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Hobby Lobby and Final Thoughts

July 8, 2014

Here are a few final thoughts on Hobby Lobby. (I’m pretty sure I’ve said that before; however, Hobby Lobby seems to be the case that won’t go away.)

The Supreme Court takes about 70 cases during each nine month term. It only takes those cases it chooses to hear. Matters of great import, and cases where the federal circuits are split, represent its caseload. And, while its decisions directly affect the parties in the case, broad principles and clarifying/shaping the law provide its raison d’etre.

We pay the justices to handle the hard questions. And we expect, rightfully, that they come at each case straight up. (Yes, I know five male, Catholic members of the Court gave companies

Law, The Rest of Everything

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“Not” Hobby Lobby!!!

July 1, 2014

Mark Rubin

I almost wrote a disquisition on Stern v. Marshall, No. 10-179, a big-deal bankruptcy case that involved Anna Nicole Smith and the estate of her deceased husband, a partner of the Koch brothers’ father. Not being super-sharp on the issue, I thought instead that I’d write about the Highway Trust Fund. (You’ll be hearing about the issue over the next 30 days, for sure.) Or about the alleged, “it’s coming,” John Boehner suit against President Barack Obama.

I suspect you’ve figured this one out by now: I was simply looking for anything, anything lighter and easier to get through than what the U.S. Supreme Court has visited on us in the last several days. Alas, I struggled. Then

Food

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Breaking: Last Two Cases of the Term

June 30, 2014

Mark Rubin

In Harris v. Quinn, No. 11-0681, the U.S. Supreme Court has distinguished between full-fledged public employees and home health care workers with respect to any obligation to pay union dues. More tonight/tomorrow, but the decision was 5-4, and does not appear to be the death knell for public unions that you may be reading about elsewhere. No good news for unions anymore, but the decision looks like it could have been much worse.

And Burwell v. Hobby Lobby, No. 13-354? Bad, bad news! Another 5-4 outcome, and the Court has seemingly made a hash of corporate law.

More by tomorrow morning!

Law, The Rest of Everything

Less Pissed Off … But Still!

June 29, 2014

Mark Rubin

Less pissed off I am! I understand—and will try to explain—the majority decision in McMullen v. Coakley; still, the decision troubles me.

The First Amendment provides, expressly, that “Congress shall make no law … abridging the freedom of speech … .” (Not important, here, is the means by which the First Amendment applies to a law adopted by the Commonwealth of Massachusetts.) Political speech gets special protections, for the First Amendment was designed to protect it.

Time, place and manner restrictions are permissible. Justice Oliver Wendell Holmes, in Schenck v. United States, stated what seems obvious: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing

Law, The Rest of Everything

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Pissed Off, and … Professionalism!

June 26, 2014

Mark Rubin

Prefatory comments:

Below, you will read the Friday post. But I’m pissed off, really, really, and almost postponed ”Heart of the Matter” to focus on McMullen v. Coakley, No. 12-1168. McMullen is the Supreme Court case that deals with 35-foot buffers from facilities which provide lawful abortions. The Court, in a unanimous decision, relied on pretty traditional First Amendment analysis to reach the conclusion that a state cannot limit the rights of strangers to get in the faces of women seeking a lawful procedure, so that the strangers can share literature and provide information about alternatives to abortion.

Only the attorney in me—the part that says “calm down, read the opinion, know what you’re talking about”—has kept me from

Law, The Rest of Everything

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Court

June 24, 2014

Mark Rubin

The Supreme Court issued three opinions yesterday. Here’s SCOTUSblog’s Tuesday Round-Up, with a brief summary of each case, along with links to commentary.

The big news related to Utility Air Regulatory Group v. EPA, No. 12-1146. The case involves the Clean Air Act and the EPA’s authority to regulate stationary sources of greenhouse gases. If I understand the decision correctly—a somewhat dubious proposition, and the major theme to this post—the EPA designed a regulatory scheme that amounted to a “less than allowed” amount of regulation, as adherence to the authority it was given would have created an unadministrable program. “No, no,” said Justice Antonin Scalia, the law neither permits nor compels such an outcome.

The day job calls,

Law

Court Stuff

June 17, 2014

Mark Rubin

It’s Court-time, that busy time in June when the U.S. Supreme Court gets ready for its summer vacation. (Is there any hope for getting away from the ag-based, nine-month school year, when one of our three governmental branches has the summer off?)

Here are a few cases recent cases that caught my attention.

In Clark v. Rameker, No. 13-299, the Court issued a unanimous opinion holding that an inherited IRA does not qualify as an exempt asset. Justice Sotomayor, in her opinion, looks at the characteristics of an inherited IRS—no money can be added, money must be withdrawn, and all money can be withdrawn at any time without penalties—and reached the conclusion that the assets belongs to creditors in

Law

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Rule against Perpetuities! (Really!!!)

June 12, 2014

Mark Rubin

I attended a dinner at a bank—as it happens, my bank—on Tuesday night. The topic? Current Trends in Trust and Estate Planning. ‘Twas a fine presentation, with decent wine, a good meal, and a speaker worth listening to. And an hour of continuing education credit.

The speaker, a banker, focused his talk on dynasty trusts. There is no particular definition for a dynasty trust: in simple terms it’s a trust that lasts a long time.

Now, I was in law school between 1978 and 1981, many years ago. I learned about the Rule against Perpetuities. This rule, as I learned it, held that no property in a trust could vest in a beneficiary after all lives in being

Law

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Inequality – Part 3

June 7, 2014

Mark Rubin

For a while, on and off, I have been promising more on inequality. (I make a fair number of promises and I need to work on that, for I’m not living up to too many of them.) It’s here, it’s about 3-4 times as long as a usual MarkRubinWrites post, it’s depressing, and I think it’s important.

One more thing, and this is really for those who worry about me. Yes, those people do exist, and they know who they are! This post goes somewhere, along with future posts, but none of this is about “soaking the rich” or higher taxes, or a redistribution of income. More taxes may be part of something, but moving money around, alone, goes nowhere.

The Rest of Everything

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George Will is a Jerk!

May 14, 2014

Mark Rubin

My Mama spent lots of time drilling into me the notion that “if you don’t have something nice to say, don’t say anything.” For sure, calling someone a jerk is not nice, but you all are not privy to prior versions of the headline for this post. “Jerk” is way kinder than where I started.

George Will and I go back many years, albeit in a totally one-sided way. He doesn’t know me from Adam’s off ox. (That’s a more detailed way of saying “he doesn’t know me from Adam,” and was brought into modern parlance by President Bill Clinton in June 1993.) I was a fan for many, many years. The man can turn a phrase, even now, and

The Rest of Everything

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