Today in Supreme Court History: May 13, 1912

5/13/1912: Seventeenth Amendment is approved by the House of Representatives. The Senate approved it the prior month. The Seventeenth Amendment was ratified in 1913.

Comments

[Dan Schiavetta]

Apple v. Pepper, 587 U.S. --- (decided May 13, 2019): purchasers of apps at App Store are direct purchasers and therefore can sue Apple as a monopoly under the Clayton Act

Bowman v. Monsanto, 569 U.S. 278 (decided May 13, 2013): it is a patent infringement for a farmer to sell soybean seeds produced by plants grown from patented genetically modified soybean seeds

Brady v. Maryland, 373 U.S. 83 (decided May 13, 1963): prosecution must turn over to defendant all exculpatory evidence

Morris & Co. v. Skandinava Ins. Co., 279 U.S. 405 (decided May 13, 1929): no jurisdiction over insurance dispute where only connection with forum state (Mississippi) was reinsuring some risks there; policy at issue was issued in South America, loss occurred there, and defendant was based in another state (Louisiana)

United States v. Noland, 517 U.S. 535 (decided May 13, 1996): bankruptcy court can re-order priority of creditors but not as to the IRS which has statutory priority absent “inequitable conduct”

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (decided May 13, 1991): Age Discrimination in Employment Act of 1967 did not invalidate arbitration clause in securities representative's employment contract

Cochise Consultancy, Inc. v. United States ex rel. Hunt, 587 U.S. --- (decided May 13, 2019): statute of limitations for qui tam (“private attorney general”) action where the United States decides not to intervene still begins to run when the qui tam plaintiff first notifies the relevant federal official about it (here, contractors submitting fraudulent invoices for security guard work in Iraq) not when the qui tam plaintiff first found out out about it

44 Liquormart v. Rhode Island, 517 U.S. 484 (decided May 13, 1996): statute prohibiting advertising of liquor prices violated First Amendment

Kremen v. United States, 353 U.S. 346 (decided May 13, 1957): warrant needed to search and seize entire contents of cabin where defendants (two fugitives from justice and two accused of helping them) had been hiding and which police had surveilled for 24 hours; Court appends the extensive list of the innocuous items seized; I was born in that year and it reminds me of life when I was a little kid, right down to the Kent cigarettes my mother smoked and my Swingline “Tot” stapler

In re Nielsen, 131 U.S. 176 (decided May 13, 1889): double jeopardy rule precluded prosecution against Utah man for adultery involving one woman where he had already served time for bigamy during the same time period involving that woman and another woman

Lapides v. Board of Regents of University System of Georgia, 535 U.S. 613 (decided May 13, 2002): state waives its Eleventh Amendment immunity when it removes a case to federal court (the issue arose because after removal the federal claims were dismissed, leaving only state law claims)

[Dr. Ed 2]

While the Swingline “Tot” stapler is now a standard 1/2" staple, the 3/8" staplers are still available.

The best staplers I ever saw were the beige official "Comm. of Mass." ones, and I think a lot of those ones walked home.

As to the "Tot" of today: https://www.officesupply.com/school-supplies/classroom-resources/classroom-supplies/staplers-accessories/swingline-mini-stapler/p22820.html?ref=pla&scid=scbplp22820&sc_intid=22820&utm_source=bing&utm_medium=cpc&utm_campaign=SC%20Shopping%20-%20School%20Supplies%20-%20Broad&utm_term=4584757337344144&utm_content=School%20Supplies%20-%20Broad

[Dan Schiavetta]

Thanks.

Mine was red, with the 3/8 staples. I still have it, somewhere. It was called "Tot 50".

[Purple Martin]

Ed, when you post commercial links, do us a favor and first delete everything after the "?" ... it's tracking info from either your brower or the site, allowing them to build a record of your internet interests (and of anyone else clicking on it) and/or sell it to marketers. Thanks.

We now end this Public Service Announcement and return you to your regular scheduled programming.

[David Nieporent]

Brady v. Maryland, 373 U.S. 83 (decided May 13, 1963): prosecution must turn over to defendant all exculpatory evidence

It's often summarized that way, but a more accurate description is that the prosecution must turn over to defendant all evidence favorable to the defendant. It need not be exculpatory on its own to trigger the obligation. That's important because it means that the prosecution can't withhold evidence on the grounds that it doesn't prove innocence.

(But in practical terms the prosecution can do that, because an appellate court will just rule it harmless error.)

[Dan Schiavetta]

Thanks!

[Commenter_XY]

Could we repeal it, please? = 17th

[Dan Schiavetta]

If I understand the “independent state legislature” theory Republicans are pushing, it would amount to a repeal, at least if it's applied to U.S. Senate elections.

[Brett Bellmore]

OK, then you don't understand it.

Under the weakest version of ISL theory, state courts can strike down state election laws (For federal office) as violating the state constitution, but that just sends it back to the state legislature, since the courts can never substitute their own ideas of how things should be done.

Under the strongest version of ISL theory, state election laws for federal elections are an exercise of purely federal power delegated to the state legislature, and not bound by the state constitution or the state judiciary, but even then they're still subject to the federal constitution and federal judiciary.

So, since the 17th amendment is an amendment to the federal Constitution, under ALL versions of ISL, state legislatures are bound by it, and it could be litigated at least in federal court.

[Dan Schiavetta]

Under the ISL theory, federal courts have no business telling the states how they pick their representatives.

Nor even their Electors. Indeed, before Bush v. Gore, this was the rule. See Taylor v. Beckham, 1900.

[Dr. Ed 2]

Wouldn't Baker v. Carr come to play here?

[Dan Schiavetta]

It would require reversing (or abrogating) Baker v. Carr, also.

[Michael P]

When do any US courts get to make up rules for how people conduct their (non-judicial) affairs?

[Mr. Bumble]

Another of the days of infamy.

[Frank Drackman]

While it would be convenient to have some Slaves, I have to disagree!, oh wait a minute.........................
Never mind

[SRG]

Reading Apple, the antitrust argument seems utterly obvious. Consumers pay a price that to an extent incorporates Apple's charge to developers, and meanwhile developers have less competition than they might otherwise have because of Apple's restricting app sales - and so again, consumers pay more. And all of this is due to Apple's policies. So standing is bleeding obvious. On the other hand, Apple is a corporation, hence Alito necessarily dissents.

[Dan Schiavetta]

Thanks!

[Tilted]

In Illinois Brick v Illinois (1977) the Supreme Court rejected the pass-on theory for asserted injuries in antitrust contexts. (For completeness, the Court had already rejected the pass-on theory as it might be used defensively by an alleged antitrust violator in Hanover Shoe v United Shoe (1968); in Illinois Brick the Court extended that rejection as the theory might be used offensively by an alleged antitrust victim.)

If an antitrust violator is able to overcharge for the bricks it sells to contractors, then those contractors – rather than customers whom those contractors build things for – are the rightful plaintiffs in a related antitrust action. To the extent those contractors are able to and decide to pass on the increased costs, that decision – and not the violator’s antitrust behavior – is the proximate cause of their customers’ (increased cost) injuries. To allow both groups to sue for antitrust violations would be untenable for a number of reasons. And, at any rate, it’s inconsistent with principles of proximate cause.

Does every subsequent sale of a supra-competitively-priced item (or component) trigger a new injury and a basis for an antitrust suit? A monopolistic logger sells trees to a mill. The mill sells boards to a lumber distributor. The distributor sells them to a home improvement store. That store sells them to a furniture store. That store sells a dresser to a home decorator. The decorator sells it to a homeowner. The homeowner moves a year later and sells it to someone else. Does everyone have standing to sue for the same antitrust violation? How are damages calculated? What about treble damages? At what point in the chain is the proximate cause line drawn?

Justice Kavanaugh’s majority opinion in Apple v Pepper is pretty bad. I won’t get lost in all the reasons why; Justice Gorsuch did a fair job of that in his dissent. But I will say that perhaps his most obvious mistake was to hand-wave away the differences between an agent seller and a reseller, in a context where the differences between them are at the core of the matter – i.e., pricing decisions and an alleged monopolistic power to set prices supra-competitively. In such context it kind of matters who is actually setting the prices. That’s particularly true in a market where input costs don’t drive retail prices to the degree they do, by necessity, in many other markets.

When it comes to app purchases, the developers are setting the prices. Apple is an agency seller, not a reseller. Justice Kavanaugh just pretends that doesn’t matter.

Yes, when it comes to the use of Apple’s IP and various distribution-related services, Apple is setting the prices. But it isn’t selling those things to the app purchasers, it is selling them to the app developers. Those developers in turn use that IP to create apps and those services to distribute them. Developers are the direct purchasers of what Apple is selling. App users are the direct purchasers of what the developers are selling.

[SRG]

Your analogy falls down because in this case, it is not the logger who is the monopoly. No developer can sell an Apple app outside the App store. A better analogy would be if a major car manufacturer were able to prevent all parts for its cars being sold except through their authorised dealer network, imposing a flat percentage on every supplier. In such a case, do you think that car owners would have no standing?

[Tilted]

I wasn’t analogizing to Apple’s situation with that particular part of my post. I was illustrating the problem with allowing anyone on the chain to sue for antitrust violations. (If anything, it was an expanded analogy to the Illinois Brick situation.) Once you get past the first link, the proximate cause of a party’s injury isn’t the alleged antitrust violator’s behavior. It’s the response to that behavior further up the chain. That’s what Illinois Brick was about. The purchaser of the bricks can sue, not the parties they then sold the bricks to or used the bricks to build for. To allow otherwise would be problematic for many reasons.

To the extent the logger chain I described might be an analogy for the Apple situation – which, again, I don’t think it would make for a good analogy, there are plenty of more apt (though still not good) analogies – the logger would be the monopoly because the logger would be Apple. Again, not a good analogy, but we’re talking about a party selling something to a second party which then uses that something to make (or distribute) that which it sells to another party.

Apple’s IP is a component of the apps which developers sell to others. Further, those developers use Apple’s distribution services to sell those apps. To the extent the use of Apple’s IP and those distribution services are supra-competitively priced (or illegally tied), it is the app developers who are paying the supra-competitive prices and who, under Illinois Brick, have standing to sue.

Apple’s situation as re: iOS app distribution is hard to analogize. Most efforts will fall short on critical aspects of the situation. On one side Apple is selling products to consumers which are made in such a way that Apple has tremendous control over an aftermarket which is very important to the use of those products. But, at this point, the typical purchaser is probably generally aware of that aftermarket control when they make their foremarket purchasing decision. So, under existing antitrust law, Apple probably has the legal right to sell products that work that way – i.e., where those products are designed such that sideloading is generally not possible. But I think, to the extent Apple customers might bring antitrust challenges to that Apple practice, they should need to establish standing based on their device purchases. If they’re buying supra-competitively priced third-party apps, they are buying those apps from third-party developers rather than Apple.

On the other side of the situation is Apple’s dealings with those developers. It is both (1) selling them the right to use its IP (both through a small annual fee and an agreement to pay a commission on certain kinds of sales) and (2) requiring that they use (and under some circumstances pay to use) Apple’s distribution services in order to distribute their iOS apps and content. If all Apple was doing was licensing the use of its IP, I don’t think there could be any legitimate antitrust challenge regardless of what commission rate it set. Apple has a legal monopoly over the use of its IP. It can charge whatever it wants for its use, or refuse to license its use altogether.

So what’s left, I think, is the tying issue. Can Apple tie the use of its distribution services to the licensing of its IP? Can it use its legal monopoly power over the latter to create monopoly power with regard to the former? And thus charge supra-competitive prices for its distribution services (which come in the form of a portion of the 15 or 30% commission rates)?

I think app developers have standing to bring an antitrust challenge to that tying. But, at least under a fair reading of Illinois Brick (i.e. the 4 Pepper dissenters’ reading), app purchasers do not.

Standing issues aside, the real hurdle for antitrust challenges is the single-brand relevant market issue. In order to find monopoly power for Apple (at least in the U.S. as a whole), you have to establish a relevant market based only on iOS (e.g., iOS App distribution or iOS In-App purchases). Thankfully we got a little more clarity a few weeks ago regarding what’s needed to establish such a single-brand relevant market. See Epic Games v Apple (9th Cir, 4/24/23). What that decision said about single-brand markets mostly favors Apple.

[SRG]

Thank you!

[Syd Henderson]

"Brady v. Maryland, 373 U.S. 83 (decided May 13, 1963): prosecution must turn over to defendant all exculpatory evidence" as Mona Lisa Vito informed Vinny.

[Mr. Bumble]

Mona Lisa Vito for Attorney General.

[The Margrave of Azilia]

"Apple v. Pepper" sounds like one of Dennis the Menace's recipes.

[Yogis_dad]

Seventeenth Amendment: what a terrible idea! The founders intended the states to have a say in the federal government, and appointment of senators by state legislators, combined with an equal number of senators from each state, gave the states that say.

The founders were right and the 20th Century progressives were wrong. Twentieth Century progressives have given us the Leviathan that is about to destroy our economy by driving energy costs out of sight and debauching our currency, all while permitting an invasion of the land by foreigners who will overtax the resources of communities from coast to coast.

The USA had a good run. Today, the courts are adjudicating the arrangement of the deck chairs while the ship of state steams amain toward the iceberg.

[Dr. Ed 2]

I don't think that the US House has done much better....

But think about what repeal of the 17th would do in Post Citizens United America -- it would turn state legislative races into national contests.

It would be the end of moderate Republicans such as Maine's Olympia Snowe (who retired for health reasons), and Susan Collins -- if the GOP had the votes in the legislature (and they've held majorities) they wouldn't care about needing Dem votes and hence would select a far more conservative candidate. Look at how control of the legislature would play out in the Angus King (I/D) 2024 reelection race were it the legislature that decided.

And then look at Massachusetts where five of the six prior Governors have been Republican in a state where only 10% of the voters are registered as Republicans -- were the General Court (legislature) to select the US Senators, that would change the dynamics of the mASSgop and encourage them to win and retain seats in the General Court.

A state rep race in Ware (where?) would suddenly have national importance and bring in national money on both sides.

It would force both parties to be consistent nationally as it wouldn't be a case of having a popularly elected Chuck Schumer (D-NY) or Elizabeth Warren (D-MA) but whomever the far more leftist Democrat majority in the legislature wanted -- and having to deal with that, you'd likely see some enforcement of party orthodoxy on the state level.

The Rep from Ware (a backwater Massachusetts town adjacent to those flooded to form the Quabbin) would either represent the party's national beliefs or be successfully challenged by one who did.

I don't know how this would end up but it would be interesting.

[Dan Schiavetta]

Apparently the 17A was enacted because state legislatures were so corrupt. It is easier to be corrupt in a smaller polity where one person (or family, or cabal) can personally own a large percentage of the economy.

If it had been a couple of generations later, state legislatures would have ensured that only segregationst-friendly Senators were sent to Washington, either directly or by apportioning state legislative districts so as to dilute pro-integrationist votes.

[Brett Bellmore]

I thought it was enacted because lazy state legislatures had in effect delegated selection of Senators to the voters already, and why not finish the job? The "Oregon system" had rendered legislative selection just signing off on voters' choices in over half the states by then, remember.

But before the 17th amendment, even in Oregon system states, a Senator had to worry that if he pissed off enough state legislators, they'd balk at doing as the voters asked; They still constitutionally retained the power to select the next Senator, even if they'd promised to pick the one the voters endorsed.

[David Nieporent]

But think about what repeal of the 17th would do in Post Citizens United America — it would turn state legislative races into national contests.

Dr. Ed isn't wrong (wow!) on this part. That was indeed one of the criticisms of the pre-17th system, and one of the motives for enacting the 17th.

A state assembly race for a seat in Podunk, Iowa, should turn on local issues relevant to Podunk, Iowa. But because that assembly person would be choosing the U.S. senator, the race could turn on the state assembly person's position on entry into World War I.

[Alpheus W Drinkwater]

Yogis_dad maybe, but the original process as laid out never really worked that well. Besides the occasional legislative deadlock that would leave a Senate seat unoccupied for years, there were problems with corruption and with state legislative elections in years with a Senate selection being completely dominated with that issue, to the exclusion of all others. Calls to change to popularly elected Senators came very early in the 19th Century, much earlier than 20th Century progressives like WJ Bryan were around.

[Brett Bellmore]

But it did, seemingly, succeed at the aim of giving state legislatures leverage over the federal government.

Perhaps a better mechanism could be found, but some such mechanism is needed.

[Sam Bankman-Fried]

Heller/McDonald was the last blow to federalism…the white trash in the South did the most to undermine federalism.

[Frank Drackman]

Why are we even discussing this?? I thought the whole idea of the Senate was original-sin-White-Supremercism?? North/South Dakota/Wyoming (2 million population) get as many votes as California/New York/Illinois (71 million population)??

Frank

[Michael Ejercito]

What is the downside of limiting the franchose to those who passed an annual civics exam?

[Dr. Ed 2]

Who gets to write the exam?

[Mr. Bumble]

"Venerating “the states” over and above the people that live in them is pernicious nonsense. "
How is that different from venerating the President, Congress, the courts or worst of all, executive agencies?
State legislatures are closer to the people that live there than any of the others.

[Brett Bellmore]

It’s no more a matter of venerating states, than including a throttle in an engine is a matter of venerating choke plates. The authors of our constitution designed the government like a machine, with feedback mechanisms to keep it from running out of control.

They divided power horizontally and vertically, and deliberately set one piece against another, so that each would in theory be restrained by the rest. And one of those mechanisms was having a chamber of Congress whose members were chosen by state legislatures, so that Congress would have a hard time passing laws that took power away from state governments and transferred it to the federal government.

It’s not remotely an accident that the vast expansion of federal power in the 20th century, at the expense of state power, happened AFTER the 17th amendment. It happened because a vital feedback mechanism had been spiked.

One of the most pernicious things you can do in designing an institution is to neglect the mechanisms that will keep it in check, just because you think one element of the system is perfectly trustworthy, and deserves to win all fights.

[Brett Bellmore]

Right, it was just like the tide coming in, no mechanism behind it...

It's true that centralized planning and totalitarian government were starting to be the in thing about then, before the Nazis and communists put people off of them. But that only explains why people like FDR were interested in centralizing power in their own hands, not why they were able to do it.

[Brett Bellmore]

Yeah, just like I want the engine to rev when I hit the accelerator, but that doesn't mean I want it to keep speeding up until it blows up.

It's important that institutions actually work, not just look good from a democratic perspective. You can actually have too much democracy in a government for it to work well.

[Frank Drackman]

So why allow the DemoKKKrat party to pick their own 0-24 nominee? Even if RFK Jr. MW get on the ballot, not really fair without debates, heck, even Hillary Rodman debated Bernie S a few times (on Saturday nights) and still had to steal it

Frank "I know, my mom's fucking black guys"

[Commenter_XY]

Yes, QA. I believe that the Founders designed the Senate to explicitly represent state (not political party) interests. It is an entirely different dynamic in Washington DC today if Senators are beholden to their respective state legislatures, and can be recalled and dismissed.