The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy

Copyright

Court Rejects Copyright Lawsuit Over Ole Miss Coach's Use of Motivational Speaker's "Winning Isn't Normal" Passage

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From Bell v. Kiffin, decided two weeks ago by Judge Michael Mills (N.D. Miss.):

With any beneficial law, … there will always be some litigants who seek to abuse it, and this court believes that there is good reason to suspect that this case involves such a litigant. In so stating, this court notes that this case bears an extraordinary similarity to another copyright action dismissed by the Fifth Circuit in its February 2022 decision in Bell v. Eagle Mountain Saginaw Indep. Sch. Dist. (5th Cir. 2022). [For more on that Fifth Circuit decision cited in the case, see this 2022 post. -EV] In that action, the Fifth Circuit dismissed an action by the very same plaintiff in this case, based on an almost identical quotation on social media of an inspirational passage from his book Winning Isn't Normal. {[I]t is impossible for this court to improve upon holdings which are, by their very nature, binding precedent in this circuit.}

In Eagle Mountain, the Fifth Circuit described plaintiff's book as follows:

In 1982, Bell published Winning Isn't Normal, a 72-page book that provides strategies for success in athletics. Bell continues to market and sell Winning Isn't Normal through online retailers and his personal website, where he also offers merchandise, including t-shirts and posters that display the passage that was quoted in the tweets.

That passage, which Bell calls the WIN passage, is separately copyrighted. Bell offers licenses for its use. The passage reads:

Winning isn't normal. That doesn't mean there's anything wrong with winning. It just isn't the norm. It is highly unusual.

Every competition only has one winner. No matter how many people are entered, only one person or one team wins each event.

Winning is unusual. And as such, it requires unusual action.

In order to win, you must do extraordinary things. You can't just be one of the crowd. The crowd doesn't win. You have to be willing to stand out and act differently.

Your actions need to reflect unusual values and priorities. You have to value success more than others do. You have to want it more. Now take note! Wanting it more is a decision you make and act upon—not some inherent quality or burning inner drive or inspiration! And you have to make that value a priority.

You can't train like everyone else. You have to train more and train better.

You can't talk like everyone else. You can't think like everyone else. You can't be too willing to join the crowd, to do what is expected, to act in a socially accepted manner, to do what's "in." You need to be willing to stand out in the crowd and consistently take exceptional action. If you want to win, you need to accept the risks and perhaps the loneliness … BECAUSE WINNING ISN'T NORMAL!

This case arises from Kiffin's March 20, 2022 tweet of the exact same passage quoted above ….

This court observes that, after quoting this same passage in Eagle Mountain, the Fifth Circuit noted plaintiff's predilection for suing public schools and other non-profit entities, in a manner which many would regard as considerably less than inspirational. Specifically, the Fifth Circuit wrote that:

Bell has another revenue stream. He zealously seeks out and litigates unauthorized uses of the WIN Passage. Between 2006 and 2017, Bell filed over 25 copyright lawsuits. Most of the defendants were public schools or nonprofits, which published the WIN passage on social media.

In affirming the district court's award of attorneys' fees against Bell, the Fifth Circuit had very harsh words for his litigation practices, writing that:

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Politics

President Carter's Peanut Business and the "Blind" Trust

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After the 2016 election, many commentators urged President-Elect Trump to follow the lead of President Carter, and create a blind trust. The Associated Press, for example, observed "The tradition stretching back to Jimmy Carter in the late 1970s is for presidents to put personal holdings such as stocks into a 'blind trust' run by an independent trustee with no ties to the occupant of the Oval Office." That tradition, however, was not so clear.

Governor Jimmy Carter of Georgia operated successful farms and a peanut warehouse business in the Peach State. The 3,000 acres of farmland had been in his family for six generations. In 1977, President Carter's shares in the family enterprise were valued at approximately $350,000, or about $1.8 million in present-day value. The business was valued at about the same amount. On January 4, shortly before the inauguration, President Carter announced a plan to transfer his holdings from his family businesses into a trust. This trust agreement would let Carter retain ownership of the land, but "insure that he will not benefit financially from agricultural policy decisions that he may make as President." Specifically, the farm and business would be leased for a fixed amount that would not be affected by the administration's policies. But Carter would continue to receive income from the businesses while he was in office. In the trust document, Carter explained that he "wants the trustee to arrange the assets of the trust so that no one should reasonably assert that [his] actions as President were motivated by a desire to foster his own personal monetary gain or profit." (p. 140). 

Carter's arrangement has often been described as a blind trust. Indeed, the Carter Presidential Library calls the arrangement a "blind trust." Carter's trust, however, was not blind in every sense. Pursuant to Section 102(b)(3) of the Ethics in Government Act, which Carter signed in 1978, a strict wall of separation was needed between the grantor and trustee. The trust, however, was managed by Carter's close personal friend and longtime confidant, Charles Kirbo. And Kirbo served as an adviser to the President, frequently visiting Carter in the White House. Kirbo was not an independent, disinterested trustee. The New York Times reported that the Lincoln bedroom was Kirbo's "home away from home." Moreover, the President was not really separated from his enterprises. In 1977, Carter had to "bail out" the family business. 

Eventually, the President would acknowledge that the trust was not blind. In 1979, Carter's team characterized the trust as open, rather than blind. Even after that recharacterization of his role as trustee, Kirbo continued serving as trustee. The New York Times observed that had Carter chosen to claim his trust was blind, "he would have taken the risk that Mr. Kirbo, a close friend and confidant, might be ruled an invalid trustee." Under the rules, "[t]he trustee of that blind trust must be completely independent of the person whose business is being managed. But with "an open trust," the director of the Office for Government Ethics explained, "Mr. Kirbo's role [was] a moot point." 

There would be more conflicts with Carter's businesses and his presidency. In 1976, the President's brother, Billy Carter, had taken a $6.5 million loan for the family business from the National Bank of Georgia—approximately $30 million in present-day value. (Billy Carter was perhaps most famous for marketing "Billy Beer," a beer that bore his name.) In January 1977, President Carter appointed Bert Lance, the President of the National Bank of Georgia, to serve as director of the Office of Management and Budget. Lance resigned as director in September 1977 after allegations arose concerning his mismanagement of the bank. Lance was tried and acquitted on nine counts of bank fraud. 

In March 1979, Attorney General Griffin Bell appointed Paul J. Curran as special counsel to investigate whether loans from the National Bank of Georgia to Carter's business may have been illegally diverted to Carter's presidential campaign. (Curran was not appointed as an independent counsel under the Ethics in Government Act of 1978.) Curran deposed President Carter, who testified under oath for nearly four hours. In October 1979, the special counsel concluded his investigation. Curran found "no evidence whatsoever . . . that any monies were diverted from the warehouse [business] into the campaign." I contacted the Carter Library in Atlanta to obtain a copy of the Curran report, but was told it was still sealed. I were not able to find any records suggesting that the Carter businesses transacted with state or foreign governments. 

In short, Carter's trust was messy. The Washington Post described the complex arrangement this way: Carter had "two fairly large businesses (particularly for the time), a cozy relationship with the guy put in charge of his business, and, at one point, the appointment of a special counsel to dig into loans one of his businesses received—from a bank whose president ended up serving in Carter's administration." After Carter left office in 1981, the businesses were over $1 million in debt.

Billy Carter would create even more financial conflicts for his brother. In 1980, Billy became a registered agent of the Libyan government, and accepted a $200,000 loan from the Gaddafi regime. Billy defended himself from the scandal, which became known as Billygate. He said, "I considered myself to be a private individual who had not been elected to public office and resented the attention of different Government agencies that I began to hear from almost as soon as Jimmy was sworn in." A Senate investigation found that the President was negligent in not disassociating himself from his brother's foreign entanglements. Billy would only pay $1,000 of the loan.

Jack Smith Withdraws From Florida Case, Refers Case to U.S. Attorney for Southern District of Florida

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A few moments ago, Jack Smith and his co-counsel filed a motion to withdraw from the Florida case:

Pursuant to Federal Rule of Appellate Procedure 27 and Eleventh Circuit Rule 27-1, the United States of America moves to withdraw from this case the following attorneys: Jay I. Bratt, David V. Harbach, II, James I. Pearce, John M. Pellettieri, and Cecil W. VanDevender. Those attorneys are associated with the Special Counsel's Office, which initiated the criminal prosecution from which this appeal arose. The Special Counsel has now referred this case to the United States Attorney's Office for the Southern District of Florida, which has separately entered an appearance.

The motion did not state whether the defendants oppose the withdrawal.

The U.S. Attorney for the Southern District of Florida has made an appearance.

This move was expected. Smith has already announced that he would no longer prosecute President Elect Trump, based on the Department's reading of the policy against prosecuting the sitting President. However, Smith has left open the possibility that the other two defendants can still be prosecuted. And it seems the U.S. Attorney will cary those prosecutions forward. One would expect that President Trump will promptly pardon both defendants, so this case may not go very far.

Of course, the indictment was secured by Jack Smith. If he was not properly appointed to his position, and lacked the authority to obtain a criminal indictment, then there may still be a constitutional problem. And referring the case to the U.S. Attorney may not cure that problem. Seth and I have addressed this issue before, and we may do so again.

Aggregate Two-Party House of Representatives Vote Was 51.36% Republican, Yielding 50.57% of House Seats

The 51.36% fraction is of the voters who voted either Democrat or Republican.

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This suggests that, whatever one thinks of gerrymandering and of geographic representation (as opposed to proportional representation), they didn't seem to have a particularly distortive effect on this year's race. (For the aggregate House vote totals, I'm looking at the Cook Political Report totals.)

As it happens, I don't much like gerrymandering, though I'm not sure what the optimal solution to it would be. (I'm not sure what I think on balance of geographic vs. proportional representation, if we were redesigning our political system from scratch.) I also appreciate that it's possible that, under some fair systems of district drawing, the 51.36% Republican vote would cash out into a minority in the House, while under other fair systems it would cash out into an even bigger majority. But I think these numbers should put into proportion arguments that Republican control of the House is the fault of "unfair maps."

Thanks to Richard Winger (Ballot Access News) for pointing this out. (His aggregate numbers are slightly different from the Cook Political Report's, but only slightly.)

Can SCOTUS Issue An Administrative Injunction In the TikTok Case To Preserve The Status Quo?

It is common enough for the Court to issue administrative stays on the emergency docket to afford itself more time, and maintain the status quo. What about an administrative injunction that would maintain the status quo?

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Yesterday, I wrote about President-Elect Trump's brief in the TikTok case, which urged the Court to "grant a stay to preserve the status quo in a case that presents novel." Trump is not actually asking for a stay. A stay is used to put on hold a lower-court injunction. In this case, the D.C. Circuit declined to enjoin the statute. Rather, Trump is seeking some sort of injunction to provide more time for negotiations. In my post, I speculated what this sort of injunction would even look like. Would it last for a specific number of days, or could the Court issue an injunction indefinitely? Implicit in my suggestions was that the Court would issue such an injunction, without regard to the merits. In other words, this order would not turn on whether the statute violates the First Amendment.

Steve Vladeck writes that the Court could not issue an injunction without opining on the merits:

The first is that it's asking the Court to do something that the Court … has no power to do. Without at least some view as to the constitutionality of the statute, there's no basis for the Court to do anything to prevent the statute's operative provisions from going into effect on January 19. . . .

The Court has no authority to block the statute solely because something that might happen on some un-specific future date could moot the constitutional questions it presents. Its authority depends upon at least an interim determination that the statute is unconstitutional. To argue for a pause without any constitutional determination is not merely to inject politics into a legal dispute; it's to ask for the law to take a backseat to the politics altogether.

It is common enough for the Supreme Court, as well as lower courts, to enter administrative stays on the emergency docket. In the usual course, a district court enters some sort of injunction in a complex case. The appellate court, or the Supreme Court, receives an emergency motion for a stay. Without making any determination on the merits, the appellate court then enters an "administrative stay" for some limited period of time. These stays are issued without regard to the merits. Rather, they are usually justified on the grounds that the Court simply needs more time to grapple with a complex case. The stay has the effect of preserving the status quo, while an opinion is crafted, or at least while a majority is cobbled together.

To be sure, these administrative stays--especially in the Fifth Circuit--have been subject to some criticism from Justice Barrett and others. But the Court does use them. And the Court has extended these administrative stays for no other apparent reason than the Justices needed more time.

This is a slightly unusual case where Congress tries to shut down a business that has been in existence for several years. It is often unclear what exactly is the status quo. But I think most people would agree that the law going into effect on January 19 would disrupt the status quo.

If the Court can issue an administrative stay to preserve the status quo, why not issue an administrative injunction to preserve the status quo? The duration of that administrative injunction would be time-limited to facilitate the writing of a majority opinion, or to allow the political process to work its way through things. I can't think of an example when this has been done before, but I don't know any obvious reason why the Court could not do so.

contract law

"Thumbs-Up Emoji Formed Binding Sales Contract in Canada"

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Prof. Eric Goldman (Technology & Marketing Law Blog) has the details; an excerpt from the majority opinion that Prof. Goldman highlights:

[H]uman communication is often subtle. Words, phrases, gestures and symbols may carry more than one meaning. All of this gives rise to the potential for ambiguity and uncertainty and, indeed, litigation. The law has long accommodated for this, and courts are often called upon to determine the legal import of a multitude of communication types between individuals. The fact that, in this case, one part of the communication comprised an emoji simply provides a modern twist to this otherwise rather unremarkable observation.

There's much more in Prof. Goldman's post.

Free Speech

Second Circuit Panel Upholds E. Jean Carroll's $5M Win Against Donald Trump as to 1996 Sexual Abuse and 2022 Defamation

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The short introduction from the 17,000-word Carroll v. Trump, decided today by Second Circuit Judges Denny Chin, Susan Carney, and Myrna Pérez:

In this case, after a nine-day trial, a jury found that plaintiff-appellee E. Jean Carroll was sexually abused by defendant-appellant Donald J. Trump at the Bergdorf Goodman department store in Manhattan in 1996. The jury also found that Mr. Trump defamed her in statements he made in 2022. The jury awarded Ms. Carroll a total of $5 million in compensatory and punitive damages.

Mr. Trump now appeals, contending that the district court (Lewis A. Kaplan, Judge) erred in several of its evidentiary rulings. These include its decisions to admit the testimony of two women {Jessica Leeds and Natasha Stoynoff} who alleged that Mr. Trump sexually assaulted them in the past and to admit a recording of part of a 2005 conversation in which Mr. Trump described to another man how he kissed and grabbed women without first obtaining their consent. Mr. Trump contends that these and other asserted errors entitle him to a new trial.  {[As to those other errors], Mr. Trump argues that the district court unreasonably restricted his defense by precluding (1) evidence that some of Ms. Carroll's legal fees were being paid for by one of Mr. Trump's political opponents and (2) portions of a transcript made by Ms. Carroll of a 2020 interview between Ms. Carroll and Ms. Stoynoff that, Mr. Trump argues, suggests that Ms. Carroll coached Ms. Stoynoff on her testimony. Mr. Trump also asserts that the district court erred in preventing him from cross-examining Ms. Carroll on three matters: her out-of-court claim that she possessed Mr. Trump's DNA; her decision not to file a police report; and her failure to seek surveillance video footage from Bergdorf Goodman.}

On review for abuse of discretion, we conclude that Mr. Trump has not demonstrated that the district court erred in any of the challenged rulings. Further, he has not carried his burden to show that any claimed error or combination of claimed errors affected his substantial rights as required to warrant a new trial….

I have little to say about the substance of the analysis, since it has to do with evidentiary issues that I generally don't follow; the opinion is available here, and is generally quite readable. (No part of the opinion deals with the substantive law of libel, which I do follow.) But here's what struck me as an interesting and relatively self-contained analysis as to the litigation funding question:

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Seemingly Final Election Totals: Harris 75M, Trump 77.3M, Stein 878K, Kennedy 756K, Oliver 650K

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This is from David Leip's U.S. Election Atlas; other sources have slightly different numbers, but not by much (especially as to the two major candidates). This is about 1M less than I expected (on Nov. 11) for Harris and Trump, estimating based on the then-far-from-complete totals; and it shows that Harris received 6.3M fewer votes than Biden's 81.3M in 2020, and Trump got 3M more than he did in 2020. (Final turnout was 155.5M this year, down from 158.4M in 2020, and the third party vote was up slightly.)

Also making an appearance: Lucifer Everylove with 2.5K, and Vermin Supreme with 1K, among others.

In any event, though, it's a reminder of just how many votes were excluded from the election night results (when Harris had 67M and Trump 72M), and how it's a mistake to compare the election night far-from-final totals for one election with the final totals from previous elections. It's also a reminder that, so long as heavily Democrat-voting California is one of the few very slow-counting states, the election night results will tend to underestimate the Democratic vote more than they underestimate the Republican.

Academia

The Socio-Economic Backgrounds of American Academics

An interesting empirical study. (Updated)

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Does an individual's socio-economic background affect their likelihood of success in academia or their field of study? It certainly might.

A new study, "Climbing the Ivory Tower: How Socio-Economic Background Shapes Academia," by Ran Abramitzky, Lena Greska, Santiago Pérez, Joseph Price, Carlo Schwarz, and Fabian Waldinger, casts some light on this subject. Here's the abstract:

We explore how socio-economic background shapes academia, collecting the largest dataset of U.S. academics' backgrounds and research output. Individuals from poorer backgrounds have been severely underrepresented for seven decades, especially in humanities and elite universities. Father's occupation predicts professors' discipline choice and, thus, the direction of research. While we find no differences in the average number of publications, academics from poorer backgrounds are both more likely to not publish and to have outstanding publication records. Academics from poorer backgrounds introduce more novel scientific concepts, but are less likely to receive recognition, as measured by citations, Nobel Prize nominations, and awards.

And from the body of the paper:

While individuals from higher socio-economic backgrounds are overrepresented in all disciplines, there are large differences across disciplines (Figure 7). Agriculture, veterinary medicine, pedagogy, sociology, and pharmaceutics are the disciplines with the highest representation of individuals from lower socio-economic backgrounds. In contrast, the humanities, archaeology, architecture, cultural studies, medicine, anthropology, and law have the lowest representation.24 Contrary to the common perception of economists, economics is more representative than the median discipline.

Peter Boettke comments: "This might actually explain a lot about how we should think about the two cultures thesis of CP Snow for our era."

UPDATE: It is worth noting that the study is based on those who entered academia between 1900 and 1969. While this facilitates some aspects of the authors' inquiry, it also justifies caution. What was true about 20th century academics may or may not be true today.

Politics

Plaintiff "Took Thousands of Photographs and Videos of Many of Her Coworkers Without Their Permission"

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From Thursday's decision by Judge Lee Rosenthal (S.D. Tex.) in Berry v. City of Houston:

[T]aking the disputed facts in the light most favorable to Ms. Berry, summary judgment is nonetheless appropriate. The facts show a temporary employee who created, and received, workplace friction and unpleasantness, but not based on unconstitutional grounds. The facts do not permit an inference that there was discrimination or harassment based on animosity to the employee's national origin [Egyptian] or religion [Muslim], or in retaliation for her complaints….

Ms. Berry first reported that she felt she was treated discriminatorily in May 2022. In an email to Ms. Ikpeme, followed by emails to Ms. Brownlow and Ms. Johnson, Ms. Berry complained that she had "experienced … Humiliation and Mobbing at work" by a group of other employees who came in and left at the same time she did, and who parked in the same parking garage, near her parking place. She also complained that Ms. Ikpeme had talked to her at a lunch once about Jesus, including stating that those who do not believe in Jesus are "lost."

The day after Ms. Berry sent the emails to Ms. Brownlow and Ms. Johnson, they convened a meeting between Ms. Berry and Ms. Ikpeme. Ms. Ikpeme agreed not to discuss religion with Ms. Berry, and it did not happen again. It is unclear what was discussed about Ms. Berry's belief that a group of coworkers who arrived at and left work from the same parking garage at the same times as Ms. Berry were "mobbing" her. Berry did not tell Ms. Brownlow or Ms. Johnson that this was based on her religion or national origin….

Before, during, and after these events, Ms. Berry described a series of events in sinister terms. For example, in June 2021, Ms. Ikpeme asked Ms. Berry for a copy of her driver's license and names of family members. Ms. Berry described this as a "trespass on Berry's personal information." When Ms. Berry's job was extended past the originally anticipated end date, Ms. Ikpeme reminded her that the job was temporary, which Ms. Berry viewed as inappropriate. Ms. Johnson and Ms. Ikpeme tried to have Ms. Berry sign an acknowledgment of temporary employment, which Ms. Berry refused to do because she insisted that she had the status of a protected civil servant. She did not….

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crime victims

Federal Court Decides on How Lockerbie Crash Victims' Relatives Can View Accused Terrorist's Criminal Trial Remotely

The court "grant[s] victims access to non-evidentiary pretrial proceedings from their homes and offices by Zoom and telephone, as well as access to livestreamed video and audio feeds of evidentiary and trial proceedings in courthouses across the United States and other secure, monitored locations around the world."

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From U.S. v. Al-Marimi, decided last Monday by Judge Dabney Friedrich (D.D.C.):

On December 21, 1988, Pan Am Flight 103 exploded 30,000 feet over the small town of Lockerbie, Scotland. The indictment alleges that all 259 people aboard died—including citizens of the United States, the United Kingdom, Switzerland, France, Canada, Israel, Argentina, Sweden, Ireland, Italy, Hungary, South Africa, Germany, Spain, Jamaica, Philippines, India, Belgium, Trinidad and Tobago, Japan, and Bolivia. It further alleges that debris from the explosion killed eleven townspeople instantly.

On November 29, 2022, the defendant Abu Agila Mohammad Mas'ud Kheir Al-Marimi, was … charged with two counts of destruction of an aircraft resulting in death … and one count of destruction of a vehicle used in foreign commerce by means of an explosive, resulting in death ….

On February 9, 2023, the government filed an unopposed motion for alternative procedures under the Crime Victims' Rights Act, requesting, among other things, that the Court establish a call-in telephone line so that victims could listen to the proceedings in real time. The Court denied the government's motion in relevant part, explaining that Rule 53 of the Federal Rules of Criminal Procedure prohibits the broadcasting of criminal court proceedings and that no statutory provision granted the Court authority to provide real-time telephonic access.

Thereafter, on January 26, 2024, Congress passed … [the] Lockerbie Victims Access Act …, which directs the Court to order that reasonable efforts be made to provide victims of the Pan Am Flight 103 bombing with remote video and telephonic access to the proceedings in this case….

The court discusses all this in some detail (the opinion is over 8000 words long) and concludes:

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Free Speech

"He Admitted Receiving the Password" for the Laptop, but "It Took Him Over an Hour to Log In"

Defamation litigation ensues.

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From Palardy v. AT&T Services Inc., decided Friday by Texas Court of Appeals (Dallas) Justice Cory Carlyle, joined by Justices Robbie Partida-Kipness and Dennise Garcia:

Appellant Francis Palardy sued appellees AT&T Services Inc. and International Business Machines Corporation for defamation. Via a staffing firm, Experis, Palardy worked as an IBM contractor on an AT&T project. The project required him to perform technical work on a computer, but when AT&T became aware Palardy appeared to lack even basic computer skills, such as logging on to a laptop, it informed IBM and Experis that Palardy was to be terminated….

The court upheld the rejection of Palardy's defamation claim, largely under the "common-interest" privilege:

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Politics

President Judges

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That's the term, it turns out, in Pennsylvania and Delaware: Not chief judges, not presiding judges, but president judges. (They are sometimes referred to as presiding judges even there, but the official title appears to be President Judge.)

Vaping

Could the FDA's Approach to Vaping Cause an Increase in Smoking?

A growing body of evidence suggests bans on flavored vaping products will result in more young people smoking, but the FDA does not seem to care.

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In early December, the Supreme Court heard oral argument in Food and Drug Administration v. Wages and White Lion Investments, a challenge to the FDA's denial of marketing approval for flavored vaping products. The specific question before the Court is whether the U.S. Court of Appeals for the Fifth Circuit correctly concluded that the FDA's denial of specific vaping product applications was arbitrary and capricious. Among other things, the FDA is accused of a bait-and-switch in evaluating vaping product applications, applying different standards to product applications than it had said it would apply.

A particular sticking point is that the FDA appears to have adopted a more stringent standard for non-tobacco-flavored vaping products without having done so officially, as through a rulemaking, or otherwise giving manufacturers notice of the policy. Indeed, it appears that the FDA has adopted a de facto ban on non-tobacco and non-menthol-flavored vaping products* by requiring such products to meet a higher threshold for approval--a threshold that no such products have been able to meet. So vaping companies can only make their products taste like cigarettes, but not anything else.

[*Note: All vaping products are flavored. What are generally referred to as "flavored" vaping products are those with non-tobacco flavors, whether menthol or something else (e.g. vanilla, coffee, fruit, etc.).]

To date the FDA has only approved a few dozen of the over one million vaping product applications it has received. If this trend continues, the FDA regulatory process is likely to cartelize the industry, and may jeopardize the public health benefits of vaping products.

As the FDA acknowledges, vaping products are far-less-dangerous than cigarettes and can help some smokers quit. Adding non-tobacco flavors is one way to make vaping products more appealing than cigarettes, including to current or would-be smokers. Yet the FDA has been reluctant to acknowledge this potential benefit of non-tobacco-flavored vaping products.

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