Category: reason

A new U.S. Supreme Court ruling related to Apple’s App Store has a lot of pundits and press freaking out. But it’s not quite the major loss nor broad-in-scope ruling many are making it out to be.

Yes, the court said an antitrust lawsuit brought against Apple, brought by a small group of consumers, should be allowed to continue. But that doesn’t mean that the consumers’ claims will be found to have any merit. This wasn’t a ruling on the merits of the lawsuit but a merely a decision not to shut it down immediately.

“At this early pleadings stage of the litigation, we do not assess the merits of the plaintiffs’ antitrust claims against Apple, nor do we consider any other defenses,” the court stated.

The 5-4 decision—authored by Justice Brett Kavanaugh—saw Kavanaugh siding with more liberal justices in the majority, which of course has raised eyebrows among those who expected him to be basically a Republican puppet.

Some of the reaction to this decision seems overblown. It’s not at all a decision on the merits as p2 makes clear. “At this early pleadings stage of the litigation,we do not assess the merits of the plaintiffs’ antitrust claims against Apple,nor do we consider any other defenses” https://t.co/mmAFzVX1FP

— Neal Katyal (@neal_katyal) May 13, 2019

In the case, Apple v. Pepper, plaintiffs argue that the App Store is an unfair monopoly. Apple’s lawyers argued that the plaintiffs had no standing to bring the lawsuit, since they’re app users and not app developers.

In the dissent—written by Neil Gorsuch and joined by John Roberts, Clarence Thomas, and Samuel Alito—the justices wrote that the majority’s interpretation was “not how antitrust law is supposed to work.” More from the dissent:

More than 40 years ago, in Illinois Brick Co. v. Illinois … this Court held that an antitrust plaintiff can’t sue a defendant for overcharging someone else who might (or might not) have passed on all (or some) of the overcharge to him. Illinois Brick held that these convoluted “pass on” theories of damages violate traditional principles of proximate causation and that the right plaintiff to bring suit is the one on whom the overcharge immediately and surely fell. Yet today the Court lets a pass-on case proceed. It does so by recasting Illinois Brick as a rule forbidding only suits where the plaintiff does not contract directly with the defendant.

This replaces a rule of proximate cause and economic reality with an easily manipulated and formalistic rule of contractual privity. That’s not how antitrust law is supposed to work, and it’s an uncharitable way of treating a precedent which—whatever its flaws—is far more sensible than the rule the Court installs in its place.

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FREE MINDS

Freshman Sen. Josh Hawley (R–Mo.) is quickly outpacing more experienced colleagues at being The Worst:

This @HawleyMO letter to Zuck is simply ????????????????. He's going after privacy failures and something new – the privacy problems implicit in becoming a payments platform, aka a bank. Also he cc's WhatsApp founders Brian Acton and Jan Koum and says hey guys come talk! pic.twitter.com/gf5yzptyBA

— Matt Stoller (@matthewstoller) May 13, 2019

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FREE MARKETS

Pete Buttigieg continues to be OK:

Quick reminder: a tariff is a tax. On Americans.

— Pete Buttigieg (@PeteButtigieg) May 14, 2019

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QUICK HITS

• Buzzfeed, bright young thing of the millennial era, has become one of the biggest panic-stricken scolds about today’s teens/young adults and technology.
• Meghan McCain is the poster child for “toxic femininity” suggests The Guardian‘s Arwa Mahdawi.
• Fraser Meyer with some counter-intuitive reasoning on why it was good for the BBC to “platform” Ben Shapiro.
• Shoshana Weissmann on how not to regulate social media.
• 100 times this:

Hey journalists if you want to be a cop be a cop. That’s not our job. pic.twitter.com/Zt6S3Fdez2

— Gene Park (@GenePark) May 8, 2019

• Millennials sometimes move out of expensive places when work doesn’t require it and The New York Times is on it!
• This is an interesting piece on multi-generational housing and the future of suburban spaces, even if it seems a bit performatively clueless at times.
• Protecting and serving:

NEW: Indpt experts spent 4 days at the Houston home where 2 ppl were killed in a drug raid. They found no signs the pair fired at cops – and plenty of signs that CSI teams did a cursory investigation, leaving behind bullets, tagged evidence & 2 teeth. https://t.co/qYProc57PM

— Keri Blakinger (@keribla) May 14, 2019

• Marijuana legalization in New York and New Jersey is running into roadblocks.
• Awww:

It would shock and appall 25-year-old me that the best take 35-year-old me has heard on Facebook bannings comes from a goddamn libertarian podcast. https://t.co/tdFbzM1Zx8

— Katie Herzog (@kittypurrzog) May 13, 2019

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Joe Biden still has the big smile.

He’s physically smaller, the same way that Bill Clinton is these days, the way that it’s hard to tell whether it’s because he’s in better shape, or he’s shrunken with age, or it’s a combination of both.

Also like Bill Clinton, the hair has moved past gray into a color approaching white. At least Clinton, unlike Biden, has a full head of it still. If Donald Trump’s orange tint can evoke the late Senator Strom Thurmond, Biden’s locks, color-wise, are more like those of Senator Ernest “Fritz” Hollings, a Biden friend and colleague who died last month at age 97.

In the back of a Hampton, N.H., pizza joint where Biden is campaigning in front of a largely geriatric crowd, a campaign surrogate is telling a reporter that it’s about what you’d expect for a midday, midweek event. I’d been to midday, midweek New Hampshire campaign events for Beto O’Rourke earlier this year, though, that drew younger crowds.

When Biden says Republicans are “going to try to eviscerate the social safety net, Medicare, Social Security,” he’s talking about programs that to many in the room aren’t abstract future promises. He’s wearing a cardigan sweater under his sport coat, as if someone is worried that he might catch a cold.

Biden, 76, is running a campaign that from a message standpoint echoes the one that Trump, 72, ran in 2016.

“I want to restore the soul of this country,” Biden says, “rebuild the backbone of this country.”

Restore, rebuild. The prefix “re” literally means “again,” as in Trump’s “Make America Great Again,” as if Biden, like Trump, somehow wants to turn the clock back.

Even Biden’s economic policy of tax increases gets a “re” frame; speaking of a plan for free community college, Biden says “we can pay for this with the tax cut that we are gonna reverse.”

There “used to be a basic bargain,” Biden says, in which employees shared in the prosperity.

Biden understands the potential political appeal of “used to be,” the warm nostalgia in the hearts and minds of older voters about what they imagine America was before its supposed decline.

He also sounds like 2016-era Trump when he criticizes the economy on the grounds that “people are being left behind,” talking about a closed General Motors assembly line in Delaware.

Biden talks about Warren Buffett complaining that he has a “lower tax rate than my secretary does.” Buffett is 88, which explains why he has a “secretary” rather than voicemail or a personal assistant or executive assistant. The word “secretary” isn’t much used anymore in the contemporary American workplace.

Biden talks about President Kennedy’s speech about going to the moon, a speech delivered in 1962, saying his favorite part of it was Kennedy’s phrase “we refuse to postpone.” Actually, Kennedy called it a challenge “we are unwilling to postpone,” but close enough.

“We have to end it now, this administration,” is what Biden says he wanted not to postpone. Whether the analogy between the moonshot and ousting President Trump makes any sense or has any resonance will be up to the voters.

The moonshot reference is part of a kind of stream of consciousness tour of the policy highlights, or lowlights, of the past 60 years. “There is a whole lot of talk about Biden and the crime bill,” Biden says, referring to himself in the third person, as Biden frequently does. “That’s all Biden, midnight basketball.”

That’s a crime bill that passed in 1994, which was 25 years ago, before some of today’s voters were born.

“I said back in 1987,” Biden says at one point, during a discourse that also hits on the Civil Rights movement, Vietnam, the Iraq War.

The cameras in the back of the room are from C-Span and Fox News, but it’s almost as if the whole thing belongs on the History Channel.

Biden’s attraction to voters seems to be that they think he can win. “Maybe the country’s just not ready for a woman,” is the way Shirley Sylvester, 62, a retired project manager, put it to me.

As a presidential candidate in the 1988 cycle, Biden dropped out before the New Hampshire primary. As a presidential candidate in 2008, he finished sixth in the New Hampshire Democratic primary, behind Bill Richardson and Dennis Kucinich, with 0.22% of the votes. Not 22%, but 22 hundredths of a percent. This time around, he’s got nowhere to go but up, at least New Hampshire-wise.

Perhaps the secret to progress is to cloak it, Trojan Horse-style, in conservative rhetoric. Or perhaps, for better or worse, there is something genuinely backward-looking about elements of Biden’s program that want to undo the Reagan revolution and restore Johnson-era liberalism—”consensus,” Biden called it, invoking a word historians use, somewhat controversially, to describe Cold War-era America.

Biden’s path to victory requires being different enough from Trump to win the Democratic nomination while simultaneously being similar enough to Trump to win a general election. If not, it could be time to dust off some other “re” words—a repeat of Reagan’s 1984 reelection, with Biden reprising the role of Walter Mondale.

Ira Stoll is editor of FutureOfCapitalism.com and author of JFK, Conservative.

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The share of teens with driver’s licenses peaked in 1983, when 72 percent of Americans aged 16–19 were legally approved to drive. Today, only about 50 percent are.

The decline has stupefied many a baby boomer and Gen Xer, who can’t imagine why young people today don’t want to hit the open road. Writing in The Atlantic in May 2018, Penn State professor Gary Cross fretted about the loss of that “magical age of 16, when suddenly a world opened up.” The Washington Post in 2015 dedicated more than 2,000 words to how America’s love affair with cars was “cruising towards oblivion” because those damn kids don’t want to drive.

What do teens actually say? According to a University of Michigan survey, the two most common reasons given for not having a driver’s license were being “too busy” to get one (37 percent) and thinking that owning a car “is too expensive” (32 percent). Most of the teens surveyed (70 percent) said they planned to get a license eventually.

Owning a vehicle was never cheap, but those survey responses suggest there’s simply more competition for teens’ dollars and attention today than in the past. Do you want to spend your money and time fixing up an old car or buying and playing Red Dead Redemption 2?

“Car culture” has always been an American touchstone, but researchers have found similar declines in teen driving rates in Canada, Germany, Japan, and South Korea. The University of Michigan analysis correlates the decline in teen driving with the rise in internet use, suggesting that cyber connectivity and escapism is replacing the lure of the open road—or at least slackening the need to drive to friends’ houses to hang out in person.

But teens holding off on hitting the road isn’t cause for worry. For one thing, it’s probably good for public health. According to data from the Centers for Disease Control and Prevention, more than 2,400 Americans aged 16–19 were killed in car crashes in the United States during 2016—about six deaths per day. That’s down from 7,993 deaths in 1995, and 9,659 in 1985.

As for the loss of car culture? Times change, and social norms evolve—teens don’t rock out to Elvis, the Ramones, or Linkin Park anymore, either. That’s fine. There’s no single reason fewer teens are driving today, and no amount of consternation is likely to reverse the trend.

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A Louisiana mom who was charged with unlawful posting of criminal activity for sharing video of a fight at her son’s school says she plans to sue for unlawful arrest. Maegen Adkins-Barras shared the video on Facebook with the message: “This should not be happening. Why do we have to worry so much about our kids at school?”  The next day, she was asked to attend a meeting at the school, where she was handcuffed and taken to jail. The charge was later dropped.

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Today the Court decided FTB v. Hyatt, overruling Nevada v. Hall and declaring that states have sovereign immunity in other states’ courts. The majority opinion has gotten some rather pointed criticism—largely because it didn’t rely on any particular clause of the Constitution, but rather on general structural concerns.

In my view, Hyatt is an unfortunate opinion—not just because some of its reasoning might be questioned, but because it makes the job of defending originalist doctrine harder. At the same time, though, it may have a silver lining: encouraging a slow, possibly generational shift in legal conservatives’ position on the common law.

A fair amount of what the Court says about the history seems correct. On the Court’s view, states enjoyed sovereign immunity at the Founding; at common law and under the law of nations, they weren’t amenable to judicial process without their consent. While the Constitution abrogated some of that that immunity in federal court (eg, original-jurisdiction suits between states), it didn’t abrogate it entirely (which Chisholm misunderstood, and which the Eleventh Amendment reconfirmed). State sovereign immunity largely survived Article III.

So far, so good. But note that none of this addresses whether another state, like Nevada, can abrogate California’s immunity in its courts, just as it might abrogate any other rule of common law. As Will Baude and I argued in our brief, if the immunity really is a rule of common law and the law of nations—left intact by Article III, and maybe even beyond the limited powers of Congress to alter—a Nevada court would still have to obey a Nevada statute.

That said, though the Constitution lacked any substantive rule on this point, it did offer a powerful procedural protection: the forum state’s inability to get its judgments enforced in other courts. For the first hundred years of the Republic, federal and state courts routinely enforced the common-law and law-of-nations limits on personal jurisdiction and amenability to suit—not by inventing some affirmative constitutional bar, but simply by disregarding judgments that broke the rules (as the Full Faith and Credit Clause permits).

The Hyatt Court didn’t see it that way. Instead, it held that “the Constitution affirmatively altered the relationships between the States.” Because each state retains its “equal dignity and sovereignty,” the Constitution “embeds interstate sovereign immunity within the constitutional design.” The Court also cited a grab-bag of obligations imposed on the states (privileges and immunities, full faith and credit, the denial of war powers or embargoes, etc.), “confirming that [the states] are no longer fully independent nations.” But none of this speaks to the specific question at hand, which is about whether they can abrogate the immunity of other states along with their own. Indeed, it may be less reminiscent of the Court’s recent moves toward textualism, and more reminiscient of earlier efforts to locate constitutional rules in any of a number of clauses at once.

I happen to disagree with the Court’s analysis in Hyatt on the merits, but that isn’t really the point. (The line between ‘Nevada may not hale California into its courts’ and ‘Nevada can go ahead and try, but everyone will just ignore their judgment at the enforcement stage, and also federal courts might be able to enjoin enforcement in appropriate circumstances’ is pretty thin, and courts have mishandled more obvious and consequential distinctions before.) My worry is that a decision like this one, which attributes implicit rules to the Constitution that no one at the Founding seems to have found there, does more to bring careful methodology into disrepute than a variety of less serious errors that courts might make.

Sovereign immunity is really hard; it involves plenty of precise distinctions between what was settled by the text and what was left up to preexisting rules. And because it involves so many preexisting rules, it’s easy to caricature the doctrine as “conservatives making things up outside the text.”  As someone who thinks the Court ought to pay a lot of attention to text, but also that they’ve mostly been right about sovereign immunity doctrine thus far—a “rara avis,” like David Currie or Will Baude—taking care with these distinctions is especially important.

So why were the right-leaning members of the Court willing to write (or sign off on) a relatively un-textualist opinion? I don’t think it’s as reductionist or conspiratorial as “conservatives like sovereign immunity and liberals don’t.” I think the Justices in the majority joined the opinion because they believe it to be correct. Consider an extended passage toward the end of the opinion, which described the many interstate cases in which no state has power to conclude the claims of another (border disputes, water rights, etc.). Surely something provides that states can’t declare by statute that they own New Jersey, or have better water rights than their neighbors, and so on. Why wouldn’t that same something prevent Nevada from concluding California’s claims here? If structural inferences are ever justified—and sometimes they are—why would they be unjustified when it comes to doctrines of sovereign immunity, in which the Founders also believed?

Of old, the mysterious “something” in all this would have been doctrines of general law—rules of common law, equity, the law of nations, conflict of laws, and so on, which governed matters as to which federal law was absent and no state was competent to legislate. These included, among other things, the rules of personal jurisdiction and judgment recognition that would have kept the states safe from each others’ courts. (See also Eugene’s point, about the Court’s reliance on “established law and practice” respecting such topics as judicial review, executive removal, etc.)

As it happens, we’ve had 80 years of Erie trying to persuade us that general law can’t exist, and that unwritten law generally is the preserve of willful judges—whether as a matter of “federal common law” invented by federal judges, or of state common law invented by state judges, for “there can be no other law.” So it’s not surprising that, faced with a problem to which the Founders obviously had some answer, and deprived of the relatively straightforward and intuitive vocabulary in which that answer might originally have been framed, we get structural reasoning instead.

The silver lining in all this, though, is that this view may be starting to recede. The scholarly consensus against Erie seems to be building. The younger generation of originalists, textualists, etc., seems increasingly comfortable with our historical reliance on general law, and increasingly attentive to the role that this law plays in a divided system of federal and state courts. Decisions like Hyatt might, in the end, be some of the last of their kind: if the alternative is an unwritten “equal dignity” clause, general law starts to look pretty good. 

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