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Twitter Stock Manipulation

I thought I would pose this hypothetical and see what people thought. Suppose the President took a short position in a stock. He then begins issuing a series of tweets attacking that company. The share prices fall and the President covers his short.

Is there any violation of law here?

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FAN 185 (First Amendment News) Nearly $2 million awarded in anti-SLAPP case involving Sheldon Adelson

The case is Adelson v. Harris (S.D., N.Y., 12 Civ. 6052 (JPO) (March 29, 2018). The matter involved a claim by “billionaire casino magnate Sheldon G. Adelson against the National Jewish Democratic Council for a 2012 online petition that stated Adelson personally approved of prostitution in his Asian casinos.” In the latest round of this case, and after trips to the Second Circuit and the Nevada Supreme Court, Mr. Adelson lost yet again.

Here are a few excerpts from Judge J. Paul Oetken’s recent order in Adelson v. Harris:

Sheldon G. Adelson

“This is a defamation action filed by Sheldon Adelson arising out of the 2012 presidential campaign. Adelson brought suit against David A. Harris, Marc R. Stanley, and the National Jewish Democratic Council (“NJDC”) (together, “Defendants”) for libel based on a publication on NJDC’s website in July 2012. This Court dismissed Adelson’s complaint in 2013, and that dismissal was affirmed by the Second Circuit following a certification of questions to the Nevada Supreme Court. Presently before the Court is Defendants’ motion for attorney’s fees and costs.”

Lee Levine (one of the lawyers for the Defendants)

“In 2013, this Court dismissed Adelson’s complaint under both Rule 12(b)(6) of the Federal Rules of Civil Procedure and Nevada’s anti-strategic litigation against public participation (“Anti-SLAPP”) statute, Nev. Rev. Stat. § 41.635–670. The Court also concluded that Defendants were entitled to reasonable attorney’s fees and costs under Nevada’s Anti-SLAPP statute, Nev. Rev. Stat. § 41.670(1). See Adelson v. Harris, 973 F. Supp. 2d 467 (S.D.N.Y. 2013). . . .”

“The Nevada Supreme Court answered [the common law] questions [posed to it] in a manner consistent with this Court’s earlier decision. See Adelson v. Harris, 402 P.3d 665 (Nev. 2017). The Second Circuit then affirmed this Court’s decision dismissing the complaint. See Adelson v. Harris, 876 F.3d 413 (2d Cir. 2017). . . .”

“The parties have briefed Defendants’ fee request in two rounds of filings: first for the district court phase of litigation (i.e., fees and costs incurred from the beginning of the case through September 30, 2013); and second for the appellate phase (i.e., fees and costs incurred from October 1, 2013, through December 31, 2017). Each is addressed in turn. . . .”

“Defendants’ application for attorney’s fees and costs pursuant to Nev. Rev. Stat. § 41.670 is GRANTED. Plaintiff Adelson is hereby ordered by pay to Defendants the amount of $1,909,476.50 in fees and $55,716.64 in costs, for a total of $1,965,193.14.”

Counsel for Defendants

Messrs. Levine and Berlin led a team of lawyers from Ballard Spahr (formerly  Levine Sullivan Koch & Schulz). The other defense lawyers were:

Former American Icon contestant loses false-light claim

This from David L. Hudson, Jr., over at The First Amendment Encyclopedia:

Corey Clark

“Former American Idol contestant Corey Clark lost his false light claim against E! Entertainment Television, as a federal district court judge ruled he failed to show that the defendant acted with actual malice. . . .”

“Clark appeared on Season Two of American Idol and did well, making the top 10.  However, show producers disqualified him from the show after there was a report about Clark’s arrest in Kansas that he allegedly failed to disclose.”

“Clark later contended that he was romantically involved with Paula Abdul, music superstar and one of the three judges on American Idol.  Clark’s claim received widespread publicity, including a segment on ABC’s Primetime.” 

E! True Hollywood Story, a documentary series about music stars, did a story on Abdul and referenced the Clark controversy.  The documentary did not interview Clark.  However, the story did quote a USA TODAY reporter, stating: ‘At the end of the day maybe only the two of them [Clark and Abdul] know what really happened.'”

“The documentary did explain that Clark had been arrested but was cleared of the charges.” 

“Clark sued both E! Entertainment Television and Fox Broadcasting Company in federal court for two claims: (1) defamation and (2) false light invasion of privacy.   In 2014, a federal district court dismissed both claims against Fox and dismissed the defamation claim against E! Entertainment Television.   The only claim remaining was the false light invasion of privacy claim against E! Entertainment Television. . . .”

“On March 26, 2018, U.S. District Court Judge William L. Campbell, Jr. granted summary judgment to E! Entertainment Television and ruled against Clark on his false light claim in Clark v. E! Entm’t TV, LLC.  The court noted that Clark had the burden to show by clear and convincing evidence that E! Entertainment Television acted with actual malice. . . .”

Virginia’s restrictive ‘happy hour’ advertising rules challenged Read More

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Is Law Political? — A View from an appellate court litigator in India

The common judge is not an umpire anymore: neutral objective reasoning is impossible because the law does not operate in a vacuum. –– Rahul Unnikrishna

A television journalist sets his camera inside the premises of the Supreme Court in New Delhi, India, February 18, 2014. REUTERS/Anindito Mukherjee/File Photo

This from a review by Rahul Unnikrishnan in The Wire (India).

“In The Judge: 26 Machiavellian Lessons, Ronald Collins and David Skover strive to answer the question ‘is law political?’ in an unconventional way by dissecting the unpleasant hypocrisies of the common judge, who is a political actor.

“There are truths and there are unpleasant truths: unpleasant truths, especially about judges in a democratic society, are closely guarded, and not spoken about. Collins and Skover break the conventions and chart out 26 “tactics” the US judges use, which summarise the extent of judicial politics in the dispensation of justice.”

Rahul Unnikrishnan

“Machiavelli’s exposition of politics and an unrivaled analysis of the hues of tyrannical political power find its judicial equivalent (Juristocracy, as Ran Hirschl puts it in Towards Juristocracy) in this book. The chapters of this book have been modeled on The Prince – both have 26 chapters. Of course, the way the actors wielded power in those days were different; crass physical force is not required to assert power now. On the other hand, the judicial power exercised by judges is hard to contain as the law is an interconnected web of words that expands and shrinks depending upon the gravity of the underlying variables.”

“What is the nature of power a judge wields? Collins and Skover argue that judicial interpretation of the law is a power of great moment. Indeed, they rightly say that at some point, the interpretative power becomes power to make the law. How else can we but describe the judges of the Supreme Court of India than as “lawmakers”? The explosion of public interest litigations in India is nothing but a judicial revolt against the apathies of the legislature and the executive. Good or bad, this, according to Collins and Skover, will be a classic example of judges, through judicial innovations, translating his or her will into law.”

. . . .

“Chapter 7 (‘Carpe Diem: When to Embrace a Case’) of the book is based on the premise that power and glory sometimes wait for one to embrace them. Justice [Jagdish Singh] Khehar’s tenure as the Chief Justice of India is the best example in the Indian context. It is not a secret that Justice Khehar was quite obstinate in not constituting a bench to hear the challenge to the Aadhaar Act. And when Justice Khehar finally decided to constitute a bench, it so happened that the judgment was given on the last week of his tenure – suddenly, the Supreme Court recognised the existence of the right to privacy for Indian citizens.”

“Though Justice Khehar did not write his opinion in the judgment, he will now be praised by legal historians as the Chief Justice who constituted a nine-judge bench to hear the right to privacy issue. This is best described by the authors: ‘And when the time is ripe, one has to do little more than pick the fruits of fame.’ . . . .”

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More on the Constitution Day Address

Here is one portion of FDR’s 1937 Constitution Day Address that deserves attention:

The surest protection of the individual and of minorities is that fundamental tolerance and feeling for fair play which the Bill of Rights assumes. But tolerance and fair play would disappear here as it has in some other lands if the great mass of people were denied confidence in their justice, their security and their self-respect. 

This passage reflects a very British understanding of a Constitution (in other words, norms are more important than text). When thinking about the current state of our politics, though, tolerance and fair play are in short supply. This is a serious problem, more so than a defect in institutions or doctrine. A Supreme Court decision, for example, holding that excess partisan gerrymandering is unconstitutional treats the symptom rather than the cause. I am not sure how to restore these sentiments, though reaching out to those who lack confidence in their justice, security, and self-respect might be a good start.

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University of Toronto Law Journal Vol. 68, No. supplement 1

 

Special Issue: Artificial Intelligence, Technology, and the Law

University of Toronto Law JournalVolume 68, No. S1 

Articles: 

Introduction: Artificial intelligence, technology, and the lawSimon Stern

Law as computation in the era of artificial legal intelligence: Speaking law to the power of statisticsMireille Hildebrandt

Warming up to inscrutability: How technology could challenge our concept of lawBrian Sheppard 

Prediction, persuasion, and the jurisprudence of behaviourism – Frank PasqualeGlyn Cashwel

Transformative legal technology and the rule of law – Paul Gowder

How artificial intelligence will affect the practice of lawBenjamin AlarieAnthony NiblettAlbert H Yoon

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Drafts of the Constitution Day Address

My next article is going to be about Franklin D. Roosevelt’s address to mark the 150th anniversary of the adjournment of the Constitutional Convention. This speech is worth pondering for many reasons–both theoretical and current–that I will lay out in a set of posts. Before that, though, I’m going to share some interesting nuggets that I’ve found in the rough drafts of the speech that were cut from the final version.

Here’s one example. The second draft of the speech states:

“No one cherishes more deeply than I the civil liberties achieved by so much blood and anguish through many centuries of Anglo-American history. Indeed, I go further than the Framers of the Constitution. I insist that the Bill of Rights should be observed in the letter and the spirit not only by the Federal Government, the State Governments, and the local governments, but also by those in private places who have power over other men’s lives.”

This would have been the first presidential statement in favor of incorporation. To some extent, of course, it reflects where society was headed with respect to the Bill of Rights, though it took many decades and still falls short of this ideal.

Another passage (in a different draft) gloats over the “switch in time.”

“Whenever the Congress, expressing the public will has clashed with the Supreme Court on questions of great national legislative policy, ultimately the Constitution has been found to be on the side of the Congress. Once that vindication has had to come by war. Usually it comes by frank or covert reversal of decision. Only during this year, for instance, there have been striking examples of that usual type of vindication of the Constitution as a statesmen’s document in the decisions of the Supreme Court upholding State minimum wage laws for women, the Wagner Labor Relations Act and the Social Security Act. Each of those decisions was a reversal of previous decisions rendered by the same Court within a year.

Tonight as we celebrate the signing of the Constitution, we may rejoice that the recent decisions of the Court have temporarily vindicated it as a statesman’s rather than as a lawyer’s document. But that triumph is never permanently assured. And in these days, particularly, when the undemocratic concentration of economic power has brought with [it] a corresponding concentration of legal ability for hire against the democratic purposes of the Constitution, only the utmost vigilance and the utmost willingness to fight will guarantee the continuance of our statesman’s heritage.

Anyway, more to come.

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FAN 184 (First Amendment News) Institute for Free Speech releases free speech index on state campaign finance laws

The Institute for Free Speech has just released a 102-page report titled Free Speech Index – Grading the 50 States on Political Giving Freedom.  The foreword to the report was written by Bradley A. Smith (Chairman and Founder) and  David Keating (President). Below is a partial description of the report and an executive summary of it.

Bradley Smith & David Keating

Each of the 50 states has its own collection of campaign finance laws and regulations limiting the freedoms of speech, assembly, and petition. Many of these state laws are poorly written, complex, or both. Despite the advances made in constitutional protections for speech over the last decade, our politics, and campaign finance in particular, remains more highly regulated than at any time prior to the 1970s, and in some important ways more highly regulated than ever. Far from a “wild west” with no rules, arcane campaign finance rules govern the minutiae not only of almost every campaign, but of what ordinary citizens and the groups they belong to can say, and how and when they can say it.

To assess the impact of such speech regulation, we created the Free Speech Index. In the future, we hope to publish similar ratings of state laws on other types of restrictions on political speech. This first installment measures the freedom of individuals, political parties, and groups to contribute to causes and candidates they support.

Executive Summary

This installment of the Free Speech Index rates each state on how well it supports free speech rights in a core area of political participation: the rights of individuals and groups to contribute to and support the candidates and causes of their choice.

To assess each state in this area, we ranked the states on nineteen variables grouped into five categories:

  • Individual Freedom (the ability of individuals to give to candidates, parties, and political committees, known informally as PACs);
  • Party Freedom (the ability of political parties to give to or support their candidates);
  • Group Freedom (the ability of PACs to give to candidates and parties);
  • Inflation-Indexing Provisions; and
  • Union and Corporate Freedom (the ability of unions and corporations to donate to candidate campaigns).

States earn points in each category, which are then weighted and combined to produce a total score from 100 to 0 and a letter grade, from A+ to F.

Because the states and legislative districts vary widely in population, contribution limits were compared based on population. For example, a $1,000 per election contribution limit in a New Hampshire State House district with a roughly 2,500 voting-eligible population is much less restrictive than a $1,000 per election South Carolina limit where the State House district has over ten times the number of voters. We also had to account for the wide variety of ways in which states write campaign limit laws. For a full explanation of the five categories and how the scores are computed, see the Methodology section.

Eleven states received an A+ or A grade. The top 11 rated states overall were: Alabama, Nebraska, Oregon, Utah, and Virginia (each tied for #1), Mississippi (#6), Iowa (#7), Indiana (#8), and North Dakota, Pennsylvania, and Texas (each tied for #9). These 11 states are diverse in size, population, geography, and politics. They include large states (Texas), less populated states (North Dakota), eastern states (Pennsylvania), western states (Utah), blue states (Oregon), and red states (Alabama).

The best overall grade, A+, went to Alabama, Nebraska, Oregon, Utah, and Virginia. These five states permit individuals, political parties, and PACs to contribute unlimited sums to the candidates, parties, and causes of their choice. These states also allow unlimited donations from unions and businesses to candidate campaigns. Because none of these states impose limits, all received the same top grade.

The five lowest scores belong to Kentucky, West Virginia, Alaska, Colorado, and Maryland. In the end, eleven states receive an F, a sad commentary on the widespread existence of stringent restrictions on political giving across the country.

States in the middle of the rankings all have their own specific shortcomings. For example, Illinois and Nevada rank 29th and 30th in the Index, respectively. Both receive a C- grade. Yet, their limits are polar opposites. Nevada allows individuals to give unlimited amounts to parties and political committees, but imposes low limits on contributions from parties to candidates and fails to adjust these limits for inflation. Illinois allows parties to provide unlimited support to their candidates, and its limits are adjusted for inflation, but individuals can only give small amounts to parties and PACs.

First Amendment gerrymandering case to be argued in SCOTUS tomorrow 

Case:  Benisek v. Lamone 

Issues: (1) Whether the majority of the three-judge district court erred in holding that, to establish an actual, concrete injury in a First Amendment retaliation challenge to a partisan gerrymander, a plaintiff must prove that the gerrymander has dictated and will continue to dictate the outcome of every election held in the district under the gerrymandered map; (2) whether the majority erred in holding that the Mt. Healthy City Board of Education v. Doyle burden-shifting framework is inapplicable to First Amendment retaliation challenges to partisan gerrymanders; and (3) whether, regardless of the applicable legal standards, the majority erred in holding that the present record does not permit a finding that the 2011 gerrymander was a but-for cause of the Democratic victories in the district in 2012, 2014, or 2016.

Counsel

  • Michael Kimberly, Counsel of Record for Appellants
  • Steven M. Sullivan, Maryland Solicitor General, Counsel of Record for Appellees

Select Amicus Briefs 

Commentaries 

The Costs of Denying Free Speech on Colleges Campuses — Attorneys’ Fees Awards  Read More

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Digitization and Legal Research

Many people have discussed the impact of big data on legal research, but I just wanted to share an anecdote about how that affects me personally.

About eight years ago, I started researching my book on John Bingham. To do that, I had to travel to many archives and libraries and look at microfilm, rummage through old boxes, and the like. Now I am researching a book on Bushrod Washington. Almost everything is available in digital form. I can either obtain them online or get them from libraries and archives without traveling. There is still some leg work required (mainly, at Mount Vernon) but it’s far easier than a decade ago.

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Final Conclusion on the ERA

After researching the issue at some length, my conclusion is that Congress should not consider ratification of the ERA until such time as there is no doubt that 3/4ths of the states have ratified the amendment. Only then would Congress be acting responsibly if it decided that the time limit for ratification (imposed in the 1970s) should be repealed.

What I mean by this is that the rescissions that some states issued to their ratifications should be deemed valid. Thus, supporters of the ERA must either get some of those rescissions rescinded or get enough other states to ratify such that the rescissions become irrelevant.

I reach this conclusion for two reasons. First, ratification of the ERA will not be seen as legitimate if there is an open question about how many states ratified AND a question about whether the ratifications after the expiration of the timeline are valid. Second, there is no consistency whatsoever in saying that states cannot withdraw their yes vote for an amendment but that Congress can change the timeline for ratification. Either both decisions should be final (a plausible view) or neither (equally plausible). Saying that one is final but the other is not cannot, in my view, be justified.

What I have to decide now is whether I’m going to write all of this up in a paper or not. Part of me thinks that I should, but part of me wonders whether there is any point in doing so until another state ratifies. Right now, everybody agrees that 3/4ths of the states have not ratified the ERA. Perhaps that will never change.