Month: April 2011

On Friday, the US House of Representatives voted, 240-179, along largely partisan lines to strip the Federal Communications Commission of any authority to regulate net neutrality. The vote has been viewed as mostly symbolic — the Democratic-controlled Senate is unlikely to pass the bill as well, and if it does, President Barack Obama has hinted he would veto it.

But the vote bodes poorly for net neutrality supporters who expected the concept to be enshrined in government regulation by now, more than two years into the Obama era. Those supporters, many of whom have gathered this weekend in Boston for the National Conference for Media Reform, have been deeply disappointed by Obama’s tepid advocacy and the weak net neutrality rules his hand-picked FCC chairman presided over last December.

See my post on Network Neutrality in the EU and Canada.

UK law (backed by Strasbourg) is now impinging on a particular set of prurient cultural tastes common among both the poor and the poorly educated. The impact is so direct that the working-class media nine pins are starting to fall: this week saw the demise of the Daily Sport and the Sunday Sport, the most down-market of the Red Tops. As I shall argue, blaming the internet is only the half of it: much of the blame can be laid at the feet of the European Court of Human Rights in Strasbourg and its protection of celebrity privacy to the same degree as that of common folk.

Courtesy of the Constitutional Law Blog, Justice Ginsburg and Justice Scalia tussle operatically in footnotes in Minnesota v. Carter, 525 U.S. 83 (1998). Since both Justices are fans of that wonderful art, we knew such erudite footnotes were coming.

More on law and opera here from Daniel F. Tritter (by way of the Law and the Humanities Institute and the Opera Quarterly), here from Arkansas Online (a court clerk by day and an opera singer by night, and probably by day also); diva Renee Fleming (or at least her voice) guests on Law & Order: SVU (“Bully”), aired March 30, 2011.

The new electronic independence re-creates the world in the image of a global village.

– Marshall McLuhan

In 2011, the University of Alberta will host the Herbert Marshall McLuhan Edmonton Centenary. Being the city of McLuhan’s birth, Edmonton boasts a special connection to the Canadian icon, even though others are also celebrating.

I offer you this link as tribute to Marshal McLuhan – the 1971 convocation address when the University of Alberta awarded him with an honorary Doctor of Laws.

Considering the number of times he has been mentioned here, I wonder what Prof. McLuhan would say about Slaw?

There are a number of forms of State-funded legal aid in Ireland but, in summary, they will be of no use to you unless charged with a reasonably serious crime or involved in family law proceedings. … It is almost unheard of for legal aid to be obtained to initiate a civil, non-family law case. In addition, many people who would not qualify for legal aid would still find it prohibitively expensive to fund many cases (particularly those relating to serious personal injury or medical negligence). Conditional fee arrangements, commonly known as no foal/no fee, fill the void. Despite this fact, cases which usually involve such arrangements are often characterised as being somehow of questionable merit or a feature of ambulance chasing.

It is, presumably, fear of the profession being tarnished by such characterisation that led the Law Society to severely restrict how solicitors can advertise their services. … Fee arrangements are currently the subject of debate in the UK, … Andrew Dismore suggests on the Guardian website that the UK reforms might only reduce legal costs by scaring potential claimants off. … Dismore’s charge that the UK Government’s proposals are unfair because they favour insurance companies have some resonance here. …

This made me wonder whether the notion of customer lists being protectable trade secrets is sustainable in the era of social media.  Will it seem quaint or Big Brotherish in the future that companies tried to “own” the social capital created by their employees?

This is an interesting question. The title of the post refers to Faccenda Chicken Ltd v Fowler [1987] Ch 117, [1986] 1 All ER 617 (CA) (available here (.doc)).

Supreme Court Decides Case Involving Third-Party Beneficiaries Issue

Last week, the U.S. Supreme Court issued its opinion in Astra USA v. Santa Clara County in which it unanimously overturned a decision of the Ninth Circuit Court of Appeals.  The case was brought by Santa Clara County, which operates several 340B entities, that is, public hospitals or community health organizations involved in delivering medical services to the poor.  The county claimed a right to sue for overcharges on prescription medications provided through a PPA, or Pharmaceutical Pricing Agreement entered into between drug manufacturers and a division of the Department of Health and Human Services.  Although no statute created a private right of action to sue on such PPAs, the county claimed that it could sue as a third-party beneficiary of the PPAs to which the drug manufacturers had agreed.

Justice Ginsburg, writing for the Court, determined that permitting such third-party beneficiary suits would be incompatible with the statutory design.  The 340B program and its attendant PPAs are to be administered by the Secretary of HHS and her agents.  HHS oversight would be impossible if third-parties were permitted to set themselves up as independent enforcement agencies.  This is so because the drug companies are required under the statute to provide price information to the government so that it can set price ceilings.  In return, the government agrees not to disclose the price information.  If 340B entities could sue to challenge prices, the regulation would become a mechanism through which the drug companies’ trade secrets would routinely be made public.  

Citing to the Restatement of Contracts, the Court observed that a nonparty is legally entitled to benefit from a promise contained in a contract only if the parties to the contract so intended.   The county reasoned that the entire purpose of the statute that created 340B entities and PPAs was to benefit entities such as itself.  The Court disagreed, noting that the PPAs merely incorporated statutory language, rendering a suit to enforce the PPAs identical to a suit to enforce the underlying statute.  The U.S. government, as amicus curiae, argued — and the Court agreed — that Congress did not intend to share the burden of enforcement of the the statute with 340B entities.  The county objected that Congress has acknowledged that HHS lacks the resources to effectively monitor and police the PPAs.  The Court was unmoved.  Congress addressed the issue in the  2010 Patient Protection and Affordable Care Act with a new dispute resolution procedure, plus new penalties for drug manufacturers who overcharge 340B entities.

Linda S. Mullenix provides a fuller discussion over at the SCOTUSblog.

As in 2008, the decision has been made to exclude Green Party leader Elizabeth May has from participating in the televised (and widely watched) English and French leaders’ debates, to be held on April 12^th and 14^th. The decision was made by a consortium of television broadcasters based on regulations established by the Canadian Radio-television and Telecommunications Commission (“CRTC”). One of the key features of the CRTC rules is that broadcasters do not have to include the leaders of all political parties in election-related debates.

In 2008, after an enormous public outcry and the threat of legal action, the broadcasters backed down and allowed May to participate in the debates, thus setting the precedent for the inclusion of the Green Party Leader and for a leader of a party with no seats in the House of Commons. This time, though, the threat of legal action wasn’t enough and after it seemed Ms. May would not be allowed to participate, the Green Party filed an application for judicial review in the Federal Court of Appeal on March 31, 2011.

In Canada, just as in Ireland, broadcasters’ duties of fairness are often tested by smaller parties’ claims to participation in election events, such as leaders’ debates. This intriguing post discusses the legal basis of that duty in Canada, and considers May’s case. And there is another post on Slaw about it.

The same issues arose during the recent Irish election, and I discussed them here and here.