READ THAT BACK: Malaria, a Harmonica, and a Pinball Wizard

As citizens of America’s oldest ally were waving their tricolours and celebrating the storming of the symbolic (but largely empty) Bastille prison and the beginning of the French Revolution (have any of you ever actually read the words to La Marseillaise? It’s stirring, but my goodness is it violent), those of us living in Washington and environs were melting, as the region’s temperatures climbed to rival those of the surface of the sun. But despite the 10,000 degree heat (okay, maybe not exactly the surface of the sun) we here at Bloomberg BNA have kept our eyes on the courts to keep you up to date. Thank goodness for air conditioning—probably the best thing ever to happen because of malaria.

Rowan on the (South Yadkin) River: The Fourth Circuit held last week (subscription required) that Rowan County, N.C.’s practice of (exclusively Christian) legislator-led prayer before county board meeting violates the establishment clause of the U.S. Constitution. But big wheel keep on turnin’: A similar case in the Sixth Circuit may yet come out the other way, setting up yet another blockbuster for the upcoming Supreme Court term. Proud Mary, keep on burnin’!

Paging Lisa Loeb: The Court Reporter can remember when “Stay” was ubiquitous, and to be entirely honest could probably sing the whole thing from memory, not that you’d want to hear it. But this kind of stay—when the Supreme Court steps in to halt the decision of a lower court while a different lower court reviews the decision—is far less common.

Inflate-Gate: Airbags are supposed to protect you in a car crash, and Takata’s have been doing…rather a poor job of it even when not on the road. So poor, in fact, that some are concerned that the $125 million set aside in the company’s bankruptcy to pay personal injury and wrongful death claims may not cut it (subscription required).

How Do I Get You a Loan?: In A Chipmunk Christmas, Alvin desperately needs money to buy a golden echo harmonica as a gift for the sick boy next door. In a fevered dream he finds himself at some weird bank/heaven hybrid thing (it has been a long time since the Court Reporter has seen this film) where Alvin informs the doorman (there’s a doorman) that he needs a loan. “Well of course you’re alone,” the doorman says, “there’s nobody with you!” Which is how you will be at parties when you talk about REPAYE, PAYE, IBR, ICR and all the other forms of income-based student loan repayment that may or may not keep individuals out of bankruptcy, and the increasing role that bankruptcy courts seem to be taking on in what could be a major U.S. economic crisis.

Hit Piece: A recent Washington state Supreme Court decision could have a big impact…wait, no…is on a collision course…ugh, no…dealt a blow to…OK, FORGET IT! The opinion is a significant development in the world of concussion litigation. As the Court Reporter told you last week, the state’s high court ruled that a high school football coach may be liable for a player’s death where the coach allegedly failed to comply with a state concussion protocol. The question is, where do we go from here? “I wouldn’t be surprised to see this issue arise in other states that may follow this decision,” one expert told Bloomberg BNA. “I think most courts would find it persuasive.” Some states may even consider legislation to insulate coaches from potential liability when they fail to follow concussion protocols.


  • Colorado Supreme Court Justice Allison Eid may be a shoo-in to replace Neil Gorsuch on the Tenth Circuit, if Senate Republicans have their way and get her to a vote. The change wouldn’t shift the court much ideologically—she appears to be just as conservative, and just as much a conservative darling, as he is. Eid is also the feast day celebrating the end of Ramadan! Now you know (if you didn’t already).
  • And speaking of Gorsuch, his conservative bona fides were never in much doubt, and he certainly lived up to that expectation in the last few weeks of the 2016 term. But is he so conservative he’s even annoying Chief Justice Roberts?
  • Attorney General Jeff Sessions spoke to the Alliance Defending Freedom—a Christian legal organization that has also been designated a hate group by the Southern Poverty Law Center—about forthcoming agency guidance on religious liberty. In an exclusive interview with Bloomberg BNA (subscription required), Michael Farris, president and general counsel of the ADF, discussed what the speech meant for his organization and addressed the backlash it caused.
  • Chief Judge Diane Wood of the 7th Circuit wags her finger (subscription required) at attorneys—including Jeff Sessions—who can’t seem to get the hang of required jurisdictional statements.
  • 95-year-old Carl Reiner, speaking for “all our fellow citizens,” tells Justice Kennedy that he’s never too old to be a Supreme Court Justice.
  • Is the Trump administration easing off enforcement of the law that prohibits American companies from bribing foreign governments…while also facing multiple lawsuits about accepting gifts and payments from foreign governments?
    • Dunkin’ Donuts is accused (subscription required) of not using real blueberries or maple syrup in their doughnuts (donuts)? Scandalous enough, if true, but especially so for a New England-based company. And Krispy Kreme accused of similar misdeeds? It may be time to switch to Lard Lad.

And Now…Something Truly Big: In The Who’s Tommy*, the Pinball Wizard’s wicked uncle Ernie takes a picture of Tommy’s “miraculous recovery” when he ceases to be deaf, dumb, and blind. He attempts to sell the picture to a reporter, telling him: “What you’ve stumbled upon here, my son, could be ginormous.” The First Circuit’s Judge O. Rogeriee Thompson bears very little in common with Tommy’s (truly wicked) uncle Ernie, but she did use the same portmanteau—ginormous—in her July 13 opinion in Eldridge v. Gordon Bros. Grp., LLC. According to Bloomberg BNA research (that is, the Court Reporter ran a keyword search), she is the only judge to have chosen the word for an opinion. (Magistrate Judge Charles S. Miller Jr. used the word in his 2012 opinion in Rümmer v. North Dakota, but he was quoting the allegations of the plaintiff.) Sensational!

* The Court Reporter is referring to the stage show, notwithstanding the links to the movie version. Some videos are just easier to come by.