A Funny Thing Happened On the Way to Arbitration

April 22, 2014

The U.S. Supreme Court loves arbitration. Less than a year ago it decided American Express v. Italian Colors Restaurant. There, Italian Colors Restaurant filed a class action suit against American Express on behalf of merchants who accept the American Express card, despite an arbitration clause in the merchant agreement. The Supreme Court gave effect the arbitration clause, and further held that a class action cannot be handled through arbitration. These holdings left merchants with no effective remedy, as no single claim could be brought against American Express because costs would far exceed the amount in dispute.

So it appeared likely that large corporations would use the American Express decision to advance protecting their interests by mandating arbitration in their

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Update on the Rabbi, the Airline, and the Supreme Court

April 22, 2014

The Supreme Court ruled 9-0 in favor of Northwest and against Rabbi S. Binyomin Ginsberg. The decision relies on pre-emption analysis associated with the Airline Deregulation Act. The opinion is moderately dense. Some analysis can be found at The Rabbi, the Airline, and the Supreme Court (my piece) and for deeper analysis read Ronald Mann’s piece, Opinion analysis: Justices hold “good faith and fair dealing” claim about frequent-flyer program preempted, at SCOTUSblog. Oh, and avoid any unpleasantness with an airline frequent flyer program, especially now, for you can be “excised” from the program.

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Southern Judges/Righteous Gentiles

April 13, 2014

Righteous among the Nations is an honorific of the State of Israel, used to recognize non-Jews whose extraordinary acts during the Holocaust saved Jewish lives. I thought about the Righteous among the Nations, known informally—and with respect—as Righteous Gentiles, as I was reflecting on the coverage of the Civil Rights Act of 1964 at 50.

President Lyndon Baines Johnson signed the bill into law on July 2, 1964. I’m not sure about the reasons for celebrating the 50 year anniversary now, about three months early, but there was a major event at the LBJ Presidential Library this past week to commemorate the law and the events that led to its passage. Presidents Obama, G.W. Bush, Clinton, and Carter all

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Jersey … Again!

April 10, 2014

I wrote Jersey and the Fifth Amendment on March 13, four weeks ago. No answers yet, although the news was chock-a-block full of New Jersey Superior Court Judge Mary Jacobson’s ruling on motions for protective orders filed by Bridget “time for some traffic problems in Fort Lee” Kelly (Governor Chris Christie’s former Deputy Chief of Staff) and Bill Stepien, the governor’s campaign manager. Here’s NJ.com’s NJ Judge Rules against Bridge Scandal Panel in Subpoena Fight overview of the court ruling. The story offers the level of information and detail found in most of the stories. Lots of quotes from the ruling, and statements from counsel, and not much analysis.

(The ruling is reportedly 98 pages

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April 9, 2014

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Recognize those 27 words? Yes, you just read the Second Amendment to the U.S. Constitution.

The goofy far Right people dominate the comments from the pro-gun side. That’s Mike Huckabee, Ann Coulter, Rep. Louis Goemert, etc. Intermingled with that crowd, though, we get sage wisdom from the water carriers for American business and the Establishment. They tell us why gun control doesn’t work, and why freedom and the Constitution must be respected. And, and this is the one that really drives me nuts, they tell us we can’t overreact.

We can’t overreact? Why

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McCutcheon et al. v. Federal Election Commission

April 3, 2014

Nearly 40 years ago in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), this Court considered the constitutionality of laws that imposed limits upon the overall amount a single person can contribute to all federal candidates, political parties, and committees taken together. The Court held that those limits did not violate the Constitution. Id., at 38; accord, McConnell v. Federal Election Comm’n, 540 U. S. 93, 138, n. 40, 152–153, n. 48 (2003) (citing with approval Buckley’s aggregate limits holding). The Buckley Court focused upon the same problem that concerns the Court today, and it wrote:

“The overall $25,000 ceiling does impose an ultimate restriction upon the number of candidates and committees with which an individual may associate

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March 31, 2014

From time to time people erupt about the Ninth Circuit, formally the United States Court of Appeals for the Ninth Circuit. It hasn’t happened often lately, but like the swallows of San Capistrano and General MacArthur, it will return!

The entire country is divided into 12 federal judicial circuits. Eleven encompass all of the states and territories, and there is the D.C. Circuit in Washington. The appellate courts for these 12 circuits handle all federal court appeals, with limited exceptions.

The Ninth Circuit is the largest circuit, by area and population. The circuit includes Arizona, Nevada, Idaho, Montana, Washington, Oregon, California, Alaska, Hawaii, Guam, and the Northern Mariana Islands. Eleven states and territories, a huge landmass, and lots and lots

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Hobby Lobby, Redux

March 26, 2014

On Thursdays, Mark Rubin Writes usually focuses on general legal issues. Because I think Sebelius v. Hobby Lobby Stores, Inc. matters greatly, however, you’re getting a follow-up, after oral argument on Tuesday before the United States Supreme Court.

Here are some random thoughts. I have not read or listened to the transcript. I work—and was in trial for two days—and simply haven’t had the time. That said, I have heard and read several reports.

Justice Antonin Scalia wrote the majority opinion in Employers Division, Department of Human Resources of Oregon v. Smith in 1990. The case involved the religious use of peyote. There, he wrote:

If the “compelling interest” test is to be applied at all, then, it must

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Hobby Lobby and the Pill

March 24, 2014

On Tuesday—today, unless you’re reading this blog post on Monday evening—the United State Supreme Court will hear arguments in Sebelius v. Hobby Lobby Stores, Inc., No. 13-354. This case involves a corporation’s right to ignore certain parts of the Patient Protection and Affordable Care Act aka the ACA and Ombamacare. Basically, David Green and his family—owners of the Hobby Lobby chain of craft stores—want to avoid the obligation in the ACA to include contraceptive coverage in all qualifying health insurance plans. More precisely, the issue before the Court is:

Whether the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb et seq., which provides that the government “shall not substantially burden a person’s exercise of religion” unless

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Licensed Fiduciaries

March 23, 2014

Licensed Fiduciaries—I’m one—are individuals and business entities who hold a license, issued by a division of the Arizona Supreme Court. (My law firm is also a Licensed Fiduciary, and I am the responsible party under its license.) We provide services to people in need of assistance with personal and financial matters, and administer estates.

Courts appoint guardians, conservators, and personal representatives. A court will appoint as a guardian a person named in a will, and will also appoint as a personal representative someone named in a will. These individuals can charge a fee for their services, so long as they have been identified in the will. So, nothing about having Licensed Fiduciaries interferes with an individual’s wishes, most of the

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