Justices Strike Down 'Rescue Funds' Provision in Public Campaign Financing Laws

This op-ed was originally published by the Los Angeles Daily Journal.

By Associate Clinical Professor Jessica A. Levinson

This week, the U.S. Supreme Court took away the power of lawmakers on all levels of government to craft public campaign financing programs that best meet their needs. In Arizona Free Enterprise Club's Freedom Club PAC v. Bennett (aka McComish v. Bennett), Chief Justice John G. Roberts Jr., writing for a 5-4 majority, struck down the constitutionality of so-called "rescue" or "trigger" funds provisions. The case focused on Arizona's public campaign financing law, but has implications for jurisdictions throughout the nation.

Rescue provisions provide publicly financed candidates with additional taxpayer funds in the event that their privately financed opponents or independent expenditure groups spend over a threshold amount of money. One purpose of these provisions is to allow publicly financed candidates to remain competitive when they are faced with relatively high spending privately financed opponents, or independent expenditure groups that spend money against privately financed candidates or in favor of their opponents.

The Court's only analysis of public campaign financing programs came in its seminal 1976 decision in Buckley v. Valeo. The Buckley Court upheld the public campaign financing program at issue - which provided taxpayer funds for party nominating conventions, and primary and general election presidential candidate campaigns - finding that public financing can serve many important governmental purposes.

Calif. State Senators introduces legisliation to ban death penalty in wake of Loyola of Los Angeles Law Review article

California State Sen. Loni Hancock introduced legislationthis week banning the death penalty in California in part because of information contained in the "Executing the Will of the Voters?: A Roadmap to Mend or End the California Legislature's Multi-billion-dollar Death Penalty Debacle," a recently circulated law review article set to appear in a forthcoming edition of the Loyola of Los Angeles Law Review. It was written by Judge Arthur L. Alarcón, senior judge, U.S. Court of Appeals for the Ninth Circuit, and Paula M. Mitchell, an adjunct professor at Loyola Law School. Mitchell, a 2002 alumna of the Law School, is a cler to Alarcón.

Faculty workshop series presents Professor Laurie Levenson

Professor Laurie Levenson, William F. Rains Fellow and David W. Burcham Professor of Ethical Advocacy, presented "Conflicts of Interest for Investigators" during Loyola's Faculty Workshop Series on June 30th, 2011 in Founders 236.

Wal-Mart - Beyond Employment Discrimination Law

By Professor Georgene Vairo

This is another installment in the Summary Judgments summer series, "The Headline Club," in which Loyola Law School professors will discuss legal issues ripped from the front page.

My dear colleague, Michael Waterstone, already has weighed in on the Supreme Court's decision in Celotex Corp. v. Catrett, Anderson v. Liberty Lobby, and Matsushita Elec. Industrial Co. V. Zenith Radio it adopted an approach to Rule 56 that, while sensible, overturned the prevailing view that summary judgment ought to be granted sparingly because a plaintiff's right to jury trial was at stake. The Court piled on when it decided Kumho Tire Co., LTD v. Carmichael, the Court made the district court a gatekeeper-- keep out the junk science that plaintiffs use to defeat motions for summary judgment. Although empiricists disagree as to the extent to which the 1986 and Daubert trilogies resulted in more summary judgments or not, they certainly sent a message.

I said above that the 1986 Trilogy was "sensible" because I believed in what Justice Rehnquist said in Celotex v. Catrett --summary judgment should be "put up or shut up" time. If a plaintiff has had enough time for discovery, and it is apparent that it lacks evidence on a material issue of fact, there really is no reason for a trial. Although I have always bought into that notion, there was much loose and troubling language in the Trilogy cases. To paraphrase: "District courts ought not evaluate the evidence-- that is the province of the jury-- but they ought to take into account the quantum and quality of the evidence." Is that not weighing? In one of the cases (Matsushita), an antitrust case, the Court said that when deciding whether to grant summary judgment, the court ought to look at whether the plaintiff's claims are "plausible."

The bad news (and good news) about your medical privacy

By Associate Professor Aaron Caplan

On June 23, 2011, the U.S. Supreme Court issued its 6-3 decision in Sorrell v. IMS Health, Inc. I previously wrote about the case here. In the new decision, the Court invalidated a Vermont law that prohibited the sale and use for marketing purposes of pharmacy records that reveal doctors' drug prescribing practices without the doctors' permission. The Court viewed Vermont's law as a ham-handed attack on a particular type of commercial speech, so its ordinarily laudable free speech impulses kicked in. However, it failed to recognize the legitimacy of protecting informational privacy as a governmental goal, and indeed doubted that the law would even advance doctors' privacy. This surely comes as a surprise to doctors, who now find that data brokers have a constitutional right, at least in some settings, to buy and sell their information for commercial gain without their knowledge or consent.

The Court's decision contains mostly bad news for those who value individual control over the commodification of personal information. However, it leaves open the possibility that the real flaw in Vermont's law was not that it attempted to protect too much privacy, but that it protected too little.

THE BAD NEWS.

1. The Court revealed little understanding of why violations of informational privacy are troublesome. Evidence at trial showed that many doctors felt violated when they learned that pharmacies were selling information about the doctors' prescriptions to drug manufacturers behind their backs, alarmed that the manufacturers were secretly using the information to manipulate them during visits by pharmaceutical representatives, and outraged that the records could be used as a back-door method of determining their confidential and privileged advice to their patients. The biggest harm to privacy was not, as the Court seemed to think, that a pushy sales representative might come to a doctor's office. The harm was that doctors reasonably felt that their lives and livelihoods were under surveillance for the benefit of others. Overall, the Court showed little enthusiasm for informational privacy as a desirable component of a good society, and no recognition at all that it is a value of constitutional stature.

Four Loyola professors on SSRN top 25 list

Loyola Law School Professors Ellen Aprill, Jennifer Kowal, Katie Pratt and Ted Seto are among the top 25 U.S. tax professors as ranked by downloads on the Social Science Research Network.

Wal-Mart and the Future of Employment Discrimination Class Action Law

By Associate Dean Michael Waterstone

This is another installment in the Summary Judgments summer series, "The Headline Club," in which Loyola Law School professors will discuss legal issues ripped from the front page.

On Monday, the Supreme Court decided Wal-Mart v. Dukes, reversing the Ninth Circuit's certification of a historically large class of women claiming sex discrimination against Wal-Mart. Employment discrimination lawyers have been eagerly awaiting the result in this case, realizing that either way, it would be determinative of the future of employment discrimination class actions (and maybe even class actions in other areas of law).

Other commentators whose views I respect have been quicker than me, and already weighed in on various parts of the Wal-Mart opinion - noting the Court's adverse reaction to the potential size and complexity of the class, the commonality analysis, and the Court's treatment of the social science evidence. Following up on an earlier post about this case, I write here to add my own voice to this chorus.

One issue in Dukes was whether this action - brought for injunctive relief, but also including claims for backpay - could be certified as a class action under 23(b)(2). This turned out to not be much of a fault line, as the Court unanimously held that claims for monetary relief may not be certified under Rule23(b)(2), holding that the claims for backpay were not incidental to the requested injunctive or declaratory relief. Fair enough: plaintiffs had tried to finesse this by not including claims for compensatory damages, which there was clear consensus was not enough. Future plaintiffs attempting reform litigation could choose to completely forego damage claims and focus on injunctive relief. Assuming some lawyer somewhere would take that case, but for the second part of the opinion - discussed below - this possibility would technically be open.