Mitchell Driskell

Published on September 22nd, 2021 | by Mitchell Driskell

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The Local Lawyer: “Barstool Briefs, Part 2A: Short Stories on Legal Affairs”

Ole Miss is 3-0 and The Grove is open. Life is good in Oxford these days. The Local Lawyer is back this issue with more Barstool Briefs for your information and enjoyment.

FTC Investigates McDonald’s Ice Cream Machines

McDonald’s ice cream machines are always hit or miss. There is even a website, www.mcbroken.com, that tracks broken McDonald’s ice cream machines. The government is looking to save us from this long national nightmare. According to a report in The Wall Street Journal, the Federal Trade Commission (FTC) contacted McDonald’s franchise owners over the summer looking for information about the broken ice-cream machines. The legal issue involved is “the right to repair.” Some manufactures of products require their products to be repaired at only certain places or by certain technicians. Apple and John Deere are two common examples of companies that prohibit product owners from self-repair or non-approved-repair. Recently, states have been passing “right to repair” laws that give customers the right to repair their products however they want, and those repairs will not violate usage rules or warranty coverage.

Back to McDonalds, the notoriously bad ice cream machines are made by The Taylor Company. The FTC is investigating allegations that when these Taylor Company machines break down only a Taylor Company technician can fix it. Even if the manager on duty at your nearby McDonald’s knows how to fix a broken machine or knows a local repairman who does, that machine sits broken until a Taylor Company repairman shows up, does his thing, and McFlurries are available again. 

The FTC is investigating whether or not local McDonald’s owners have the right to repair the ice cream machines without waiting on a Taylor Company technician, and I for one think this might be the best use of Federal resources I have heard of in a long, long time. The FTC is also looking broadly at manufacturers who have been blocking owners from fixing broken products themselves and whether those policies are legal. Legally, I’d be lying if I claimed to be a “right to repair” expert, and the Courts will eventually sort it out, but if the right to repair means that McDonald’s ice cream machines will work on a regular basis, I am all for it.

Texas Abortion Law Update

By now you have heard about the Texas abortion law that gives people the right to sue other people who have performed or aided and abetted in an abortion after about six weeks, much, much earlier than Roe v. Wade protects.  The Justice Department on Tuesday of this week asked a federal judge to grant a “temporary restraining order,” preventing Texas from enforcing its six-week abortion ban. If this request is granted, the law will be put on hold until Courts decide its constitutionality.

Meanwhile, President Biden announced plans to launch a “whole-of-government effort” in response to the Supreme Court’s denial of an emergency request to block the Texas law from taking effect, directing all departments to work against enforcement of the Texas law. The Supreme Court declined to decide if the law was constitutional earlier this month in a 5-4 decision with the five-Justice Majority saying that we do not sit around evaluating State-laws that get passed before a legal challenge of that law works its way to our Court. The four-Justice Minority said that the Court shouldn’t wait for a lawsuit challenging the law to work its way through the system because the law is so obviously unconstitutional under Roe v. Wade.

The four-Justice decision to throw centuries of Supreme Court practice out the window to strike down the law leads me to conclude that Roe is safe. These four justices have pre-decided the case, laid their cards on the table, and we know they will uphold Roe and strike down the Texas law. It will only take one of the five other Justices to join them when the law eventually finds its way to the Court in a legal challenge. I think we are much more likely to see one of those five Justices uphold the long-standing precedent of Roe v. Wade than all five of them deciding to overturn Roe.

Biden’s Vaccine Mandate

Biden plans to use employment law, specifically OSHA regulations, to require employers to require employees to be vaccinated. OSHA can authorize an emergency standard if it determines workers are in “grave danger,” and a standard can only be challenged in a US court of appeals. Many governors, including Mississippi’s governor, have promised to sue to block an OSHA “emergency standard” that requires employees to be vaccinated to come to work. This creates a classic constitutional issue—the right of the government to pass well-intended safety regulation and the personal right to be free and work. Practically, OSHA does not have nearly enough staff to inspect the vast majority of workplaces for compliance with the vaccination mandate and compliance will be largely voluntary.

Mitchell Driskell has been an Oxford lawyer for twenty-one years.  He practices criminal law, family law, business transactions and civil litigation. Email him mdriskell@danielcoker.com.  Follow him on Instagram @mdriskell, twitter @MODIIItweets, TikTok @DriskellLaw and on Facebook.

The Local Lawyer: Barstool Briefs, Part 2B: Short Stories on Legal Affairs
The Local Lawyer: "Barstool Briefs - Short Stories on Legal Affairs"

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