Today in Supreme Court History: April 6, 1938

4/6/1938: United States v. Carolene Products argued.

Comments

[Dan Schiavetta]

Ashe v. Swenson, 397 U.S. 436 (decided April 6, 1970): double jeopardy bars trial as to break-in and robbery of second poker player when acquittal as to robbery of first was based on failure to identify defendant as the robber

United States v. Barnett, 376 U.S. 681 (decided April 6, 1964): contemnors (Governor and Lt.Gov. of Mississippi who flouted court order to admit black student to state university) not entitled to jury trial; 4 liberal Justices dissented (i.e., principled behavior on both sides)

Kansas v. Glover, 589 U.S. — (decided April 6, 2020): reasonable cause for stop because plates showed car belonged to driver with revoked license (and it turned out to be him; arrested for habitually driving without a license)

Corley v. United States, 556 U.S. 303 (decided April 6, 2009): 18 U.S.C. §3501, making confessions admissible if within six hours of arrest and found to be voluntary, did not replace McNabb-Mallory rule that confessions are inadmissible after “unreasonable delay” in arraignment

Jacobson v. United States, 503 U.S. 540 (decided April 6, 1992): Government kept mailing child pornography to defendant, then convicted him of possessing child pornography; conviction overturned because no showing he was “predisposed” to possess it (did they count how many days he had it before he threw it in the trash?)

Universities Research Ass’n v. Coutu, 450 U.S. 754 (decided April 6, 1981): no private right of action for back wages for federal contractor employees paid below “prevailing wage” as required by the Davis-Bacon Act because contract did not contain prevailing wage stipulations (then what’s the purpose of the Act anyway?)

Arnold v. North Carolina, 376 U.S. 773 (decided April 6, 1964): vacating murder conviction of black men because records showed that in 24 years only one black person has been selected for grand jury service

United States v. First Nat’l Bank & Trust Co. of Lexington, 376 U.S. 665 (decided April 6, 1964): merger of two major competing banks is per se violation of Sherman Act (resulting bank would be larger than all other banks combined)

New Jersey v. New York, 345 U.S. 369 (decided April 6, 1953): City of Philadelphia can’t intervene in interstate dispute (New Jersey and Pennsylvania objecting to New York’s diversion of Delaware River tributaries) because Pennsylvania is already a party (odd because New York City was already in the suit, as a defendant)

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (decided April 6, 1987): When I was in law school the $11 billion found against Texaco — the largest verdict ever — was much discussed. I said, “Can you imagine being the law firm that lost that case?” Since then, I’ve learned that “losing big” actually helps you because it makes you look like a “big player”. Anyway, the Court here exercises the Younger abstention and refuses to interfere with state enforcement proceedings, dismissing suit raising due process and Equal Protection issues which were not brought up in state suit

[SRG]

Re: Pennzoil v Texaco

There was an odd knock-on effect from this case. Getty bondholders had bought what they thought were AAA-rated bonds, and indeed they were. After Texaco took over Getty, the bonds were downgraded to A. And after the judgment, they were downgraded to junk status. As a consequence, holders of :US corporate eurobonds in general started selling them – so prices dropped sharply, and new US corporate eurobonds had to pay higher yields than before.

The concerns were that, given the size of the original take-over, almost no corporate was safe from a takeover leading to a downgrade, and that the US justice system could then randomly make a decision leading to a further downgrade. Up until then, eurobond investors, particularly in Europe, liked US corporate bonds because institutional memory reminded them that no US corporate had defaulted after WWII, whereas a number of sovereign governments had.

What fun we had in the eurobond market in the 80s!

[Dan Schiavetta]

What different worlds we were in!

At the time I was the director of a crisis center in a small town, fighting for a raise from $10,000 to $11,000, driving a rotted out Toyota, and I didn’t know any millionaires. Pretty sure my parents didn’t either.

I would read about the gamesters on Wall Street about wonder if they ever thought about the consequences of their actions. I was much affected by the movie “Rollover”.

[SRG]

Ha! My cousin Paul had a small role in "Rollover" as an Arab businessman. (Is that a role for a nice Jewish boy?)

[Dan Schiavetta]

A friend of mine (an unsuccessful singer-songwriter), had a wife who used to quip that the only reason she married him was so that someday she could meet Kris Kristofferson. She should have married your friend!

[Frank Drackman]

Love the wives who quip!

[John F. Carr]

I was confused by Ashe v. Swenson because it seems inconsistent with other double jeopardy cases. It is an outlier like Lambert v. California (defendant not liable for violating an ordinance she didn't know about, contradicting the general rule that every person is responsible for memorizing every page of every book of statutes or ordinances not to mention the Federal Register).

[Dan Schiavetta]

It doesn't seem inconsistent to me. To me, double jeopardy is a more powerful form of collateral estoppel -- where you don't need a prior determination of innocence (which our criminal justice system does not provide for) but simply a failure to find guilt beyond reasonable doubt.

[John F. Carr]

Quoting from Jacobson:

There followed over the next 2 1/2 years repeated efforts by two Government agencies, through five fictitious organizations and a bogus pen pal, to explore petitioner's willingness to break the new law by ordering sexually explicit photographs of children through the mail.

[Dan Schiavetta]

Someone wrote around that time (I think it was an article in Playboy) that “almost all child pornography is old material in the hands of government entrappers”. I wonder if that was true. It is a deadly weapon to use against someone you want to “get”, even if he’s totally innocent.

[John F. Carr]

Prevailing wage laws can be enforced by a pro-union Attorney General.

[John F. Carr]

A week after losing Pennzoil v. Texaco Texaco declared bankruptcy. Texaco settled the $11 billion case for $3 billion and emerged from bankruptcy almost exactly a year later.

[David Nieporent]

Universities Research Ass’n v. Coutu, 450 U.S. 754 (decided April 6, 1981): no private right of action for back wages for federal contractor employees paid below “prevailing wage” as required by the Davis-Bacon Act because contract did not contain prevailing wage stipulations (then what’s the purpose of the Act anyway?)

The government can enforce it. Just not individual workers.

[Dan Schiavetta]

If the government is so inclined, that is. Some administrations are perfectly happy to let workers go underpaid.

I wonder if workers can sue via qui tam (“private attorney general”)?

[David Nieporent]

Workers can absolutely bring FCA cases for violations of Davis Bacon. Two caveats: (1) the FCA requires false statements submitted to the government, not mere violations of the law; and (2) courts have generally limited it to true misrepresentations (e.g., "We paid them at this rate," when they didn't), rather than the misclassification of workers, on the grounds that under DBA it's up to the DOL, not the courts, to decide whether workers were misclassified.

[Syd Henderson]

A little surprised that Jacobson was 5 - 4. Thomas was the deciding vote. Ken Starr presented the government case.

[SRG]

Perhaps Thomas was sympathetic to a defendant receiving pornography 😉

[Dan Schiavetta]

I was going to put a snarky comment in but I changed my mind.

[Frank Drackman]

Let me get this straight, the USPS mails Kiddie Porn to a Citizen,
1: I'm surprised it got there, being the USPS and everything, there's a reason there's a term called "Going Postal"
2: None of you A-holes mail me any Kiddie Porn (I'm talkin' bout you "Reverend") so when I pick it up from my mailbox am I "in Possession"?? if I burn it once I see what it is am I "Destroying Evidence"
3: I'm a mature White Jewish Professional, don't really want to call the FBI to tell them I have Kiddie porn in my mailbox,

Everybody be hatin' on my man Clarence, this just shows he's got more Judicial chops in one of his Pubic Hairs than the "Wise Latina" has in her entire Metabolic Syndromic Body

Frank

[Dr. Ed 2]

Technically, the "right" thing to do is file a Form 1500 with the Post Office, and include the kiddie porn and the envelope -- but you do raise those questions.

https://about.usps.com/forms/ps1500.pdf

[Frank Drackman]

Much ado about filled milk

[Dr. Ed 2]

Filled milk was actually safer than regular milk because it had been cooked in the canning process.

While people mock "cow milking" degrees, reality is that dairy technology and safety has made *immense* advancements in the past century.

[SRG]

That's just what Big Dairy wants you to believe 😉

[Rev. Arthur L. Kirkland]

The beer industry gets left out of many conversations in this regard -- such as those involving Pasteur -- likely to try to protect schoolchildren from the truth.

[Frank Drackman]

all the smart kids went into Poultry Science. There's more to chickens than Dark/White!
https://agriculture.auburn.edu/students/academics/major-in-poultry-science/poul-pre-vet-med-pre-professional/

[Syd Henderson]

Surprised it was close. Entrapment seemed pretty clear.