Who’s afraid of Hobby Lobby?

On Monday, the U.S. Supreme Court issued a decision exempting closely-held, for-profit corporations from having to pay for health plans that cover certain forms of contraception, should the owners have a religious objection to same.

A predictable outcry from the left (and plenty of gloating from the right) resulted.  But Doug Mataconis (whose readers will know he has no religious objections to birth control – or anything else, really) argues that the decision is quite limited in scope, and was probably inevitable under the Religious Freedom Restoration Act signed into law by President Clinton:

First of all, the Supreme Court did not rule today that all for-profit corporations may make claims under the Religious Freedom Restoration Act. Instead, it limited its opinion to “closely held corporations,” which are typically defined as corporations where a majority of the shares are owned by five or fewer people (although the number can vary from state to state). Most closely held corporations are small businesses that don’t even have enough employees to fall under the requirement that employers provide coverage to their employees under the PPACA. Some, however, like Hobby Lobby, are larger corporations that still happened to be owned by a small number of people. …

…Reading the language of the statute, one has to admit that they had a strong argument in their favor in that regard and it’s difficult for me to say that the Court was wrong in its interpretation of the law here. Part of what the law requires is that the Court balance the religious claims asserted by the employers with the interests asserted by the government. In this case, the interest in question would be providing increased access to birth control to women. Even if you agree that this is a legitimate and important government interest though, it’s plainly obvious that there are means by which the government could accomplish this goal without requiring employers like the Greens to violate their religious beliefs. The most obvious means, of course, would be some form of direct subsidy to employees but there are other means as well. In addition, the Court found that the mandate in question placed a “substantial burden” on the religious liberties of the Greens and those similarly situated to them. Given this, the balancing test came down clearly in favor of the Greens.

Third, as noted above, the Court did not say that RFRA gives owners of companies like Hobby Lobby the right to refuse a whole host of items typically covered under a health insurance policy just because they might have a religious objection to those procedures. So, this case is not going to lead to Jehovah Witness employers refusing to cover blood transfusions or transplants. The Court also said that the holding should not be seen as meaning that a private employer of any kind could avoid liability for a claim of illegal discrimination based on their religious beliefs. This would seem to be addressed to concerns regarding people trying to use religion to avoid liability under laws banning discrimination against people based on sexual orientation. Obviously, what this decision actually means for future cases will depend on the facts of those cases and the Judges that hear them. However, it’s important to note that, just as it did in the Heller gun control case, the Supreme Court seems to be sending a signal here that its holding is not as broad as some advocates for one side or the other might hope or fear.


As for the opinion itself, I think the Court got the result right for the most part. In the end, a closely held corporation is really nothing more than a partnership with tax advantages. What ever you might call it, it is still a business that is owned by a small amount of people. If Hobby Lobby were a partnership or sole proprietorship, there would be no question that the Greens would be within their rights to assert a religious objection under the RFRA. Given that, it doesn’t strike me as being all that radical to say that they retain those rights when they enter into a different kind of business form that, ultimately, was chosen so that they could expand the company to the national operation employing thousands of people that it is today. We are still talking ultimately about the individuals who own the company and their rights, which is why this decision would not make any sense if you applied it to a publicly traded corporation owned by tens of thousands of individuals and institutions like Apple, or Exxon Mobil. …

There are perfectly reasonable objections to the Hobby Lobby ruling, but I don’t think it brings America any closer to The Handmaid’s Tale any more than the recent flurry of pro-gay-marriage rulings is turning the country into Sodom.

Speaking of which…

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In defence of Hillary’s defence work

The conservative Washington Free Beacon dug into Hillary Clinton’s representation of an accused rapist during the mid-eighties, and posted this audio recording from an interview given a few years later:

The Free Beacon‘s Alana Goodman argues that Clinton’s representation of this man, and her subsequent discussion of the case, raise serious ethical questions about the presumptive presidential nominee.  And to be fair, the fact that she discussed the case publicly, in such detail, is indeed questionable conduct for a defence lawyer:

From a legal ethics perspective, once she agreed to take the case, Clinton was required to defend her client to the fullest even if she did believe he was guilty.

“We’re hired guns,” Ronald D. Rotunda, a professor of legal ethics at Chapman University, told the Washington Free Beacon. “We don’t have to believe the client is innocent…our job is to represent the client in the best way we can within the bounds of the law.”

However, Rotunda said, for a lawyer to disclose the results of a client’s polygraph and guilt is a potential violation of attorney-client privilege.

“You can’t do that,” he said. “Unless the client says: ‘You’re free to tell people that you really think I’m a scumbag, and the only reason I got a lighter sentence is because you’re a really clever lawyer.’”

Clinton was suspended from the Arkansas bar in March of 2002 for failing to keep up with continuing legal education requirements, according to Arkansas judicial records.

This really isn’t what she’s getting attacked for, though.  And The Volokh Conspiracy‘s Jonathan Adler is troubled by Ms. Clinton’s zealous representation of client accused of a serious crime – something the legal system needs people to do – being used against her all-but-declared presidential run:

Much, if not all, of the criticism of Clinton resulting from this story is misplaced.  She was asked (by the prosecutor, no less) to represent a criminal defendant.  Her client was accused of raping a 12-year-old girl.  From what I can tell, Clinton believed her client was guilty but was nonetheless able to obtain a favorable plea deal because the government had mishandled incriminating evidence.  A forensic lab performed tests on blood stains found on the defendant’s underwear, but discarded the relevant piece of clothing (literally leaving a pair of underwear with a hole cut out).  Lacking the necessary physical evidence to convict, the prosecution offered a plea deal.  Some of the relevant court documents are available here.  A previously unreleased interview with Clinton about the case is available here.

What should we make of this story?  Perhaps nothing more than that Hillary Clinton represented someone in need and fulfilled her duty as a member of the bar to provide a zealous defense of her client.  This is not something for which she should be attacked.  We are all the worse off if the message sent to young lawyers is that representing guilty or unpopular clients is likely to be a political liability down the road.  Ably and effectively representing a criminal defendant — even one you believe to be guilty — is not “scummy” or inappropriate. Forcing the state to prove its case before it deprives an individual of their life, liberty or property is a noble endeavor.  So while I think the story is newsworthy, I think most of the attacks on Clinton for this episode are misplaced, and a bit opportunistic. [Note that some attacking Clinton are also calling for more more due process protections for college students accused of rape.]


The bottom-line here is that Hillary Clinton’s work on this case as a young attorney 40 years ago is interesting and newsworthy, but that’s about it.  Unless and until more damaging evidence emerges, there’s no basis for the new attacks on her.  Anti-Hillary folks should look elsewhere.

Contra The Washington Free Beacon, there is nothing “scummy” or “semi-sociopathic” about what she did (and, no, I don’t find the uncomfortable laughter on the audio tape interview with Clinton a decade-or-so after the fact to be troubling either — listen to it for yourself.)  She engaged in able and (as far as we know) ethical defense work — and defense work is a noble calling.  The WFB may be correct that it’s not a winning political argument to defend the work that defense attorneys do.  If so, that’s a sad commentary on our political system, and not something thoughtful commentators should celebrate or exploit.

Adler and his libertarian Volokh Conspiracy colleagues aren’t Hillary supporters, and neither am I.  (Fact is, the more I look at both major parties’ potential nominees for 2016, the more I find myself wanting Mitt Romney to run again.  And I didn’t even back Romney last time around.)  But in this case, it seems like she did her job and did it well.

Related: in April Adler savaged the Republican Governors’ Association for a campaign ad against the Democratic nominee for South Carolina Governor, which attacked his criminal defence work, and bemoaned the growing trend of politicians and activists – not just conservatives and Republicans, for the record – going after lawyers for doing their work:

Representing unpopular causes or clients is never easy, but it is necessary.  Organized efforts to blunt the careers of those who take on such efforts are shameful.  It would be one thing if Sheheen were accused of unethical conduct in his representation of his clients.  It is quite another to attack him for defending those who, however horrific their crimes, needed a legal defense.  A lawyer is responsible for his or her own conduct, and is not responsible for the sins of the client.

The RGA is not the first to attack lawyers for having agreed to represent unpopular clients or causes, but that hardly makes the ad any more defensible.  Others on the right wrongly went after attorneys who agreed to represent Gitmo detainees.  Folks on the left assailed Bush nominees who represented corporations or defended administration policies and attacked King & Spalding and Paul Clement for agreeing to defend DOMA.  Some members of Congress are also currently attacking district court nominee Mark Cohen because he helped defend Georgia’s voter ID law.  All such attacks are misguided.  Left unchecked, they pose a threat to the adversary legal system.  As Paul Clement wrote when he resigned from King & Spalding:

Defending unpopular positions is what lawyers do.  The adversary system of justice depends on it, especially in cases where the passions run high. Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law.

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The greatest movie summer ever

Via @SonnyBunch, check out the box-office chart from this weekend thirty years ago:


Yeah, I know, Rhinestone.  And few Star Trek fans would put Search for Spock at the top of their lists.  But any summer with Ghostbusters, Gremlins, Temple of Doom, the original Karate Kid and Top Secret! would rank as a particularly great blockbuster season under any circumstances.   (Also, The Natural, which I’m sad to admit I’ve never seen.) These were all playing at the same time – not to mention spring holdovers Romancing the Stone and the best Police Academy movie without Bobcat Goldthwait.

Things did cool off considerably in July, 1984, but a few more classics, near-classics and childhood favorites came out that month: The Last Starfighter, Purple Rain, Revenge of the Nerds (a true word-of-mouth hit that didn’t even debut in the top ten), Bachelor Party and The Muppets Take Manhattan.

August, traditionally a dumping ground, was pretty barren – Clint Eastwood’s Tightrope was biggest opener. But my theory is that one particular movie released in August, 1984, was so intimidating that all the other studios let it have the month:

I had a weird dream once that they remade Red Dawn with North Koreans instead of Russians, and starting the guy who played Thor or his brother or something. Must have been something I ate.

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Don’t start making counterfeit Washington Redskins merchandise just yet

In recent years, the campaign against the team’s offensive name has gained considerable momentum, with even Senate Majority Leader Harry Reid publicly speaking out against it:

Despite this, I still think the team should change its name.  And a recent “landmark” decision by the U.S. Trademark Trial and Appeal Board, cancelling trademark registration of the “Redskins” name for its innate offensiveness, is being held up as a major step forward.

Tim Lince at World Trademark Review, however, says the decision is not nearly as big a deal as it seems.  The ruling is stayed pending appeal, and in any event, even if it were upheld the team would still have recourse against unauthorized producers of team merchandise:

Under the assumption that the REDSKINS term is now under no legal protection, hundreds of people on websites, social media and forums are saying, presumably mostly as a joke (but you never know!), that they will now start making unofficial REDSKINS merchandise in the wake of the decision. William McGeveran, associate professor at the University of Minnesota Law School, says he “wouldn’t expect the [trademark] team to police its marks any less aggressively as a result of this decision”, but affirms that “news reports suggesting that counterfeit Redskins jackets will now be legal are just plain wrong”.

WTR covered the original cancellation of the REDSKINS trademarks and subsequent overturning of the decision in 2003 and wrote about the case being dismissed in 2009. As Tim Kelly, partner at Fitzpatrick, Cella, Harper & Scinto LLP, notes, “the decision that the term REDSKINS was disparaging to a ‘substantial composite’ of Native Americans at the time the trademarks were registered is based on substantially the same evidence that was viewed as insufficient in the appeal of a prior proceeding”. Given this, the Washington Redskins’ lawyer Bob Raskopf’s gave a defiant response to yesterday’s decision: “We’ve seen this story before. And just like last time, yesterday’s ruling will have no effect at all on the team’s ownership of and right to use the Redskins name and logo. We are confident we will prevail once again.”

For now, the REDSKINS trademark registrations that are the subject of the cancellation proceeding will not be cancelled until the appeals process is exhausted. Kelly adds: “Importantly, the TTAB does not have jurisdiction to prevent the use of the marks it ordered cancelled. As such, the petitioners in the cancellation proceeding will need to seek a court order to prevent the NFL from using the name. An interesting question will be how much deference the courts will give to the decision of the board, an issue that the Supreme Court is already considering taking on, albeit in the context of a likelihood of confusion claim.”


Sommers notes: “Even if a court upholds the cancellation of the registration on appeal, the team will still have so-called ‘common law’ trademark rights arising from its long and consistent commercial use of the name. And those rights are very strong. They include the ability to stop other people from using the mark in a way that appears to be authorised by the team.” However, with media reports declaring that the trademarks are cancelled, readers could interpret that as a free-for-all to capitalise on the REDSKINS brand. Job one for the team’s trademark department, then, is managing that information flow. After all, any spike in infringing activities will mean that the trademark team’s policing burden gets heavier.

Anyone else think it’s no accident that the anti-“Redskins” campaign picked up steam after litigious bully (and bad free-agent picker) Dan Snyder bought the franchise?

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The end of the Top 40

Further to my post about Casey Kasem, the Christian Science Monitor notes the difficulty in charting America’s most popular songs in the digital age:

…as Mr. Kasem’s time before the microphone dwindled, the format he created to determine pop music popularity became less relevant. With the splintering of radio formats, followed by the advent of digital media, it became more of a challenge to quantify hit songs, no less figure out what American consumers, as a collective, were listening to together and at once.

“The notion of a ‘No. 1 record’ began to be outmoded even with the rise of FM Radio in the 1960s, which became the cutting edge music on radio,” says Paul Levinson, professor of media studies at Fordham University in New York City.


Listeners now exist in a niche world of culture and enjoy the freedom to curate their own tastes without the guiding hand of radio programmers. That’s why megahits are no longer quite as mega as in Kasem’s time.

“The problem of identifying ‘No. 1’ songs has certainly become more complex in recent years. No longer can a charting organization look to one or just a few types of sources to calculate a song’s success,” says Ed Arke, a communications professor at Messiah College in Mechanicsburg, Pa.

Even what constitutes a hit is now elusive: Social media buzz can catapult a song like the 2013 hit “Harlem Shake” by Baauer to instant mass attention and skyrocketing download sales without outside exposure, for example. Viral popularity based on views and not retail sales is often difficult to assess, but it has not gone unnoticed, which is why Nielsen Soundscan now tracks major streaming services.

“What we’re seeing is more artists who are having small to medium success and fewer megahits, a trend likely to continue because the number of sources to factor into such a rating systems have grown so much, it is becoming increasing more difficult to gather all of the relevant data from across the country and around the world,” Professor Arke says.

Even the world of countdown shows has multiplied since Kasem departed the airwave. In addition to Seacrest’s “American Top 40,” other countdown shows exist on SiriusXM, CMT, VH1, Last.fm, Hype Machine, among other outlets – many based on different metrics and showcasing different results.

The Billboard Hot 100 is still around, but the current version of American Top 40 now uses data from Mediabase, with very different results.  (Note that several country songs – extending the definition of “country” to include Florida-Georgia Line, of course – rank fairly high on the Billboard chart, but are nowhere to be found on AT40.)

During the Casey Kasem era (and even when Shadoe Stevens was hosting AT40) it was very common for songs from other genres to cross over to the countdown.  Programmers today make sure that never happens.

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Book review: “The Secret World of Oil” by Ken Silverstein

[originally posted at Canadian Lawyer on May 19, 2014]

The good Lord didn’t see fit to put oil and gas only where there are democratic regimes friendly to the United States.” — Dick Cheney
You might not be a fan of the last vice president of the United States, but the experienced oilman was on to something when he made this observation. There is actually a lot of oil under (or in the sea next to) wealthy Western democracies, but much of the black stuff just happens to be located in some of the world’s poorest, most corrupt, and lawless nations.If anything, these countries are corrupt and lawless because of the oil in their ground. The revenues are used as a personal piggy bank for dictators and their cronies, while very little of that wealth is used for good schools, hospitals, or infrastructure. Meanwhile, armies of lobbyists, consultants, brokers, and former politicians have spread out around the world, helping smooth things out between those who control the oil and the energy companies who want to drill for it.Everyone knows about Exxon Mobil Corp. or Suncor Energy Inc., but few will have heard of, say, Glencore Xstrata, one of the wealthiest and most secretive enterprises in the world. The Secret World of Oil, by journalist Ken Silverstein, will surprise and intrigue readers with its vivid portrayals of these powerful, little-known players — but the book also, perhaps inadvertently, illustrates the importance of the rule of law.In Louisiana, for example, the oil and gas industry has a lot of clout, and they’ve been very effective at ensuring Democratic and Republican legislators make sure laws governing the industry aren’t too strict. But that’s not the whole story: as illustrated in The Secret World of Oil, creative and determined lawyers have developed innovative and surprisingly effective strategies to help people who’ve been wronged by these powerful, politically connected energy interests. Dubbed “legacy lawsuits” by the industry, landowners in the state have sought redress against oil and gas companies for serious environmental damage caused to their property. In 2003’s Corbello v. Shell decision, the Louisiana Supreme Court upheld a $33-million judgment against the Anglo-Dutch giant, which had negligently stored salt water in unlined pits on William Corbello’s property. Critically, the court held punitive damages against corporate polluters could exceed the fair market value of the property. (“They’ve never learned the lesson taught to the rest of us by our mothers, which is you do the right thing and clean up your own mess,” says trial lawyer Gladstone Jones III.) The energy companies have fought back against legacy lawsuits, with some success, lobbying for legislation that would limit damages awarded in such cases. Still, even though the players in the game may not be evenly matched, at least there are clearly defined rules and effective ways for the underdog to fight back. In oil-producing nations like Equitorial Guinea, by contrast, there really are no rules except for the ones the ruling family make up on the fly. Run by the tyrannical Teodoro Obaing since 1979, this tiny African country is one of the wealthiest nations, per capita, on the continent. Unfortunately, most residents haven’t benefited at all — indeed, according to some social indicators, things have gotten worse for the average citizen since the oil started flowing. Obaing and his inner circle have done pretty well for themselves, though. So has Nursultan Äbishuly Nazarbayev of Kazakhstan, who has used the services of none other than Tony Blair to promote his country’s booming energy sector. So have the Communist rulers of Cambodia, who are quickly opening their country to energy exploration and making a fortune. The major oil companies understandably don’t talk about this much, but The Secret World of Oil quotes several executives who admit to dealing with shady characters, but explain there is simply no other way to do business in much of the world. The result is a vicious cycle of corruption, which becomes more and more pervasive and destructive. Informative, entertaining, and refreshingly non-preachy, The Secret World of Oil will change the way you look at the industry, and the legal systems which govern them. Or, in many nations, don’t govern them.
POSTSCRIPT: after this review was originally posted, Louisiana Governor Bobby Jindal signed legislation preventing state bodies from pursuing legal action against oil and gas producers, and Foreign Policy published an eye-opening piece about how the government of oil-rich Azerbaijan is throwing its weight around.
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America’s mix tape

After a lengthy illness – and a brutal family feud which included his wife throwing hamburger meat at his children while recurring Bible verses – iconic radio host and voice actor Casey Kasem has died at age 82.

Listening to Kasem’s American Top 40 every Saturday (on OZ FM in St. John’s, 10AM to 2PM) was my weekend ritual growing up, and judging from the overwhelming reaction on Facebook and Twitter, a lot of Generation Xers did the same.   This tweet from The Dissolve’s Scott Tobias explains the unique appeal of Kasem’s pioneering countdown show:

American Top 40 – and its imitators, like the Rick Dees Weekly Top 40 (inevitably broadcast on the number-two station in your town, like VOFM/Magic 97 back in St. John’s) and even Casey’s Top 40, founded by Kasem after he left AT40 following a contract dispute – counted down the 40 popular songs in America regardless of genre.  And it wasn’t just pop – in the mid- to late-80s a typical countdown would include hard rock acts, metal bands, boy bands, “alternative” groups, hip-hop artists, rappers, R&B and soul singers, country performers, even the occasional crossover from jazz or contemporary Christian music.

American Top 40 is still around, now hosted by Ryan Seacrest. The few times I’ve listened to it on recent years, however, there seems to be remarkably little diversity in the kind of music that makes it to the countdown.

I doubt know if music consumers’ tastes have changed, or if the show’s chart methodology has changed. But the modern AT40 listener can listen to the whole show without once being introduced to anything from a musical genre he or she didn’t usually pay attention to.

These days, we have satellite radio and thousands of online live streams to choose from, and it’s wonderful. But it does feel like we’ve lost something, in that we no longer have to be exposed to music we aren’t familiar with.  I have SiriusXM in my vehicle, and in theory I could be trying out dozens of channels featuring songs, and entire genres, I’ve never heard.  In practice, I usually go back and forth between the 80s and 90s channels.

That’s true not just for music, but for almost every kind of pop culture, and even news and politics. We aren’t all watching the same TV shows anymore, and we certainly aren’t getting our news from the same sources anymore.

More choice is a good thing, but it does allow us to go our entire lives without ever having to come across and put up with things we dislike or disagree with. This might make us feel more comfortable, but it also keeps us from growing like we should.

They don’t make ‘em like Casey Kasem’s countdown shows anymore, and with that, we’ve lost more than we think.

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