2018-56
17-1705
PDR Network, LLC, et al., Petitioners v. Carlton & Harris Chiropractic, Inc.

Summary Analysis

R-56
DATE: 2019-06-20
DOCKET: 17-1705
NAME: PDR Network, LLC, et al., Petitioners v. Carlton & Harris Chiropractic, Inc.
WORTHY: True

OPINION: Court
   AUTHOR: Breyer
   JOINING: Roberts, Ginsburg, Sotomayor, Kagan
   GOOD: No
PAGES: 6

OPINION: Concurring
   AUTHOR: Thomas
   JOINING: Roberts, Gorsuch
   GOOD: Yes
PAGES: 3

OPINION: Concurring
   AUTHOR: Kavanaugh
   JOINING: Thomas, Alito, Gorsuch
   GOOD: Yes
PAGES: 19


Case Commentary

As I say continually, I am not a Lawyer, The Law (whatever that means) does not matter to me, and this series is more about Philosophy than anything else.

I open with that remark as I question the degree to which the underlying Legal Question can be Legislated meaningfully.



It is, apparently (but don't ask me, as I could not tell you for sure), Illegal to send Unsolicited Advertisements over the Fax. And on the surface, this looks pretty clear-cut. But it's only clear-cut if we are talking about Advertisements for Some Thing (it doesn't matter what thing that thing is exactly) and you aren't running a Business that deals (in some way) with that very Same Thing.



I worked (oh, yes, I did) for 25 years, selling stuff... or working as a Project Manager... which is another way of saying, I spent about half my time Managing Projects and the other half trying to find Projects to Manage... in which Faxes, Phone Calls, and Emails figured prominently. And teasing apart an Unsolicited Sales Call (Fax, or Email) from a Solicited Sales Call (Fax, or Email) is no mean feat.

'Yes, I want new business, just not from you.'

Or of this nature.
Or of this type.
Or at this moment in time.

In the end, the only one who can say whether a Sales Call (no matter the modality) is Unsolicited is the receiver of said Sales Call. And beyond that (which means, let's dig down a bit deeper and ask), who gets to decide when a Sales Call is a Sales Call in the first place? Or not just a request to make a Future Sales Call? Or an honest inquiry about the nature of one's Business?

'Your Honour, they tried to sell me on an opportunity to make money and/or otherwise engage in the business in which I am engaged.'

Eh, you may think I am being silly. But there is little difference between trying to Sell Your Labour and trying to Get Hired.

So, is a Job Applicant breaking the law when they Fax an Unsolicited Resume?



So, the law at hand is stupid... which unfortunately, differentiates it from most every other law out there not one iota.



A Chiropractor received a Fax from an advertiser about advertising.

I could be wrong.

The Chiropractor filed a Class Action Lawsuit claiming the Fax was Unsolicited Advertising.

A Lower Court disagreed, concluding the Fax was NOT Unsolicited Advertisement.

And the District Court reversed, because, after all, what is an Unsolicited Advertisement? Who gets to decide? And when? Though, they probably worded their decision better. And rather than approaching the question directly (as why do that), they started pulling apart various laws, which I could not give a crap about and which try to codify the When's, Where's, and Why's of Unsolicited Advertising.



The Court (as in, the Supreme Court) weenied out and sent the case back for further evaluation by the lower courts.

Whereas, Thomas' Concurring Opinion hits the nail on the head when he observes (or at least, this was my takeaway) that in order to apply The Law, one must first interpret The Law.



Wow!

I know!

Intense!



Another way at looking at this case (and I am sure there are additional ways beyond this, but I shall leave those for the reader to sleuth out on their own) is where and when a law may be Interpreted... and/or that Interpretation Challenged.

1. Congress Passes a Law
2. An Agency Interprets the Law
3. The Law Effects Someone

Given that there is a (most gracious) 60 Day Window to Challenge the Agency's Interpretation (and the Lawsuit in question takes place many years past this deadline), how is the Agency's Interpretation Validated?

• Can the Interpretation (itself) be Challenged?
• Can this Implementation of the Interpretation (i.e. this instance) be Challenged as not being in conformance with the Interpretation?

As far as I am concerned, we have Courts to decide this sort of thing. So, I would allow every type of Challenge at every step of the game... which is not to say, I believe any Challenge should succeed, just that is should not be shot down simply because it is a Challenge.

And I believe, this last is the essential gist of Kavanaugh's Concurring Opinion.



And from there, all we have left to do is handle a few final bits of bookkeeping.

• 60 Day Review is Facially Unfair
• Please see the opening chapters of The Hitchhiker's Guide to the Galaxy for further clarification and a wonderful parody of this sort of situation.
• We have no meaningful Code of Laws.
• Everything is a special case.
• There is no uniform code.
• And The Court (or at least, some members of it) are completely removed from reality.
• They believe everyone effected (which is everyone) by The Clean Water Act, CERCLA, and the Clean Air Act "have both the incentive and the capacity to challenge those rules immediately."
  • Nope, sorry.
  • They do not.
    • Or do you want to lift yourself up as the exception that proves the rule?
    • Perhaps more on point, there are people who were not even born when the those laws went into effect, so how they had an opportunity to do anything is beyond me.
• Finally, it would appear that Congress is able to pass a Law that is not subject to Judicial Review.
• Three Branches, anyone?