Judicial

Some businesses support regulation



Our country’s system of safeguards is good for American business as
 well as for the public’s health and the environment.  You would never 
know this, however, from reading the news out of Washington, which is 
dominated by reports on the antipathy to regulation of the business 
lobby and its Republican allies in Congress.



I was reminded of the more complex views of business toward regulation
 the other day when I dug up news reports on the salmonella outbreak in
 peanut products a little less than two years ago.  Nine people died
 and hundreds were sickened in the outbreak that was traced to
 contamination at a facility in Georgia of the Peanut Corporation of
 America. In his testimony before Congress, David Mackay, then president of the Kellogg Company, reported that the company recalled seven million
 cases of Keebler cookies and other peanut-based products, and revamped
 its internal controls.



He also asked the Federal government to play a greater role in food
 safety inspection.  He urged Congress to establish a single agency
 with responsibility for food safety, to undertake annual inspections 
of food processing plants that were particularly vulnerable to disease
 outbreaks, and to enact into law federal authority to recall food 
products directly (instead of relying on voluntary compliance). In 
short, he asked the federal government for more regulation. 
With the support of the Grocery Manufacturers of America, other 
interests Congress incorporated these and other reforms in the Food
 Safety and Modernization Act (FSMA) of 2010. Among the many 
provisions of the law are the beginnings of safeguards to protect 
against illnesses resulting from imported food.



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Requirements within the Lobbying Disclosure Act

The Lobbying Disclosure Act requires registrants to disclose on a quarterly basis specific information describing the nature of a lobbyist’s activities.  Much of what is required is straightforward, such as the name of a client, the amount of fees earned, and the entities that are the subject of the lobbying.  One area where there is discretion, however, is in describing the issues on which a registrant has been engaged.

To comply with the letter and spirit of the law, a lobbyist must adequately describe the nature of the activity, but beyond meeting the legal requirements, a lobbyist should carefully choose the words that are used to describe the activity.  According to reports about the activities of lobbyists assisting a controversial client currently being scrutinized by Congress, it appears that isn’t always the case, and could have adverse consequences for the client.

Section 5(b)(2)(A) of the LDA requires the disclosure of specific issues upon which a registrant is engaged to lobby.  Official LDA guidance requires a lobbyist to disclose the bill number of any legislation on which they are working and, more specifically, any particular sections of that legislation that is the focus of their activity.  Similarly, if a lobbyist is attempting to influence an executive branch rulemaking, they should adequately describe the pending rule and any specific sections.  The bottom line is that a lobbyist must disclose enough to inform the public adequately of their client’s specific issues.

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High Court will impact election

The Supreme Court term that began this week will be remembered not for the important cases already on the High Court’s docket, but for the four blockbuster cases knocking on the Court’s door.
 
The four cases will likely make this the most important term in decades, while focusing Americans on several of the nation’s most emotional and divisive issues – illegal immigration, health care reform, gay marriage, affirmative action, and overreaching federal power – at the perfect time to influence the 2012 election.
 
The rulings in those cases and the ages of several Justices will make the Court’s legitimacy and future direction prominent campaign issues as well.
 
When the Obama Administration signaled last week that it wouldn’t delay a Supreme Court decision on the constitutionality of ObamaCare, the last piece fell into place for an historic term.  Within days, petitions for Supreme Court review were filed in Florida v. Health & Human Services, in which 26 states are challenging the new health care law.  The timing guarantees ObamaCare a dominant role in the election debate.

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Paul Oetken: Living proof that it does get better

Sen. Schumer delivered the following remarks on the Senate floor Monday following the confirmation of J. Paul Oetken to serve as a federal judge on the U.S. District Court for the Southern District of New York. Oetken is the first openly gay man to be confirmed to serve on the federal bench.

It is my distinct honor to rise in support of Paul Oetken’s confirmation to the bench of the Southern District of New York. We have a very deep pool of legal talent in New York, but Paul’s nomination is one that everyone is talking about.

Paul is brilliant, well-rounded, and unwavering in his dedication to public service and his commitment to the rule of law. His confirmation will only improve the workings of one of the best and busiest courts in the country.

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Free speech is just that – “free”

When the U.S. Supreme Court ruled June 27 that states cannot forbid the sale or rental of video games to children, it punctuated two terms remarkable for the court’s support for free expression –  in cases remarkable for speech that many, if not most, of us really, really dislike.

In  Brown v. Entertainment Merchants Association, the court’s  7-2 decision voided a never-enforced California law that banned the sale or rental to children age 17 and younger of video games involving violence, gore and assault.

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The death penalty: 35 years of a failed experiment

Thirty-five years ago this week, the U.S. Supreme Court brought back the death penalty, reasoning that judges and juries could be provided with enough guidance to identify the offenders most deserving of capital punishment. After three and a half decades of experimentation, it is time to admit the obvious: if the ultimate punishment cannot be applied fairly, it should not be applied at all.
 
Indeed, the haphazard way death sentences are meted out caused three of the justices who voted to reinstate the death penalty to change their minds, and express regret that they did not end the death penalty.

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Stopping the patent troll scam

Lawsuits over patents have become big business. How big? Google this year bid $900 million for 6,000 technology patents and patent applications held by bankrupt Canadian phone-equipment maker Nortel just to minimize the likelihood of being sued by so-called “patent trolls” -- companies or individuals who buy up patents, not to incorporate them into products and services, but to file nettlesome infringement litigation.

Over the past several years, patent trolls have become the biggest players in patent litigation, which annually yields billions of dollars in settlements and verdicts. But a balanced provision in the patent reform bill working its way through Congress will help protect many of our productive companies from these trolls. Section 18 of the legislation would establish an extra layer of review of patents on financial products and services by experts at the U.S. Patent and Trademark Office. Doing so would boost the economy by reducing the abuse of the civil justice system.

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Big mergers: Distinguishing the public interest from special interests

Washington will almost certainly have to deal with a host of proposed mergers in the next few years as markets respond to accelerating forces of technological change and global competition. At the top of the list right now is the ATT/T-Mobile deal, which generated a lot of heat at a House Judiciary Committee meeting just last week.

Herewith, a few observations gleaned from watching the merger scene over the last two decades...

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Drug policies must be rooted in science

Last week, the Global Commission on Drug Policy issued a report calling for the decriminalization of illicit drugs based on the notion that global efforts to reduce drug use have been a failure. Certainly, given the stature of the Commission and the long-term challenge of drug policies both nationally and internationally, the Commission’s message may appear compelling at first. But there are serious flaws with both the report’s conclusion and its proposed remedy. 

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Why the Senate should reject Goodwin Liu

Sen. McConnell made the following remarks on the Senate floor Thursday regarding the nomination of Goodwin Liu to the Ninth U.S. Circuit Court of Appeals:

Over the past two years, our nation has been engaged in a great debate about the kind of country we want America to be — a place of maximum liberty and limited government, or a place where no problem is too big or too small for the government to get involved.

This debate arose because of a president who made no apologies about wanting to move America to the left; and it continues today, despite widespread opposition to the president’s policies, because of the president’s clear determination to forge ahead.

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