ConLaw Class 20 – Economic Liberty II

Class 20 – 3/28/17

Economic Liberty II

  • West Coast Hotel v. Parrish (897 – 901)
  • United States v. Carolene Products (901 – 905)
  • John Hart Ely, Democracy and Distrust Excerpt (906)
  • Lee Optical of Oklahoma v. Williamson (910 – 915)
  • Williamson v. Lee Optical of Oklahoma (916 – 917)
  • Milnot Company v. Richardson (918 – 921)

The class notes are here.

West Coast Hotel v. Parish

This is the West Coast Hotel is Wenatchee, Washington.


United States v. Carolene Products

First, here is Carolene Product’s famous footnote four:

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. See Stromberg v. California, 283 U.S. 359, 369-370Lovell v. Griffin, 303 U.S. 444, 452.

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273 U.S. 536;Nixon v. Condon, 286 U.S. 73; on restraints upon the dissemination of information, see Near v.Minnesota ex rel. Olson, 283 U.S. 697, 713-714, 718-720, 722Grosjean v. American Press Co., 297 U.S. 233Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v.California, supra, 369Fiske v. Kansas, 274 U.S. 380Whitney v. California, 274 U.S. 357, 373-378;Herndon v. Lowry, 301 U.S. 242; and see Holmes, J., in Gitlow v. New York, 268 U.S. 652, 673; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U.S. 353, 365.

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U.S. 510, or national, Meyer v. Nebraska, 262 U.S. 390Bartels v. Iowa, 262 U.S. 404Farrington v. Tokushige, 273 U.S. 484, or racial minorities,Nixon v. Herndon, supraNixon v. Condon, supra: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare McCulloch v. Maryland, 4 Wheat. 316, 428South Carolinav. Barnwell Bros., 303 U.S. 177, 184, n. 2, and cases cited.

I have collected a fortune of information about Carolene Products, Charles Hauser (the President), and his return trip to the Supreme Court which resulted in an affirmed conviction, and a pardon by President Roosevelt. Three decades later, a district court in Illinois found the federal Filled Milk Act Unconstitutional.

As a result of United States v. Carolene Products (1938), the Carolene Products company changed the name of their product from “Carolene” to “Milnut” at some point in 1938. I previously acquired a Carolene Products Cookbook from 1939, labelled as “Milnut.”


Now, thanks to a successful eBay bid, I am the proud owner of a Carolene Products cookbook from 1937 (before the Supreme Court case!). It is labelled as “Carolene” with the same logo.

2014-03-09 13.13.57


Note how it is called a “Scientific Milk Product.” After 1938, the advertisements did not call it “Milk” to avoid problems under the Federal, and state Filled Milk Acts.


Who want’s some frizzled dried beef or baked ham slice?

As well, here is the history of the Carolene Products company from, with some interesting photos.






The Seneca plant that was built right on the border with Oklahoma, in a means to work around (literally) the Filled Milk Act. I have more details on the Seneca plant here. The plant is still in operation today, operated by the Sumker’s company (you can order Milnot online! – I have a case).


Here is a copy of FDR’s pardon of Charles Hauser, President of the Carolene Products company.

Here is a copy of the remission of imprisonment, which I received from Hauser’s granddaugther. Note that the year 1944 is printed, and someone scribbled over it 1945.

Charles Hauser pardon0001

Williamson v. Lee Optical

Here is how a lensometer works.

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Prop1 Class 20 – Marital Property III – Community Property

Class 20 – 3/28/17

Marital Property III – Community Property

  • Community Property, 410-412
  • Common-Law Concurrent Interests, 412-413
  • Problem, 413
  • Management of Community Property, 413-414
  • Problem, 414-415
  • Mixing Community with Separate Property, 415
  • Problems, 416
  • Migrating Couples, 416-417
  • Problem, 417-418
  • Texas Marital Property Law
  • Rights of Domestic Partners, 418-419
  • Notes on Same-Sex Marriage, 438-440

The lecture notes are here.

This is the section of the Texas code that governs equitable distribution of community property after a divorce:

Sec. 7.001.  GENERAL RULE OF PROPERTY DIVISION. In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.

Sec. 7.002.  DIVISION AND DISPOSITION OF CERTAIN PROPERTY UNDER SPECIAL CIRCUMSTANCES. (a) In addition to the division of the estate of the parties required by Section 7.001, in a decree of divorce or annulment the court shall order a division of the following real and personal property, wherever situated, in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage:

(1)  property that was acquired by either spouse while domiciled in another state and that would have been community property if the spouse who acquired the property had been domiciled in this state at the time of the acquisition; or

(2)  property that was acquired by either spouse in exchange for real or personal property and that would have been community property if the spouse who acquired the property so exchanged had been domiciled in this state at the time of its acquisition.

(b)  In a decree of divorce or annulment, the court shall award to a spouse the following real and personal property, wherever situated, as the separate property of the spouse:

(1)  property that was acquired by the spouse while domiciled in another state and that would have been the spouse’s separate property if the spouse had been domiciled in this state at the time of acquisition; or

(2)  property that was acquired by the spouse in exchange for real or personal property and that would have been the spouse’s separate property if the spouse had been domiciled in this state at the time of acquisition.

(c)  In a decree of divorce or annulment, the court shall confirm the following as the separate property of a spouse if partitioned or exchanged by written agreement of the spouses:

(1)  income and earnings from the spouses’ property, wages, salaries, and other forms of compensation received on or after January 1 of the year in which the suit for dissolution of marriage was filed; or

(2)  income and earnings from the spouses’ property, wages, salaries, and other forms of compensation received in another year during which the spouses were married for any part of the year.

Here is a recent story, similar to the W.C. Fields case,where a mistress is ordered to pay her dead lover’s wife:

Kathie O’Keefe, a former lounge singer turned political activist, spent two “happy” decades with another woman’s husband and now she’s being ordered to pay up.

When her former lover, Jack McCarthy, died 16 months ago at age 78, O’Keefe made a claim against the estate of the wealthy real estate broker.

O’Keefe, 69, wanted a watch and ring he had given her, and the $200,000 she said he promised her.

Not only was O’Keefe turned down, but McCarthy’s wife of 30 years, Margaret, turned the tables and sued.

Now, according to a court ruling in favor of Margaret McCarthy, O’Keefe owes $200,000, to her dead lover’s family.

“I was really shocked,” O’Keefe said on ABCNEWS’ Good Morning America. “I thought of it as a nuisance suit and I didn’t think they had a chance of actually getting a judgment against me,” she said.

McCarthy’s wife relied on an obscure 90-year-old Washington law that forced O’Keefe to account for all the gifts and money he’d ever given her — and pay it all back in cash.

“It doesn’t matter to me if it’s $200,000 or $2 million,” she said. “I didn’t do anything wrong. It was Jack who broke the law and I don’t think I should be punished for the sins of a dead man,” she said.

George Smith, O’Keefe’s lawyer, said the court’s ruling now exposes every extra-marital partner in the area to serious financial risk.

“The old law says, and it’s still in effect, that one spouse cannot gift community property to an individual without the consent of the other spouse,” Smith said. “I think the girlfriend should look at the heading on the check, and if it says, ‘the account of Mr. and Mrs.,’ she’s got problems coming down the road.”

The McCarthy estate demanded $400,000, but after the court ruling, both parties reached a settlement.

The McCarthy estate’s lawyer, Kurt Olson, said things might have been different for O’Keefe if she had what she claimed McCarthy promised in writing.

“If it were a legitimate claim that she was asking for, if she had some evidence that he had intended to give her the money, then obviously that would heve been very important to the estate,” Olson said. “If there was any writing if it had been in any estate planning documents that would have been very relevant but we had nothing except for her word about what a deceased person had said according to her,” he said.


Under California community property law, gifts given by the husband to a mistress, without the wife’s permission, can be set aside by the wife. This is precisely what happened to Donald Sterling, former owner of the Los Angeles Clippers, who gave millions of dollars of gifts to his mistress V. Stiviano. Shelly Sterling, Donald’s wife, sued Stiviano. In 2015, a court ruled that Stiviano was required to pay back more than $3 million to the Sterlings.

Former Los Angeles Clippers owner Donald Sterling had no right to spend millions of dollars to give luxury cars, a duplex and other gifts to his alleged mistress, V. Stiviano, an attorney for Sterling’s wife told a Los Angeles County judge Wednesday.

The lawyer’s assertion came during opening statements of a trial in which Shelly Sterling is attempting to recoup more than $3 million in gifts that she alleges Stiviano seduced Donald Sterling into giving her.

Stiviano was at the center of last year’s controversy that led to Donald Sterling being stripped of his ownership of the NBA team after she recorded him making racially charged remarks.

Attorney Pierce O’Donnell, who represents Shelly Sterling, told Superior Court Judge Richard L. Fruin Jr. that Donald Sterling used community property — assets he legally shares with his wife — to pay for gifts to Stiviano, including a Ferrari, two Bentleys, a Range Rover, a duplex near Beverly Hills and a Paris shopping spree.

“He’s an older, vulnerable man, susceptible to the wiles of a younger woman, like the defendant,” O’Donnell told the judge.

Stiviano, seated with her attorney in the downtown L.A. courtroom, glared and shook her head.

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Initial En Banc

The courts of appeals permit cases to bypass the three-judge panel, and proceed directly to the full en banc court.For  my discussion of Hobby Lobby in Unraveled, I researched initial en banc, and found about two dozen instances over the last three decades where the three-judge panel was skipped. It is rare, but not unheard of. In recent years, the 10th Circuit heard Hobby Lobby through initial en banc, as did the D.C. Circuit for the Clean Power Plan case. However, the 11th Circuit denied initial en banc review in Florida v. HHS (the Obamacare litigation).

The 4th Circuit has asked the parties to state their position on “the appropriateness of initial en banc review.” If ever there was a case that screamed for expedited treatment, it is this one.

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Historical Rules of the Supreme Court (1790-Present)

Last week, with zero fanfare, the Supreme Court posted the rules of the Supreme Court dating all the way back to 1790. I reviewed the first PDF, which includes rules from 1790 till 1850.

The Court also posted the journals of the Supreme Court from 1889 to 1992. For example, on May 1, 1890 (Bates #67, page 147 of PDF), you see the notation that “Grover Cleveland, of New York City” was admitted to practice. Yes, former-President Cleveland.

I summarize the highlights in this Twitter moment.

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Presidential Maladministration will be published in the Illinois Law Review

My new article, Presidential Maladministration, will be published in the Illinois Law Review. This timely article analyzes how courts should consider the President’s influence in rulemaking process. Here is the abstract:

In Presidential Administration, then-Professor Elena Kagan re-envisioned administrative law through the lens of the President’s personal influence on the regulatory state. Rather than grounding Chevron deference on an agency’s “special expertise and experience,” Kagan would “take unapologetic account of the extent of presidential involvement in administrative decisions in determining the level of deference to which they are entitled.” The stronger the President’s fingerprints on the executive action, a practice she praises as “presidential administration,” the more courts should defer.

There is a flipside to Kagan’s theory: four species of high-level influence, which I describe as “presidential maladministration,” are increasingly problematic. First, where an incoming administration reverses a previous administration’s interpretation of statute, simply because a new sheriff is in town, courts should verify if the statute bears such a fluid construction. Second, where an administration discovers a heretofore unknown power in a statute that allows it to confer substantive rights, courts should raise a red flag, especially when the authority exercised was one Congress withheld. Third, where an administration declines to enforce a statute that Congress refuses to repeal, under the guise of prosecutorial discretion, courts should view the action with skepticism. Fourth, where evidence exists that the White House attempted to exert its influence, and intrude into the rulemaking process of independent agencies, courts should revisit the doctrine concerning altered regulatory positions.

As the Federal Register turns the page from Obama to Trump, this article provides a timely analysis of how courts react to unpresidented approaches to maladministration.


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“Snowflake” Standing based on the Executive Order’s “Message” in Hawaii v. Trump

Hawaii v. Trump’s nationwide injunction not only barred the provisions of the revised order concerning the issuance of visas, and the denial of entry, but also halted provisions that instructed the Secretaries of State and Homeland Security to undertake a review of other nations that may be subject to heightened vetting.

The Trump Administration argued that the injunction was overbroad because plaintiffs cannot assert standing to challenge “internal-facing” aspects of the executive order. This argument was premised on the fact that one of the plaintiffs, Dr. Elshikh, could only assert an injury because his Syrian mother-in-law was not yet denied a visa. Therefore, any possible injury was not yet ripe.

The district court rejected the argument that the claim is not yet ripe (pp. 25-26):

The Government argues that “the only concrete injury Elshikh alleges is that the Order ‘will prevent [his] mother-in-law’—a Syrian national who lacks a visa—from visiting Elshikh and his family in Hawaii.” These claims are not ripe, according to the Government, because there is a visa waiver process that Elshikh’s mother-in-law has yet to even initiate. Govt. Mem. in Opp’n to Mot. for TRO (citing SAC ¶ 85), ECF No. 145.

The Government’s premise is not true. Dr. Elshikh alleges direct, concrete injuries to both himself and his immediate family that are independent of his mother-in-law’s visa status. See, e.g., SAC ¶¶ 88–90; Elshikh Decl. ¶¶ 1, 3.10 These alleged injuries have already occurred and will continue to occur once the Executive Order is implemented and enforced—the injuries are not contingent ones.

I understood this passage to suggest that the provisions that could affect his mother-in-law inflicted an injury, even though she might ultimately receive a visa through the waiver program. Thus, the claim is ripe. This discussion seemed wrong, in my mind, but utterly unremarkable.

Hawaii’s response reads this discussion in a much broader way.

Now Defendants urge for the third time (Opp. 19) that Dr. Elshikh’s standing is entirely derivative of the harms to his “mother-in-law.” For the third time, Defendants must be told that “is not true.” Op. 26; Dkt. 228, at 6. “Dr. Elshikh alleges direct, concrete injuries to both himself and his immediate family that are independent of his mother-in-law’s visa status.” Op. 26.

I pause to note, again, that the court’s analysis on p. 25-26 concerned ripeness, not standing. Though the inquiries are related, they are not the same.

Hawaii’s discussion proceeds to bleed this expanded notion of standing into the Establishment Clause analysis:

And contrary to Defendants’ representation (Opp. 18), those alleged harms are not limited to “the suspension-of-entry provision” in Section 2. Dr. Elshikh’s declaration discusses at length the harms inflicted by “the Executive Order” as a whole and “the message” in “convey[s]” to him, his family, and his mosque. Op. 24; see, e.g., Dkt. 66-1 ¶ 4 (describing “knowledge” that the government would “discriminate” based on “religious beliefs”); id. ¶ 7 (referring to the impression that the Order “targets Muslim citizens because of their religious views”). The complaint, moreover, states that “Sections 2 and 6 of President Trump’s March 6, 2017 Executive Order are intended to disfavor Islam.” SAC ¶ 107; see also id. ¶ 90.

Note that all of the above citations come from the complaint. Though they were quoted in the decision, the court did not adopt those findings. Here is the key conclusion:

Defendants assert that they cannot see how the Order’s various refugee provisions and its “internal-facing” requirements “could have injured” Dr. Elshikh. Opp. 20, 25-26. But Dr. Elshikh’s claim is that all of these provisions are part of the President’s policy of discrimination, and all of them convey the message that Muslims are outsiders and threats to national security.

This is the crux of the argument. Because Dr. Elshikh perceives a “message” from the entire executive order that “Muslims are outsiders and threats to national security,” there is now standing to raise Establishment Clause challenges to the entire order–even the “internal-facing” aspects that cannot have any possible impact on anyone (until adopted).

That is unquestionably sufficient to establish an Establishment Clause injury. See Catholic League for Religious & Civil Rights v. City & Cnty. of San Francisco, 624 F.3d 1043, 1048 (9th Cir. 2010) (en banc) (holding that “adherents to a religion have standing to challenge an official condemnation by their government of their religious views”). Defendants may attempt to refute Plaintiffs’ claims about purpose and the message conveyed, but that is their defense on the merits, not a basis for denying Dr. Elshikh standing to raise the claim.

This claim sounds in Mike Dorf’s “structural” theory of the Establishment Clause. That is, Trump’s sectarian purpose is no longer a necessary condition to enjoin the order, because of how the order is perceived by Muslim-Americans–even as applied to internal-facing actions that will not directly impact anyone.

I’ll call this the “snowflake” theory of standing: the order can be challenged as unconstitutional because of how it makes you feel. Even if the internal review policy is designed to focus on immigration policies for countries that are not predominantly Muslim, because of the “message” it conveys, the review is unconstitutional. This “snowflake” theory of standing melts on the closest of inspection. Far beyond the level of scrutiny established in McCreary, now courts can literally ask people how they feel–even if the law lacks a sectarian purpose–and use those sentiments to enjoin an otherwise lawful action. Again, this inquiry is different from asking if a reasonable, objective observer would see the action as an establishment of religion under McCreary. Rather, the question is whether the order–even if it otherwise passes the Lemon test–makes Dr. Elshikh, or another Muslim-American perhaps, perceives a discriminatory message.

There is a perversity to this strand of reasoning, which was highlighted by EDVA’s decision in Sarsour v. Trump. By preventing the Secretary of State from undertaking a review of how to transform our immigration policy–even in response to judicial orders–the court has “effectively disqualified him from exercising his lawful presidential authority.” In other words, the President can’t even attempt to cure the “forever taint” because his administration is enjoined from considering the issue.  Perpetually, so long as people perceive the President’s actions as having an anti-Muslim animus, the President is permanently disabled–even if the action itself has nothing to do with religion.

And by no means is this limited to the President’s immigration actions. This “snowflake” theory of standing would allow people to raise claims to challenge a whole host of actions that are traditionally beyond the cognizance of federal courts. As I noted on Politico:

Imagine if Trump were to announce that he wants to conduct drone strikes in Syria to root out “radical Islamic terrorists”? Could a court halt the actions, finding they were motivated by the same anti-Muslim animus the president expressed on the campaign trail? Or, could a court halt an executive action for supposedly bearing animus toward women, by citing the president’s infamous rapport with Billy Bush on “Access Hollywood”? Nothing Trump can do would ever eliminate that taint.

The basis for this injunction is not only nationwide, but also omnipresent–nothing can be done to escape it in all aspects of the President’s administration.

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