Teleforum Preview: Regulatory Crimes: Clay v. U.S. Oral Argument by John J. Park, Jr.

Regulation by Litigation at the State Level

John J. Park, Jr. March 01, 2017

Last week, Peggy Little and the Competitive Enterprise Institute published Pirates at the Parchment Gates, in which she explained how the practice of state attorneys general entering into contingency fee contracts runs roughshod over at least three constitutional principles. Those contracts got their start in the tobacco litigation of the 1990s. After that experience left a bad taste in the mouths of many, the practice moved toward the shadows although it never disappeared. Average wholesale price litigation and other such schemes kept the practice alive until it reappeared in the recent climate change inquisition.

Little notes that, when state attorneys general enter into contingent fee contracts with private counsel, they: (1) end run the appropriation process in a constitutionally impermissible way that cannot be sanctioned by state statutes; (2) it creates pots of money that have not been legislatively authorized and are not subject to legislative control and accountability; and (3) the allow private firms to play a role in governmental investigations and prosecutions in violation of due process. Moreover, the contracts represent bad policy.


Agency Doesn't Need Public Permission to Withdraw Proposed Regulations
Photo Credit: NRDC (link)

Federal Regulation, Judicial Stays, and the Right to Appeal

J. Kennerly Davis, Brian Taylor Goldman January 03, 2017

The election results have raised serious doubts about the future of President Obama’s Clean Power Plan (“CPP” or “Plan”).  During the campaign, President-elect Trump repeatedly moved to kill the Plan outright.

There are, of course, many legal complexities associated with the requirements of the Clean Air Act and federal administrative procedure.  Observers differ about the options available to the new administration, and about whether the Plan will actually be repealed or simply modified to some extent. [Read More]


Supreme Court from right angle

Fix Venue - Fix Patent Litigation, Part II

Arthur Gollwitzer December 14, 2016

The Supreme Court's statement of the question to be resolved in this case seems to say it all: “the question in this case is thus precisely the same as the issue decided in Fourco: whether 28 U.S.C. § 1400(b) is the sole and exclusive provision governing venue in patent infringement actions and is not to be supplemented by 28 U.S.C. § 1391(c)."  The days of nearly 50% of all patent cases being filed in the Eastern District of Texas may be numbered. [Read More]


Photo Credit: By (Own work) [CC BY-SA 4.0 (], via Wikimedia Commons

Data Breach Damage Claims Puzzle Judges

Jonathan Keim July 05, 2016

A recent article in the Wall Street Journal (paywall) points out a legal issue that judges are increasingly facing as they consider class action lawsuits brought against companies that become victims of criminal hacking: 

Data breaches have forced judges to wrestle with a new notions of what it means to suffer an injury. Though cyberattacks against companies can cause widespread damage, any harm to customers is often hard to quantify and tough to trace, making it difficult for them to pursue redress in the courts.

In most cases, the economic damage falls on the primary victim of the hacking, i.e., the company whose systems are breached. In addition to any embarassment, the victim must also spend resources to investigate the hacker's entry point, identify the scope of the compromise, and purge the intruder from its systems.

If the hacker actually obtains data about individuals from the victim company, the victim company may also become a target for legal action from a variety of sources, including state attorneys general, the Federal Trade Commission, and class action lawsuits brought by private parties. As the article explains, plaintiffs bringing private cases often have a hard time showing standing and damage. That's because most of the time, there's no clear indication that the hacker used any particular person's information in a way that caused actual damage. 

Many of us expected the Supreme Court to clarify whether these kinds of suits can survive in Spokeo, Inc. v. Robins this year, but the Court dodged. So there's a good chance that the issue will be coming back up to the high court eventually.


Supreme Court of the United States

New Article: U.S. Army Corps of Engineers v. Hawkes

Katie McClendon March 16, 2016

Pacific Legal Foundation attorneys Damien Schiff and Mark Miller published an article in the Federalist Society Review on U.S. Army Corps of Engineers v. Hawkes, which will be argued at the Supreme Court later this month. Mark Miller blogs about the article here, highlighting the article's conclusion:

Questions of reviewability of EPA and Corps actions under the CWA have been in the federal courts for decades. Much of the case law has focused on the reviewability of pre-enforcement actions. For a host of reasons, before Sackett, and now Hawkes, the courts had consistently held that APA review is unavailable for these types of actions. The Supreme Court in Sackett and the Eighth Circuit in Hawkes correctly changed the trajectory of administrative law and hemmed in agencies that had long ago left the bounds of reasonableness. That is why the Supreme Court of the United States should affirm the Eighth Circuit’s wise decision in Hawkes—that case, like Sackett before it, recognized the need to protect due process and basic fairness, and to cabin the power of agencies that for too long have acted well beyond their constitutional limits.

Read the whole article.