A Tribute to Marc Poirier

marc-poirier-176x220I want to mark the passing of a former colleague of mine, Seton Hall’s Marc Poirier. Marc was an exceptional scholar, teacher, and colleague.

Marc was a deeply learned man, conversant in areas ranging from the jurisprudence of interpretation to the science of global warming. He wrote on property, environmental law, and civil rights, and combined the fields in innovative ways. His “Virtues of Vagueness in Takings Law” was both widely cited, and elegantly argued. Essays like “Science, Rhetoric, and Distribution in a Risky World” were philosophically informed readings of fundamental controversies in environmental policy. Throughout his scholarship, there was a concern for the marginal: the victims of environmental racism, sexual orientation discrimination, climate change, and many other contemporary scourges. But there was also a wise awareness of the limits of law and the complexities of advocacy.

It is thanks to the efforts of people like Marc that marriage equality has come to America. I say this not only because an article like “The Cultural Property Claim in the Same-Sex Marriage Controversy” clarified the stakes of the term “marriage” so eloquently and empathetically. Marc’s service and faculty advising modeled, for all of us, a patient way of working for justice in slow-moving courts and agencies, and in institutions affiliated with a “church that can and cannot change.” Marc explored gender and LGBTQ equality in so many dimensions: legal, sociological, anthropological, economic. I have little doubt that his work will be consulted again and again, as scholars reflect on his illuminating efforts to balance liberty and equality, tradition and innovation, individual self-expression and institutional self-governance.

Marc was also deeply involved in the community. He devoutly maintained a meditation practice, both as a leader of group meditation sessions and a member of area sanghas. He offered his teaching to all at Seton Hall, and organized sittings and other opportunities for us to experience meditation’s compelling combination of relaxation and focus. While some might see meditation as an unlikely practice for lawyers, Marc helped us understand both professional judgment and spiritual practice as complementary ways of gaining a broader perspective on reality. Groups like the Association for Contemplative Mind in Higher Education have shown how important these opportunities can be for both faculty and students alike. I will always be grateful to Marc for bringing these practices to Seton Hall.

Marc was also a very committed teacher. He went above and beyond in his administrative law class to include extra material on state and local government that few other courses in the area covered. The standard for his seminars was exceptionally high, and he’d have frequent meetings with students to help them perfect their papers. He was available all the time, and always happy to talk.

Finally, I will always remember Marc as wonderfully effervescent. He was such a delight to have lunch or dinner with. And he would talk about just about anything: how to argue a difficult point in an article, how to navigate administrative mazes, or what were the best parks and beaches in New Jersey. He was such a good listener. I think this was part of his meditative practice: to open himself up to whatever colleagues or students wanted to chat about, knowing exactly when to inject a note of skepticism, a considered reflection, a guffaw.

I will so miss those conversations with Marc. There is some small sense of consolation in reading his articles, artifacts of a gentle yet meticulous intellect making connections among concepts that only someone of his deep understanding and learning could accomplish. But I wish we’d had more time to learn from him. I hope I can do some justice to his memory by trying to imitate the empathy, reflectiveness, and openness he showed to so many.


Formalities of Judicial Voting

I’ve started drafting my next book (on the Bill of Rights), and I’m not sure how that will change my blogging.  Maybe I will post less often, maybe my posts will focus on the Bill of Rights–we’ll see.

For now, though, I want to pose this question.  What must a Supreme Court Justice do to vote on some matter before the Court?  In other words, suppose a Justice is ill but still wants to participate.  Attending oral argument is not a requirement–there are many past instances of a Justice voting on cases based on listening to argument on tape.  What about attending the Court’s conference?  (Senators and Representatives must be physically present on the floor to vote).  I don’t think there is any such need–you could vote by memo.  Do you have to read the briefs?  No.

In the end, I think the answer is that a Justice’s vote counts so long as the other Justices think that it should count.  This would seem to be the precedent set by the way that the Court handled the aftermath of Justice William O. Douglas’s stroke at the end of his tenure.  For months Justice Douglas was clearly incapacitated, but he kept on trying to vote.  The other Justices eventually reached an understanding that they would never let his vote be decisive (until he resigned).

One further question–can Congress answer this question?  There is already a quorum requirement set by statute (6 Justices).  Can Congress go further and establish, for instance, that a Justice must attend oral argument to vote on an argued case?


FAN 70.1 (First Amendment News) Amarin v. FDA –Important Commercial Speech Case May be Decided Soon

The FDA has long sought to ban manufacturers from promoting off-label uses of approved drugs and medical devices.  In taking the position that manufacturers and their agents cannot promote off-label uses, the FDA suggests they are safeguarding the public from misbranded medical products and ensuring that manufacturers do not circumvent the drug and device approval processes. Critics, however, have long contended that the FDA’s position violates the First Amendment to the extent it prohibits truthful speech. — Evelien Verpeet, ReedSmith, June 18, 2015

Should pharmaceutical companies be able to advertise drugs for uses not  approved by the FDA? It seems like a no brainer — of course not! But as with so many other things in life and law, the answer (especially the First Amendment answer) is not so obvious.

→ The caseAmarin Pharma, Inc. v. United States Food & Drug Administration (Dist. Ct., S. Dist. NY).

→ Judge: The matter was argued before U.S. District Judge Paul A. Engelmayer on July 7, 2015. A ruling is expected soon.

Unknown5→ Plaintiff’s Claim: “Amarin Pharma wants to provide healthcare professionals with truthful, non-misleading information about its prescription drug Vascepa®, and four doctors who want to receive that information, as they determine when and whether to prescribe that drug. If Amarin provides that information, however, it is at high risk of criminal and civil sanctions being sought against it by the United States.”

U.S. Atty. Preet Bharara

U.S. Atty. Preet Bharara

→ Government’s Claim: “Plaintiffs seek a court order that would allow Amarin to distribute its drug Vascepa under circumstances which could establish that Amarin intends an unapproved new use for Vascepa, i.e., a use for which FDA has not determined that the drug is safe and effective. But Plaintiffs’ legal arguments strike at the very heart of the new drug approval process, and a court decision in Plaintiffs’ favor has the potential to establish precedent that would return the country to the pre-1962 era when companies were not required to prove that their drugs were safe and effective for each of their intended uses.”

The FDA has long banned promotion of drugs for uses other than those it has approved. Yet so-called off-label uses are legal and account for about 20% of all prescriptions. Some off-label uses of drugs have even become the standard of care for particular conditions. But the drug’s manufacturer and its agents—and only them—cannot legally talk about this. Patients can—and do—discuss off-label uses of drugs endlessly in online forums. Doctors certainly exchange information about these uses. — David B. Rivkin Jr. &  Andrew Grossman, WSJ, May 21, 2015

 P’s Counsel: Floyd Abrams is the lead counsel for the Plaintiff with Joel Kurtzberg and Michael B. Weiss (see here re P’s complaint)

→ Gov.’s CounselPreet Bharara is the attorney for the Defendant along with Ellen London and Benjamin Mizer

→ Amicus Briefs: Pharmaceutical Research and Manufacturers of America and Washington Legal Foundation — both in support of the Plaintiff / Public Citizen in support of the United States

→ FDA Letter to Judge Engelmayer, June 8, 2015 (see here for a discussion of the mootness issue raised by this letter)

Excerpts from United States v. Caronia (2nd Cir. 2012) re off-label promotions 

The government’s construction of the FDCA asprohibiting off-label promotion does not, by itself, withstand scrutiny under Central Hudson’s third prong [that the regulation directly advance the government’s interests] . . . . The last prong of Central Hudson requires thegovernment’s regulation to be narrowly drawn to further the interests served. . . Here, the government’s construction of the FDCA to impose a complete and criminal ban on off-label promotion by pharmaceutical manufacturers is more extensive than necessary to achieve the government’s substantial interests. . . . We conclude simply that the government cannot prosecute pharmaceutical manufacturers and their representatives under the FDCA for speech promoting the lawful, off-label use of an FDA-approved drug. Judge Denny Chin for the majority.

* * * *

[T]he majority calls into question the very foundations of our century-old system of drug regulation. I do not believe that the Supreme Court’s precedents compel such a result. . . . If drug manufacturers were allowed to promote FDA-approved drugs for non-approved uses, they would have little incentive to seek FDA approval for those uses. — Judge Debra Ann Livingston dissenting

Summary of Amarin’s First Amendment Arguments Read More


Citing Oral Argument Questions

I want to raise a question about the citation of statements made by Justices at oral argument.  This never used to happen, in part because such transcripts were either unavailable or imprecise.  In recent years, though, you see Supreme Court opinions that cite statements made by a Justice at argument.

My question is–what purpose is served by this?  Citing something a lawyer said at argument might be valuable.  If counsel takes a position there, that can be fairly treated as a position in the litigation even if it is not stated in the brief.  But a Justice asking a question or making a statement is not taking a position.  Why, then, have the Justices taken to citing other questions?

I may look into this further, as I find the issue of transparency (or lack thereof) about oral arguments and hand-down days fascinating.

Three on the Gig Economy

July has been a big month for public discussion of the gig economy. For those interested in the issue, here are three of my recent pieces:

1) Is Your Digital Boss Cheating You? (part of a collection of “5 Ways to Take Back Tech”)

2) Serfing the Web: On-Demand Workers Deserve a Place at the Table (with Trebor Scholz). If you have comments for the FTC on the gig economy, their deadline is August 4.

3) Uber and the lawlessness of ‘sharing economy’ corporates (with Siva Vaidhyanathan)

In related news: for anyone interested in the future of legal regulation of the interaction between software and work, please submit an abstract to “Unlocking the Black Box: The Promise and Limits of Algorithmic Accountability in the Professions” (due by August 23).


Roundup: Law and Humanities 07.30.15

There’s a lot going on in law and the humanities these days. Here’s a sampling.

First, an opportunity for publication:

Fairleigh Dickinson University Press invites the submission of proposals for books, monographs, or essay collections in the interdisciplinary fields of humanistically-oriented legal scholarship for the series The Fairleigh Dickinson University Press Series in Law, Culture and the Humanities.

Possible topics range from scholarship on legal history; legal theory and jurisprudence; law and critical/cultural studies, law and anthropology, law and literature, law and film, law and society, law and the performing arts, law and communication, law and philosophy, and legal hermeneutics.

Proposals must include: a description of the issue/s you intend to explore and the method/s you will use; a comparison and contrast with existing books on similar or related topics; a table of contents and a precis of what each chapter aims to cover; a description of the book’s target market/s; the author’s/authors’ or editor’s/editors’ curriculum vitae; if it is a collection of essays, a compiled and alphabetized list of short biographies of prospective contributors, and a list of three experts in the field capable of assessing the value of the project.

The series also welcomes submissions of completed monographs and essay collections; kindly make an inquiry prior to sending over the completed book or collection of essays, together with the author’s curriculum vitae and three suggested experts, if you are the author/authors. If you are an editor/editors of a completed collection of essays, please include a compiled and alphabetized list of short biographies of prospective contributors, together with your curriculum vitae and list of possible experts. Essay collections must be of previously unpublished material. Conference sessions, properly edited and often expanded by calls for papers, into essay collections, are also welcome.

Referees may or may not be from the submitted list of suggested experts. The series benefits from the advice of an international board of leading scholars in the field. Proposals may be sent to:

Caroline Joan S. Picart, Ph.D., J.D., Esquire
Tim Bower Rodriguez, P.A.
601 N. Ashley Drive, Suite 310,

Tampa, FL 33602

Email: cjpicart@gmail.com

Read More

Air Traffic Control for Drones

8435473266_16e7ae4191_zRecently a man was arrested and jailed for a night after shooting a drone that hovered over his property. The man felt he was entitled (perhaps under peeping tom statutes?) to privacy from the (presumably camera-equipped) drone. Froomkin & Colangelo have outlined a more expansive theory of self-help:

[I]t is common for new technology to be seen as risky and dangerous, and until proven otherwise drones are no exception. At least initially, violent self-help will seem, and often may be, reasonable even when the privacy threat is not great – or even extant. We therefore suggest measures to reduce uncertainties about robots, ranging from forbidding weaponized robots to requiring lights, and other markings that would announce a robot’s capabilities, and RFID chips and serial numbers that would uniquely identify the robot’s owner.

On the other hand, the Fortune article reports:

In the view of drone lawyer Brendan Schulman and robotics law professor, Ryan Calo, home owners can’t just start shooting when they see a drone over their house. The reason is because the law frowns on self-help when a person can just call the police instead. This means that Meredith may not have been defending his house, but instead engaging in criminal acts and property damage for which he could have to pay.

I am wondering how we might develop a regulatory infrastructure to make either the self-help or police-help responses more tractable. Present resources seem inadequate. I don’t think the police would take me seriously if I reported a drone buzzing my windows in Baltimore—they have bigger problems to deal with. If I were to shoot it, it might fall on someone walking on the sidewalk below. And it appears deeply unwise to try to grab it to inspect its serial number.

Following on work on license plates for drones, I think that we need to create a monitoring infrastructure to promote efficient and strict enforcement of law here. Bloomberg reports that “At least 14 companies, including Google, Amazon, Verizon and Harris, have signed agreements with NASA to help devise the first air-traffic system to coordinate small, low-altitude drones, which the agency calls the Unmanned Aerial System Traffic Management.” I hope all drones are part of such a system, that they must be identifiable as to owner, and that they can be diverted into custody by responsible authorities once a credible report of lawbreaking has occurred.

I know that this sort of regulatory vision is subject to capture. There is already misuse of state-level drone regulation to curtail investigative reporting on abusive agricultural practices. But in a “free-for-all” environment, the most powerful entities may more effectively create technology to capture drones than they deploy lobbyists to capture legislators. I know that is a judgment call, and others will differ. I also have some hope that courts will strike down laws against using drones for reporting of matters of public interest, on First Amendment/free expression grounds.

The larger point is: we may well be at the cusp of a “this changes everything” moment with drones. Illah Reza Nourbakhsh’s book Robot Futures imagines the baleful consequences of modern cities saturated with butterfly-like drones, carrying either ads or products. Grégoire Chamayou’s A Theory of the Drone presents a darker vision, of omniveillance (and, eventually, forms of omnipotence, at least with respect to less technologically advanced persons) enabled by such machines. The present regulatory agenda needs to become more ambitious, since “black boxed” drone ownership and control creates a genuine Ring of Gyges problem.

Image Credit: Outtacontext.


FAN 70 (First Amendment News) 10 Little known or long forgotten facts about the First Amendment

Since the news slows down in the summer, I thought I’d share some little known or long forgotten facts about the First Amendment. They concern everything from the text of the First Amendment / to Holmes and his 1919 opinions / to the first woman who argued a free-speech case in the Supreme Court / to Robert L. Carter’s ideas about freedom of association and his subsequent victory in NAACP v. Alabama / to the opinion Richard Posner wrote in NAACP v. Button / to the author of the famous line in Sullivan / to Ralph Nader and the origins of the modern commercial speech doctrine and more.

* * *  *

  1. Does any Justice (originalists, textualists, and others, living or dead) have any idea of what exactly the word abridge means as used in the First Amendment? To the best of my knowledge, no member of the Court (including Justices Hugo Black, Antonin Scalia, and Clarence Thomas) has ever devoted any serious ink to this definitional question. (see here for a discussion of the word).
  2. Justice Oliver Wendell Holmes was not the first person to use the phrase clear and present danger in a legal context. As Professor Lucas Powe has observed, in “the summer of 1918, Benjamin W. Shaw, defending (unsuccessfully until appeal) an Espionage Act case, uttered the following during his closing argument to the jury”: Under all of the facts and circumstances disclosed by the evidence in this case, how can it be said that he wilfully [sic] said and did the things alleged? How can the words used under the circumstances detailed in the evidence have the tendency to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent?” (John Fontana, 12 American State Trials 897, 932 (John D. Lawson, editor) (F.H. Thomas Book Co., 1920) (emphasis added), quoted in L. A. Powe, “Searching for the False Shout of ‘Fire,’” 19 Constitutional Commentary 345, 352, n. 61 (2002)
  3. Notwithstanding what the Court did in Brandenburg v. Ohio (1969), the holdings in Schenck v. United States (1919), Debs v. United States (1919) and Dennis v. United States (1951) have never been formally overruled.
  4. In his concurrence in Whitney v. California (1927), Justice Louis Brandeis flagged his substantive agreement with the majority’s judgment: “[In this case] there was other testimony which tended to establish the existence of a conspiracy, on the part of members of the International Workers of the World, to commit present serious crimes, and likewise to show that such a conspiracy would be furthered by the activity of the society of which Miss Whitney was a member. Under these circumstances, the judgment of the state court cannot be disturbed.” (emphasis added)
  5. The first woman to argue a free speech case (though not a First Amendment case) in the Supreme Court was Olive Rabe — the case was United States v. Schwimmer (1929). It was nearly 40 years before another woman represented a rights claimant in a free-speech case in the Supreme Court. The woman was Eleanor Holmes Norton, a woman of color; the case was Carroll v. President & Commissioners of Princess Anne (1968). As with Olive Rabe, few if any know or remember that Eleanor Holmes Norton, now a member of Congress, was the first woman to represent a rights claimant in the Supreme Court in a First Amendment free-expression case. (Collins & Hudson: “To the high court: Olive Rabe representing Rosika Schwimmer“).
  6. the young Robert L. Carter

    the young Robert L. Carter

    Robert L. Carter successfully argued NAACP v. Alabama (1958). In the NAACP’s brief and in the course of oral arguments (Jan. 15-16, 1958) Mr. Carter stated: “We contend that the order to require us to disclose the list of our members is a denial of our right — the right of a corporation and the right of its members — to free speech and freedom of association and is protected by the First Amendment.” Years earlier Mr. Carter wrote a post-graduate thesis on the First Amendment while at Columbia Law School, this after having received his J.D. from Howard University. (Collins & Chaltain, We Must not be Afraid to be Free)

    (See box below re Carter’s LLM thesis)

  7. Though Justice Brennan is formally credited with authoring NAACP v. Button (1963), the opinion was actually written by his law clerk Richard Posner. “That was one I did for Brennan,” Posner told Kenneth Durr in a 2011 interview.
  8. The famous prhrase, “debate on public issues should be uninhibited, robust, and wide-open,” originated with Stephen R. Barnett, one of Justice Brennan’s law clerks in New York Times v. Sullivan (1964). (Stern & Wermiel, Justice Brennan: Liberal Champion)
  9. For decades before before Citizens United (2010), most of the appellate challenges to campaign finance laws were brought by liberals, liberal groups, or labor unions. (Collins & Skover, When Money Speaks (2014))
  10. The emergence of the modern commercial speech doctrine was made possible by Ralph Nader’s group, Public Citizen. Virginia Pharmacy Board v. Virginia Consumer Council (1976) was successfully argued by Alan Morrison, who was then affiliated with Public Citizen. Earlier, Morrison had submitted an amicus brief to the same effect in Bigelow v. Virginia (1975).

The Three Freedoms

by Robert L. Carter

submitted in partial fulfillment of the requirements for the degree of Masters of Law in the Faculty of the School of Law, Columbia University.

August 1, 1941

TRO Granted in Online Adult/Escort Advertising Case Read More


Spelman College, Bill Cosby, and Mutual Intent in Pledges

Spelman College’s decision to terminate a $20 million program supported by Bill Cosby, embroiled in allegations of drug-related seduction, reminds us that donors and recipients mutually depend on good behavior  and shared intentions, which are imperiled about once a decade for most charitable organizations.

The problem can originate on either side, as where a recipient wishes to disaffiliate because a donor’s behavior or reputation becomes objectionable–as in the Spelman-Cosby case–or where a donor objects that a recipient is not using funds as intended–as in the 1995 case of  Yale University returning $20 million after alumnus Lee M. Bass complained that the school had not used the donation to create classes in Western civilization the donation called for.

Litigation does not often result, but when it does, it can be ugly. Negotiations and structured solutions are usually preferred. Take an example of each: Princeton University’s acrimonious litigation with the Robertson family and Lincoln Center’s friendly accord with the Fisher family over renaming Avery Fisher Hall at Lincoln Center.

22222Princeton U. and the Robertson Family: Pyrrhic Victories for Each

In 1961, Charles and Marie Robertson made a $35 million endowment gift to Princeton for the purpose of educating graduate students for government careers. They embraced the spirit of the times, captured in President John F. Kennedy’s call to “Ask not what your country can do for you, but what you can do for your country.” Establishing the Robertson Foundation, Princeton invested the $35 million and used the rising investment income to fund such programs—along with many others outside the Wilson School. Indeed, the Robertsons’ gift—which grew to nearly $1 billion today—become a sizable component of Princeton’s overall endowment—about $15 billion today.

While Princeton administrators loved the large and seemingly flexible funding, the Robertsons’ children, who retained a role in overseeing the use of funds, objected. They insisted that Charles and Marie intended a specific and limited use of the funds, solely for training in government careers at the Wilson School. Unable to resolve the disagreement amicably, the Robertsons sued the University in 2002, seeking to terminate the gift and recover the principal.

In the acrimonious litigation, the Robertson family said the university allocated $250 million of foundation funds to non-foundation pursuits, including a new sociology department facility, international affairs programs, and public policy studies—none of which focused solely on training for careers in public service at the Wilson School. The family contended that the University commingled foundation funds with general university funds with the result of disguising how foundation funds were used.

Princeton countered that the University was a complex institution with multiple interconnected missions that result in overlap between Wilson School government careers and broader programming on public and international affairs. It argued that the narrow literal and historical reading of the donor’s intent should yield to a contextual, flexible and evolving understanding of donor intent in relation to the University’s needs.

After six years of legal wrangling during which the two sides incurred legal fees exceeding $40 million each, they settled. The Robertson Foundation was dissolved, with $50 million going to fund a new “Robertson Foundation for Government” independent of Princeton and under the family’s auspices. The University also agreed to pay the Robertsons’ legal fees.

While both sides claimed victory, informed observers saw mostly mutual defeat, a pair of Pyrrhic victories. After all, while the Robertsons wrested control of a foundation from Princeton rededicated to their perception of their ancestors’ vision, it was far smaller than what the original endowment had become, and the bruising litigation did not entirely promote family unity. While Princeton retained control over most of the funds along with an expanded authority over allocation, the philanthropic community saw a bald assertion of power over donor intent that is likely to make some donors unwilling to trust the school with their beneficence.

11111Lincoln Center and the Fisher Family: Mutual Gains 

In 1973, Avery Fisher, founder of Fisher Electronics Co., donated $10.5 million to support the renovation of New York City’s Philharmonic Hall, the music house built in 1962 on Manhattan’s upper West side.  The pledge agreement provided that the Hall would be renamed Avery Fisher Hall and called for that title to “appear on tickets, brochures, program announcements and the like . . . in perpetuity.” The site has hosted innumerable grand classical musical performances over the decades, and the name is etched in the consciousness of many a New Yorker, and gave Mr. Fisher, who died in 1994, a bid to immortality. Read More


Strange State Constitutional Provisions

I’m reading through state bills of rights as part of my book research, so this may become a regular series.  Let’s start with Article One, Section 2b of the New Jersey Constitution, which states:

“The people reserve unto themselves the power to recall, after at least one year of service, any elected official in this State or representing this State in the United States Congress.”

So with respect to members of Congress, this clause is clearly invalid.  A state cannot recall a member of Congress before their term is up.  A state legislature could petition the relevant House of Congress and ask it to expel the member (that would trigger a special election), but the decision would rest there.

Now I suppose a state could hold a symbolic recall of a Representative or Senator (sort of like a vote of no confidence), but that seems odd.