On July 28, 2017, Washington Legal Foundation published an interview in which Northwestern University Pritzker School of Law Professor Martin H. Redish answered questions on the evolution of commercial-speech protection. This “Conversations With” paper provides a fitting culmination to the series of WLF publications on commercial speech produced in the last six months.
Over the past 46 years, beginning with a 1971 law review article drafted as a Harvard Law School student, Professor Redish’s scholarship has deeply influenced the US Supreme Court’s development of the so-called commercial-speech doctrine. In the Conversations With paper, he discusses the impetus for that article, as well as the High Court’s growing respect for commercial speech.
The WLF publications were meant to provide policy makers at the state and federal levels with a basic understanding of commercial speech and the First Amendment scrutiny courts apply when reviewing restrictions on such speech. The publications, with links to each, are listed below:
- What Counts as “Commercial Speech” Today? by James M. Beck, Reed Smith LLP
- Better Think Twice before Restricting Commercial Speech, by Thomas R. Julin, Gunster Yoakley & Stuart, PA
- Precautions for Commercial-Speech Regulators, by Bert W. Rein and Megan L. Brown, Wiley Rein LLP
- First Amendment Limits Government’s Power to Compel Commercial Speech, by Jonathan F. Cohn and Paul J. Ray, Sidley Austin LLP
- Commercial-Speech Regulations Must Be No More Extensive than Necessary, by Sarah Roller and Katie Bond, Kelley Drye & Warren LLP
- Conversations With … The Intellectual Godfather of Commercial Speech Protection, featuring Professor Martin H. Redish and Jay B. Stephens, Chairman of WLF’s Legal Policy Advisory Board
In a year when the U.S. Supreme Court heard six(!) cases where Washington Legal Foundation supported grants of certiorari with amicus curiae briefs (leading all non-profit groups “by quite a large margin,” according to EmpiricalSCOTUS.com), it seems a bit churlish to pick on the Court for rejecting a number of important cases. Then again, the entire point of this feature is to identify such oversights. Even though the Court granted some 43 percent of the cases in which WLF supported cert, it still overlooked a host of worthwhile appeals, once again taking on an exceedingly light docket.
One thing stands out in this fourth annual retrospective look at last term’s disappointeds docket: namely, how many so-called business cases the Court granted. Although many commentators have called this a “boring” term, court watchers who value clarity and certainty couldn’t help but appreciate the Court’s resolving multiple controversies that, while minor in the grand scheme of things, have nonetheless vexed litigants and divided lower courts. Perhaps because the Court was down a justice and evenly divided for over a year, it took the opportunity to grant cert to cases on lower-profile subjects that might get passed over when meatier fare is desired. If it did so in a quest for consensus, the happy results are the silver lining of the Court’s unusually long interregnum. Continue reading
Whether federal district courts may certify a damages class action where no reliable, administratively feasible method exists for identifying class members is a question that has long plagued class-action defendants. The need for class ascertainability is especially dire in low-value consumer class actions in which manufacturers, distributors, and retailers are sued over “mislabeled” food, beverages, or other inexpensive consumer products. Unfortunately, the federal courts of appeals are sharply and hopelessly divided on whether Rule 23, which governs class actions in federal courts, includes an implicit ascertainability requirement. Continue reading
An economic system based on free enterprise requires an objective, clear, predictable, stable, and uniform body of rules around which commercial enterprises can organize their business affairs. For 40 years, Washington Legal Foundation (WLF) has championed fundamental free-enterprise principles in courts and regulatory agencies, as well as in the court of public opinion.
Because the US Supreme Court has the last word on many laws and regulations that affect free enterprise, WLF focuses a significant portion of its litigation activities each year on convincing the justices to decide cases in a manner that promotes legal clarity and uniformity. This past term, which concluded at the end of June, was one of WLF’s most successful in its long history of Supreme Court advocacy. Our view not only prevailed in 8 of the 10 cases in which we filed amicus briefs on the merits, but in 6 of those 10 cases, WLF also successfully supported the Petitioner’s effort to obtain Supreme Court review. Below is a list of those cases with links to press releases and related WLF commentary:
Cases in which WLF filed briefs at the cert. and merits stages
Cases in which WLF filed a brief only at the merits stage
Most of those decisions, and others that impact America’s free-enterprise system, were discussed at WLF’s 28th annual end-of-the-term Supreme Court briefing:
Featured Expert Column: Antitrust & Competition Policy — Federal Trade Commission
By M. Sean Royall, a Partner with Gibson, Dunn & Crutcher LLP, with Richard H. Cunningham, Of Counsel in the firm’s Denver, CO office.*
Ed. Note: This is Mr. Royall’s debut column as the WLF Legal Pulse‘s new Antitrust & Competition Policy, FTC “Featured Expert Contributor.” WLF recognizes and appreciates former FTC Featured Expert Contributor Andrea Murino‘s four years of serving in that pro bono position.
On June 5th, 2017, the Supreme Court held in Kokesh v. SEC that disgorgement is a “penalty” subject to a five-year statute of limitations under 28 U.S.C. § 2462. With that ruling, the Court explicitly rejected the long-standing assertion of the Security and Exchange Commission (SEC) that it possesses authority to reach back indefinitely when seeking the disgorgement of ill-gotten gains. While the Kokesh opinion explicitly limits its holding to disgorgement “as it is applied in SEC enforcement proceedings,”1 the Court’s logic extends to disgorgement actions brought by other agencies proceeding under analogous statutory authority, including the Federal Trade Commission (FTC). Continue reading
In a US Supreme Court term filled with cases that “only a lawyer could love,” the justices did issue at least one decision in October Term 2016—Nelson v. Colorado—that any TV crime-drama viewer can understand. The decision turned on the bedrock principle that the accused is innocent until proven guilty. While Justice Ginsburg’s opinion applies directly to a Colorado law, it could prove highly influential in the ongoing debate over civil-asset forfeiture, a controversial law-enforcement practice. Continue reading
Forum-shopping plaintiffs’ attorneys have long sought to file their claims against large businesses in jurisdictions with reputations for favoring plaintiffs—without regard to whether the claims actually arose in those jurisdictions. They justify their assertions of personal jurisdiction in such cases by arguing that a company that does business nationwide should be amenable to suit in any State in which it conducts substantial business. In its 2014 Daimler AG v. Bauman decision, the US Supreme Court called into serious question the validity of such venturesome assertions of jurisdiction. The Court’s decision last week in Bristol-Myers Squibb Co. v. Superior Court may have put such claims entirely to rest. Continue reading