Eviction Moratorium Faces Legal Challenges

In today’s episode, David and Sarah discuss the Biden administration’s flip-flop on extending the eviction ...

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In today’s episode, David and Sarah discuss the Biden administration’s flip-flop on extending the eviction moratorium and how it’s almost certainly an unconstitutional violation of the nondelegation doctrine. They then take on the legal implications of Andrew Cuomo’s sexual harassment controversy, with Sarah explaining why Cuomo’s office was a textbook case of a severe and pervasive hostile work environment. Next, our hosts review a ruling from the 7th Circuit upholding Indiana University’s vaccine mandate and discuss how Twitter posturing on vaccines doesn’t always hold up in court. Finally, David and Sarah talk Facebook and antitrust law—something that, according to Sarah, may just be made up anyways.

Show Notes:

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  1. Avatar photo
    Bill Dyer (aka Beldar)

    [LOUD rumbly throat-clearing:] I, sir, have done this for a living! And I agree in part, but dissent in part, from Ms. Isgur's opinion that antitrust law is "just made up."

    Note my use of the past tense. When I attended law school in 1977-1980, the two hot subjects were antitrust and securities law, because they corresponded to the most lucrative and exciting and thriving practice areas of what's now called BigLaw. The firm I joined after my clerkship, Houston's Baker Botts, at that time had an antitrust department separate and apart from its general litigation department, and that was common at most large commercial law firms. Taking not just the beginning antitrust or securities law course, but ADVANCED courses, was considered a good idea for someone hoping for a BigLaw career. When I interviewed for a summer clerkship with Cravath, Swaine & Moore, my last interview of the day was with their newest partner, who'd not only done nothing but antitrust work for his entire time (8 years; he was a star whose name you'd recognize) as an associate, it had all been for ONE CLIENT, viz, International Business Machines Corporation aka IBM. And the overwhelming majority of his work had been on one CASE, that being the DoJ's multi-year and ultimately pointless attempt to bust up or otherwise punish IBM under Sherman section 2 prohibition against monopolizing or attempting to monopolize.

    But in the mid-1980s, in large part due to the influence of conservative economists on the Reagan DoJ, the age of the "antitrust rule of reason" genuinely began. What had been a slow evolution of the caselaw interpreting these incredibly broad and undefined statutory prohibitions suddenly snowballed. And as a direct result, the number — and national economic consequence — of DoJ and FTC legal actions plummeted, as did the number of private-party antitrust lawsuits. BigLaw firms mostly folded their antitrust departments back into their general litigation departments, because their antitrust partners otherwise couldn't kill what they ate (i.e., generate enough profits to justify their presence in the firm) and had to branch back out. In the first 10 years of my career, I worked on a LOT of antitrust cases, including big sexy takeover cases. During the second through fourth decades of my career, I've only occasionally had any opportunity to be involved in an antitrust case, and those I have had have been relatively small-scale (eight figures or less in dispute).

    Where I concur about antitrust law being largely "made up" is my agreement that as presently practiced, liability depends now overwhelmingly on court-devised elaborations on the barebones statutes. It's not like tax law, where the legislature and a federal agency have written spectacularly detailed statutes and regulations which the courts can discern and (comparatively) readily apply. It's at the other end of the spectrum.

    Who's to blame for this? CONGRESS! Since at least the mid-1960s, they've been unable to either fix or elaborate on the existing statutes, nor to repeal them outright — much less replace them intelligently. (Everyone knows — judicial notice may be taken — that if you get six economists in one room, they'll produce at least 20 mutually inconsistent opinions.)

    My disagreement with Ms. Isgur, then, is almost entirely one of semantics. And this may be, and probably is, a case at me shouting at her to get off my lawn, given that she was speaking to a mixed legal and lay audience of the excellent AO podcast, rather than writing for a court or law review.

    "Made up" suggests arbitrariness. Even though I hope Ms. Isgur didn't intend that inference, I fear that it's an inescapable one unless overtly & expressly qualified.

    And I think that's an unfair and incorrect characterization of the courts' efforts to handle the punt Congress has made to them.

    Antitrust law is still relevant in the 21st Century. Here, for example, is a beautiful state-of-the-art explanation from the Second Circuit (cert since denied) in 2014, in which Apple Inc. was adjudged to have violated Sherman section 1 through its leadership of an international price-fixing conspiracy (a "contract or combination in restraint of trade") whose purpose and effect was to prevent price competition among resellers (principally Amazon.com) of e-books. U.S. v. Apple: https://scholar.google.com/scholar_case?case=1610466760546019683

    Hard-core law nerds will note that the Second Circuit, adhering closely to both the language of section 1 and the substantial judicial gloss thereupon, analyzed the case under both "per se" and "rule of reason" standards. Either way, Apple was guilty, guilty, guilty.

    And here's an even more recent explanation, from a well-regarded federal district judge in CDCA this past year, in which that self-same Apple fended off efforts by its rival, Epic Games, to prove that Apple had violated Sherman section 2 (monopolizing or attempting to monopolize): Epic Games, Inc. v. Apple, Inc.: https://scholar.google.com/scholar_case?case=3462284300073408989

    Hard-core law nerds will again note that the U.S. District Judge rejected both Epic's attempt to define the relevant market as "Apple's App Store" and Apple's attempt to define it as "all video games." The court properly mocked Epic for trying to establish that Apple doesn't compete with anyone and is therefore a "market of one." (That's an EPIC-ly stupid argument.) The court ended up defining the relevant market as "digital mobile gaming transactions."

    I think both of these courts got it right. But even if you do no more than skim the introductions to each of these incredibly long opinions, I think you will agree that neither the Second Circuit nor the US District Judge in California were "making anything up." They were applying past precedents in complete good faith, playing the bizarre hand that Congress dealt them, in which jokers, twos, threes, sevens, and (on every other Thursday) one-eyed jacks are all wild.

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    Ben Connelly

    Loved this episode! One of my favorites of the recent AO non-alien episodes. The Biden admin’s eviction moves make me mad. It still bothers me when presidents knowingly do unconstitutional things even when every president does/has. This pushes me more into the camp of the landlords (even though I’m not one myself). COVID is basically over. Stop taking emergency powers too far.

    Glad Cuomo’s getting his comeuppance. Couldn’t have happened to a nicer guy.

    Totally with you guys on the vaccines. The anti-vaxxers are the unreasonable ones in this case. When I was a kid, everyone just got them.

    Sarah, thanks for elaborating on the anti-trust stuff. I’d still appreciate more info, maybe an article for the Dispatch or a whole podcast. Or if you have some existing relevant resources, please point listeners in their direction. Still not sure I fully understand it. Thanks.

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  3. app

    I was baffled by David's comments regarding big tech. Plenty of conservatives do not like big tech because of the power it has. Sure, ideology plays a part but to say that it is the only reason (or even, for many, the primary reason) why conservatives are concerned is just wrong.

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  4. Mathew A

    A quick note on antitrust law.

    1. No every contract isn't a restrain of trade. Many of them are just I agree to sell you X at such and such a price (or margin over cost). A restraint of trade would be "but I won't sell X to anyone else"

    2. No the point of going into business isn't to monopolize trade for most people. It's to sell a product in a competitive marketplace.

    I know you lawyers are used to twisting language all around, but that's a bit excessive here :)

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  5. JoeW

    I am curious...a University can mandate students and staff get vaccinated, but can a student (Public K-12 or University) request/demand to be taught by a vaccinated teacher where that policy does not exist?

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    PaulH

    I don't think that Sarah and David did a very good job of explaining the statutory basis of the eviction moratorium. They are correct that the first sentence of section 361 (a) reads as if it is a broad grant of power, but the second sentence reads: "For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary."

    Most courts would read the second sentence as a limitation the first (otherwise it is superfluous) and also read the term "other measures" to mean other measures like the listed measures. That is how Kavanaugh finds a limit in the statute. It is also how he finds an eviction moratorium as exceeding that limit as a moratorium is not at all like the other measures listed.

    Other legal commentators (see the stuff at National Review) have looked at the issue in this way.

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      Bill Dyer (aka Beldar)

      I also wish they had noted more clearly that Congress effectively cured any objections to the moratorium as initiated by Trump by including (effectively ratifying) it in the first COVID relief bill. Congress renewed it. The reason this all went off the rails was because it was politically impossible for the Dems to get through yet another extension against a threatened Senate filibuster. All of which makes Biden's decision to try to continue the ban without Congressional authorization all the more reprehensible.

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  7. Brett C

    The Sherman Antitrust Act (a.k.a The Full Employment for Economists Act) is regularly maligned by economists behind closed doors because it absolutely is all made up. But they're also happy to play the sophist on both sides of any dispute - they're really good at supplying numbers in exchange for consulting fees... $5.7 million is good money.

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    An Actual Cat

    I share David's surprise at the use of the word "butt" in the NY AG's report and at her press conference. Not that it's vulgar, but it seems informal and... insensitive. I would have probably used the word "buttocks" in that situation.

    It reminds me of an old comedy sketch about a man who was in an accident and his buttocks were replaced with a baboon's. The doctor comes out of the operating room and tells his wife, "Sorry, we couldn't save your husband's ass."

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      Seth B

      I too was surprised, as I thought the legal term of art was "tushy".

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      BestUsedCarSales

      In Louisiana they are required to use "derrière" and the accent mark is required.

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  9. Mads Lindstrøm

    I am not a lawyer so I may be way off here. That being said, Cuomo's "I do it to men too" defense may hurt him in a civil suit, but would it not help in a criminal case in that it indicates he had no criminal intent?

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      Doug Herbert

      You're certainly not way off, even in a civil suit. Sarah simply dismissed the idea that "I do it to men too" with a curt "nope, that's not how it works." It actually is how it works, at least i federal civil suits alleging hostile work environment discrimination. Sexual harassment, at least at the federal level, just a variety of sex discrimination.

      The idea is that each person has a sexual preference toward one sex or another, so sexual harassment based on sexual attraction is by definition going to be directed disproportionately toward sex or the other. In the early days when sexual harassment was being discussed as a viable legal theory, there were discussions of how the perfectly bisexual supervisor, who harassed everyone equally, would not violate Title VII. (In today's world, the argument would have to be based on the perfectly non-binary supervisor.)

      That is a point that has tended to get lost over time and so Sarah is hardly alone in thinking that the perfectly bisexual supervisor would be violating Title VII. That might actually be the case in New York now, with its new sweeping revision of state-level sexual harassment law. I've read that law pretty carefully (spent an hour doing so this week for a client), but I haven't focused on that precise issue yet.

      But, put succinctly, yes, it certainly is not a frivolous argument that if Cuomo had touched both men and women equally, he would not be liable.

      See this interesting discussion of this issue in the 1996 University of Minnesota Law Review, which tries to make a distinction between "gender" and "sex" in rejecting the argument about the perfectly bisexual supervisor.

      https://core.ac.uk/download/pdf/217208179.pdf

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      1. Avatar photo
        Doug Herbert

        I can't believe how many words and letters I omitted here. We really need an edit function.

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    2. Brett C

      No. If a bank robber said he would rob any bank, that doesn't show lack of criminal intent.

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  10. Avatar photo
    Doug Herbert

    I hate to be blunt, but Sarah's argument that antitrust is "made up" without showing any sign that she understands the basics of antitrust law is like the high school junior who is having a tough time with chemistry and says, "You know, I think chemistry is all made up."

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      Dave T

      Well, go on then, point us toward a helpful explanation!

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      1. Avatar photo
        Doug Herbert

        Why? Sarah and David don't engage here and there are plenty of primers on antitrust out there.

        But I'll give just one example. For Sarah to mock the "rule of reason" as though it just means whatever the courts think is "reasonable" ignores decades of caselaw applying highly sophisticated economic reasoning. It's just silly and not worthy of what is generally a good podcast.

        With Lina Kahn on the FTC, there are going to be many important and interesting discussions about whether (as David rightly put it) mere "bigness" is sufficient to break up a company in the absence of evidence of an adverse effect on consumer prices. If Sarah doesn't want or isn't able to participate in those discussions, she should at least be quiet and let David handle that part of the podcast.

        The mockery of the whole topic is already tiresome.

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          Dave T

          I asked because I'm not a lawyer and don't know anything about antitrust law. Since you do, I thought maybe you could link a very nice introductory layman's explanation for us.

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            Doug Herbert

            Dave, I'm sorry, I didn't mean to sound snippy to you. In the shortest form I can do off the top of my head, there are two primary types of violations under section 1 of the Sherman Act -- per se violations and "rule of reason" violations.

            Per se violations include agreements among competitors to fix price or divide up markets. There are no defenses available to per se violations. Rule of reason violations are those that under a huge body of caselaw have been determined on balance to have anti-competitive effects. This is where Sarah focuses her criticism of antitrust law as being "made up." It's too complex an area to summarize here, but beginning in the 1970s the Supreme Court has developed detailed guidelines for a wide range of what is and is not permissible, generally applying economic principles of the "Chicago School" of economics and "law and economics."

            Section 2 of the Sherman Act bars "monopolization" and attempted monopolization. This generally requires a showing of monopoly power, which is fairly difficult to do, so successful suits under section 2 are much less common than successful suits under section 1.

            The Sherman Act is enforced by private lawsuits.

            The FTC (for which I briefly worked as a summer law clerk while in school) enforces the FTC Act and the Clayton Act. The FTC Act is the wild card, since it prohibits both "unfair methods of competition" and "unfair or deceptive acts or practices." If Sarah had been criticizing the "unfairness" provision of section 5 of the FTC Act, I would have been nodding along with her, as the meaning of that phrase has been absurdly elastic. For example, the "unfair" language was the basis for outlawing cigarette advertising on TV back in the 1970s. The Clayton Act gives the FTC power to review mergers and acquisitions for potentially anti-competitive effects.

            This article is a better (but much longer) summary of the antitrust laws.

            https://www.markhamlawfirm.com/law-articles/overview-of-antitrust-law/

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        2. Brett C

          You're wrong here. Sarah's quoting of the law and arguments given are the standard arguments given by experts in the field with the same position. Sarah may not be a practitioneer of antitrust law, but her opinion probably originates from antitrust law classes/professors from when she got her law degree from Harvard.

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            Doug Herbert

            Nope. And not worth debating unless you want to cite some actual experts in the field who take this position.

            Here's just one example of a Harvard law professor taking the subject quite seriously.

            https://scholar.harvard.edu/files/einer_elhauge/files/global_antitrust_chpt_1_2d_ed_final.pdf

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