2011 in review: The top 20 legal stories, part 4

December 28, 2011

Top 20 of 2011(Editor’s note: Throughout December, the last month of the year, we’ll be looking at the top 20 legal events of 2011, as chosen by the Westlaw Insider editorial staff.)

Click here for part 1.

Click here for part 2.

Click here for part 3.

Certiorari granted to Florida v. Department of HHS

Although it should have come as a surprise to no one that the Supreme Court agreed to hear (one of) the challenges to the sweeping health care reform law of 2010, it’s still one of the biggest legal events of 2011.

With oral arguments set for the end of March 2012, a decision will likely be handed down at the end of the Supreme Court’s current term in June.

Although earlier I predicted that the Supreme Court will uphold the individual mandate’s constitutionality, the Justices are notoriously unpredictable, so it’s really anyone’s guess how it will come down.

Either way the ruling comes down, it will do so in the midst of the 2012 election season, wherein it will, in all probability, be used by both sides to gain an electoral advantage.

Brown v. Entertainment Merchants Association

Scalia in Brown v entertainment merch assnThe Supreme Court handed down this decision this past June, which struck down a California law that banned the sale of violent video games to minors.

The decision was hailed by video game makers and gamers, and spurned by parent groups.

Legally, though, the decision is significant, at least in regards to obscenity jurisprudence.

Specifically, the Court held that obscenity restrictions on speech generally applied only to sexual, and not violent, speech.

In a post written shortly after the decision, I stated that this was a hypocritical position.

Regardless, though, the 2011 decision is a landmark one, and one that will surely find its way into constitutional law lessons on obscenity.

The Stop Online Piracy Act and the Protect IP Act

These two bills, or SOPA and PIPA, as they’ve become known, are purported to stop online piracy, and are being heavily pushed by Hollywood and other big IP owners.

The problem with both is that neither would do a very good job.

To illustrate this point, imagine a wall with a nail sticking out of it (the wall is the Internet, and the nail is piracy).

To hammer the nail into the wall (to attack online piracy), SOPA and PIPA would ram a semi-truck into it.

While it may or may not succeed in attacking online piracy, it takes the entire Internet down in the process.

Is it really that bad?

Computer NukeJust ask the countless tech-minded organizations, individuals, and companies who are vehemently opposing the two bills (including the engineers responsible for the creation of the Internet).

Although SOPA, the House version, is much more extreme than PIPA, its Senate counterpart, both would erase the Internet as we now know it.

Some of you reading this may be confused because you’ve never heard of either of these bills.

That’s probably because most mainstream media outlets are among the heaviest supporters of the bills, and there’s been a near blackout of coverage on them.

There’s just too much detail of them to cover here, but a simple Google search for either will give you plenty of material on them.

Legally speaking, is it unconstitutional?

According to Harvard constitutional law professor Laurence H. Tribe, definitely.

That fact may not undo the damage done by either if passed (before a court can enjoin it).

Although neither bill is law yet, nor will be in 2011 (but they still may in 2012), 2011 was still a milestone.

Despite the lack of media coverage surrounding the two bills, and the board bipartisan support they both enjoy, there has been almost unanimous opposition to them on the Internet.

So strong has this opposition been that their once certain passage is now in doubt.

Whether this momentum continues into 2012 strongly enough to stop the bills altogether remains to be seen.

Occupy Wall Street

No, Occupy Wall Street by itself isn’t a legal movement.

Occupy Wall Street 1

But the legal implications are very real, nonetheless.

On the most basic level, OWS’s clashes with municipal entities have spawned lawsuits on topics spanning from First Amendment speech violations to false arrests (see this post and this post for examples of such suits).

On a broader scale, OWS has shifted the public’s attention toward income inequality and harnessed and focused anti-Wall Street sentiment.
This may well transfer to the 2012 elections, depending on whether the movement can keep its momentum until then (this post discusses the possibility in greater detail).

Thus, although OWS was a major legal milestone of 2011, we may have to wait until 2012 to assess its full impact.

Chamber of Commerce v. Whiting

The issue of immigration is unique in that it is very divisive even among members of the same political party.

This divide is especially prominent among conservatives:

One side is the laissez-faire bloc advocating for the lowering or elimination of immigration barriers to increase labor market competition.

The other side with the more nationalist slant seeks to preserve the country’s historic ethno-cultural character by limiting immigration.

Immigration LawChamber of Commerce v. Whiting is a textbook example of that divide.

Arizona passed a law that allowed the state to effectively kill any business that hired illegal immigrants.

Challenging the law was the unabashedly pro-business U.S. Chamber of Commerce.

 The Supreme Court’s conservative wing came down on the side of the nationalists, ruling against the Chamber of Commerce.

As I stated a week after the ruling was handed down, the majority overexploited a loophole to reach their desired result, and this makes a statement in itself:

In future immigration cases, the Court’s conservatives are likely to find any possible legal routes to arrive at the pro-nationalism result.

And with Arizona v. U.S. on the Court’s current docket, we’ll be able to see relatively quickly if this theory is accurate.