto Technologies and preserve the rights of American farmers and consumers. Monsanto has created an unconscionable, illegal contract in which farmers agree not to save seed, ignoring the clear words of patent laws and the PVPA.

Restricting access to new technology in no way furthers agribusiness' supposed goal of feeding the world; informing citizens as to the contents of the laws in no way jeopardizes any legal purpose. Our officials serve those who shape law with soft money instead of firm stands, and scientific and economic freedom is trampled as a result. We are merely asking the enforcers of our laws to take a stand for us, to recognize the flagrant violations of the Sherman Act Monsanto and like companies commit daily."

Please sign our petition today - help me live up to this "Conscious Commitment" to protect economic freedom in this country.

Update: Clean Power Remand Cert. Denied

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Yesterday, the Supreme Court issued a new list of orders in which it denied certiorari review, without explanation, to the case of Michigan v. EPA, which concerned whether the Agency unlawfully refused to consider costs in the promulgation of its Mercury and Air Toxics Standards pursuant to the Clean Air Act. It had already heard the case once last year, ruling in favor of Michigan and other industry petitioners, but sent the matter back to the D.C. Circuit without explicitly vacating the MATS.

The Circuit, led by Judge (and future Justice) Garland, accordingly allowed the MATS to remain enforceable until new guidelines were issued by the EPA. Michigan accordingly took the matter to Chief Justice John Roberts, who denied their indignant stay application of his own accord without referring the matter to conference. The ensuing full petition was also rejected in a one-line order on Monday - this is most important because it signals that no four Justices thought Michigan's position was meritorious enough to warrant a hearing, a fact that could bode well for the rest of the Clean Power Plan when West Virginia v. EPA is heard at the beginning of next Term.

This could also indicates a shift in the Court's perception of equitable relief. Since the petitioners' demands in the first Michigan fall under the purview of traditional equity rules, the courts are given greater latitude to consider the greater good when deciding on these claims. The D.C. Circuit exercised that chancery jurisdiction in this case, concluding that the benefits to citizens' health and welfare - up to 11,000 instances of premature mortality prevented annually, as well as 4,700 cardiac emergencies and 250,000 instances of respiratory illness every year - outweighed the burden that regulatory compliance places on the energy and manufacturing industries. As was said in 1947, "a strong showing is required, both of inadequacy of the prescribed procedure and impending harm, to permit short-circuiting of the administrative process," and the petitioners failed to prove that any impending harm caused by the case would adversely impact them. Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752. By allowing that determination of the D.C. Circuit to stand, the Supreme Court renewed what the respondents called the tribunal's "longstanding reluctance to displace traditional equitable authority absent the 'clearest command' or an inescapable inference' to the contrary." (Citation omitted). In recent years, such deference to administrative discretion and the principles of equity has been rare, but as this denial shows, the reversal of that trend could be imminent.

The mere denial of a cert. petition is rarely treated with the same weight as a full decision, and even this acknowledgement of citizens' interests and the EPA's authority cannot fully erase the damage created by the Michigan precedent. However, the changing Court and the changing political climate inevitably move American jurisprudence forward, and we at PlanetGreen believe that someday the natural world will receive the respect from the judiciary that Justice Douglas once famously declared it deserved:

"So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes -- fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water -- whether it be a fisherman, a canoeist, a zoologist, or a logger -- must be able to speak for the values which the river represents, and which are threatened with destruction." Sierra Club v. Morton, 405 U.S. 727 (1972).

Our earlier coverage of this case, both a preliminary statement of the issues and a personal perspective.

Conscious Commitment: Inmar, Inc.

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coupon.jpgYour wallet speaks for itself. Evidence of Inmar, Inc.'s dominance in the coupon industry is everywhere. Blazoned under the colorful trademarks of everything from breakfast cereal to batteries; stacked beneath the flashing lights of that dispenser on the grocery store aisle shelf; inserted in the newspaper curled up in that mailbox; folded and crumpled in that disorganized folder; printed on glossy vibrant paper and plastered onto the boxes composing that supermarket display.

Just last April, Inmar released a statement announcing that it had taken over coupon processing services for Procter & Gamble brands. This development cements the existing diarchy Inmar and its supposed competitor but actual collaborator, Valassis Communications, enjoy over this industry. In the statement, Inmar asserts that P&G formerly handled its own coupons, but this has not always been the case. A 2006 10-K form Valassis filed with the SEC states that P&G accounted for over 10% of that company's income the previous year, indicating that P&G has merely shuttled its business between the two corporations instead of comprising a third major player in the coupon-clearing market.

In the same 10-K form, Valassis names Inmar as one of its main competitors, but this claim is plainly refuted by the business relations they openly sustain. In its capacity as the owner of RedPlum, a mailing distributing coupons held by various companies directly to consumers, Valassis openly and actively aids Inmar in disseminating its coupons. Clearly this is not the aggressive competition one would expect from two companies which jointly "control approximately ninety-five percent (95%) of the total vendor coupon redemptions" (Compl. §16, 15-4434 (JLL), Dist. NJ (1015)).

The pattern of monopolization does not stop there, however. Though Inmar's coupon redemption and product return business is its most visible enterprise to consumers, it is certainly not its only venture. It is actually the predominant figure in the pharmaceutical returns market as well, and our research into its practices indicates that the leverage it enjoys as a result of its prominence could have far-reaching consequences for citizens compelled to trust it with their health.

It was a minor incident, and never should have been the major controversy it turned into. In November of 2008, Johnson & Johnson and its affiliate, McNeil Consumer Healthcare, noticed that several lots of their product Motrin failed to satisfy their manufacturing standards and were defective. This news immediately followed a string of recalls of other popular Johnson & Johnson products, including widely used cold and allergy medicines. Presumably to avoid the negative publicity that would result from expanding the recall to include the faulty Motrin, Johnson & Johnson decided to keep their findings secret. To do this, they formed a plan to send operatives into retail stores posing as customers, who would then buy back as much Motrin as possible. However, consumers who had already bought the defective Motrin would not be notified in any way of the problems.

Johnson & Johnson then hired Inmar to carry out this clandestine design, rejecting bids from several companies to handle the recall openly. Inmar promptly mobilized its employees and contractors, instructing them:

"You should simply 'act' like a regular customer while making these purchases. THERE MUST BE NO MENTION OF THIS BEING A RECALL OF THE PRODUCT! If asked, simply state that your employer is checking the distribution chain of this product and needs to have some of it purchased for the project."

Approximately five thousand convenience stores were searched in this fashion. The first two hundred and fifty stores yielded 595 vials, but the actual number of defective Motrin remaining on the market was dramatically higher - in one state alone, seven hundred and eighty-seven packages remained missing even after Inmar's feeble attempts to rectify the situation.

The recall was finally made public in February of 2010, over a year after Johnson & Johnson became aware of the problem and over ten months after Inmar became involved in the cover-up. Congressional hearings, civil lawsuits and criminal prosecutions ensued, but though Johnson & Johnson was made to take responsibility for its misconduct, Inmar escaped any meaningful penalty.

Now, five years after the federal firestorm subsided, Inmar is still in the pharmaceutical returns business, a job mostly composed of disposing waste, juggling returned or expired merchandise, and managing recalls. On its website, it proudly boasts that it provides these services to twenty-four thousand retail pharmacies (out of approximately twenty-eight thousand in the country), giving it control over 86% of the market. As Inmar has proven in the past, this anticompetitive situation could prove injurious to consumers which may never have heard its name, but still entrust it with their well-being every time they purchase the simplest of medications.

About this Archive

This page is a archive of recent entries written by Katrianna Brisack in June 2016.

Katrianna Brisack: May 2016 is the previous archive.

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