Category Archives: Court Opinions

Kerr: How to Read a Legal Opinion: A Guide for New Law Students

Orin Kerr’s How to Read a Legal Opinion: A Guide for New Law Students, 11 The Green Bag 2d 51 (2007) celebrates the 10th anniversay of its publication in The Green Bag. It should be required reading during the first week of 1Ls’ law school careers. — Joe

Elected official cannot block constituents from ‘official’ Facebook page

At the US District Court for the Eastern District of Virginia, the court ruled that a politician who reacted to a constituent’s comment on her “official” Facebook post by deleting his comment and banning him from her Facebook page violated the First Amendment. Davidson v. Loudoun County Board of Supervisors, 1:16-cv-JCC-IDD (July 25, 2017). On Constitutional Law Prof Blog, CUNY Professor of Law & University Distinguished Professor Ruthann Robson writes “This case should serve as a wake-up call for politicians who use their ‘official’ Facebook pages in ways that may violate the First Amendment.  The case may also be a harbinger of decisions to come in the ongoing litigation challenging the President’s practice of “blocking” people on Twitter.” — Joe

Pubishers win antitrust appeal against small vendor

Here’s a little postscript to the Apple e-book antitrust case.  A failed e-book retailer BooksOnBoard (BOB) sued the publishers in 2014 for antitrust violations, essentially blaming conduct by the five Apple defendant publishers for its failure.  BOB purchased e-book inventory from a third-party wholesaler and sold books at a discount via its web site.

BOB claimed that the agency model pricing scheme destroyed its ability to compete in the e-book market, among other injuries.  The publishers presented evidence contradicting BOB’s claims.  The move to agency model pricing actually increased revenues for BOB.  The District Court opinion also mentioned factors such as the inability to link product to dedicated e-readers such as the Kindle or Nook and questionable management practices.

The District Court opinion from 2016 is available here.   The Second Circuit Court of Appeals opinion which largely adopted the District Court’s reasoning is here.

—Mark

What books did SCOTUS justices cite last term?

In Foreword: The Books of Justices, 115 Mich. L. Rev. 733 (2017), Linda Greehouse reports on the results of her study of SCOTUS justices’ practice of citing “books” during the 2015-16 Supreme Court term: “For this Michigan Law Review issue devoted to recently published books about law, I thought it would be interesting to see what books made an appearance in the past year’s work of the Supreme Court. I catalogued every citation to every book in those forty opinions in order to see what patterns emerged: what books the justices cited, which justices cited which books, and what use they made of the citations.”

Here is a capsule view of her findings:

Categories of Books Cited

Treatises and practice manuals 51 times cited
Primary sources, historical 27 times
History and political science 17 times
Law 16 times
Dictionaries 7 times
Restatements 6 times
Literature 5 times
Primary sources, modern 3 times cited

— Joe

Perhaps not as easy as first thought: Court blocks part of Trump’s sanctuary cities executive order

A federal judge on Tuesday blocked enforcement of part of President Donald Trump’s executive order to deny federal funding to sanctuary cities that refuse to help the government detain and deport immigrants. The court issued a nationwide injunction to block enforcement of Section 9(a) of E.O. 13768, Enhancing Public Safety in the Interior of the United States, 82 Fed. Reg. 8799 (Jan. 30, 2017), the provision that would allow the federal government to withhold funding from sanctuary jurisdictions. Text of Decision. For an analysis, see Steven D. Schwinn’s Constitutional Law Prof Blog post.

Prior to the court ruling, the administration’s latest effort to clamp down on sanctuary jurisdictions came on April 21st when the DOJ sent letters to nine jurisdictions demanding proof of compliance with 8 USC 1373. According to the DOJ press release:

The letters remind the recipient jurisdictions that, as a condition for receiving certain financial year 2016 funding from the Department of Justice, each of these jurisdictions agreed to provide documentation and an opinion from legal counsel validating that they are in compliance with Section 1373. The Department of Justice expects each of these jurisdictions to comply with this grant condition and to submit all documentation to the Office of Justice Programs by June 30, 2017, the deadline imposed by the grant agreement.

The piecemeal implementation of Trump’s executive order, should it ever be enforceable, is the topic of Sanctuary Jurisdictions and Select Federal Grant Funding Issues: In Brief (March 16, 2017, R44789). This report discusses questions that might be raised regarding the implementation of Trump’s EO 13768 by federal grant-making agencies on the impact of federal grant funding for designated sanctuary jurisdictions. The CRS report observes

Because of the complexity of implementing a centralized policy such as the EO through the decentralized structure of federal grants administration practices, there is uncertainty in determining the impact of the EO on federal grant funding for sanctuary jurisdictions. The impact could be affected by the discretion exercised by the Attorney General and the Secretary [of Homeland Security] in defining a “federal grant,” determining which programs are exempted because of providing necessary funding for law enforcement purposes, and determining what constitutes a “sanctuary jurisdiction.” The impact of the EO on federal grant funding could also be affected by how federal grant awarding agencies utilize discretion in administering the grant programs, including review of eligibility and conditioning federal grant awards.

End Note. See also this CRS report, Executive Orders: Issuance, Modification, and Revocation (April 16, 2014, RS20846) which discusses executive orders with a focus on the scope of presidential authority to execute such instruments, as well as judicial and congressional responses to their issuance, and  this LLB post for links to additional CRS reports on sanctuary jurisdictions. For additional background, see Darla Cameron’s How sanctuary cities work, and how Trump’s executive order might affect them (Washington Post, Jan. 25, 2017). — Joe

Free Law Project plans to harvest all free opinions and orders from PACER

From the announcement:

[W]e are launching a new project to download all of the free opinions and orders that are available on PACER. Since we do not want to unduly impact PACER, we are doing this process slowly, giving it several weeks or months to complete, and slowing down if any PACER administrators get in touch with issues. … In this project, we expect to download millions of PDFs, all of which we will add to both the RECAP Archive that we host, and to the Internet Archive, which will serve as a publicly available backup.1 In the RECAP Archive, we will be immediately parsing the contents of all the PDFs as we download them. Once that is complete we will extract the content of scanned documents, as we have done for the rest of the collection.

H/T to Gary Price’s InfoDocket report. — Joe

Round one in the Official Code of Georgia Annotated lawsuit: “The Copyright Act itself specifically lists ‘annotations’ in the works entitled to copyright protection.”

Last week, US District Court Judge Richard Story issued a ruling in favor of the Georgia Code Revision Commission to preserve the State of Georgia’s claimed copyright of the Official Code of Georgia Annotated (OCGA). Here’s the text: Code Revision Commission et al v. Public.Resource.Org, Inc. The case turned on Lexis-supplied annotations to an official state code that in this rare instance happens to be annotated; most, if not all, other official state codes are unannotated. As value-added material, the annotations entitled the work to copyright protection according to the district court. Wait ‘n see.

At the URL for Public Resources’ OCGA archive, Carl Malamud posted the following message:

Dear Fellow Citizen:

You have been denied permission to access this document at this time due to ongoing judicial proceedings in the following case: Code Revision Commission et al v. Public.Resource.Org, Inc. (Case 1:15-cv-02594-MHC, U.S. District Court for the Northern District of Georgia)

Your access to this document, which is a law of the United States of America, has been temporarily disabled while we fight for your right to read and speak the laws by which we choose to govern ourselves as a democratic society.

To apply for a license to read this law, please consult the Code of Federal Regulations or applicable state laws and regulations for the name and address of a vendor. For more information on edicts of government and your rights as a citizen under the rule of law, please read my testimony before the United States Congress. You may find more information on our activities at Public Resource on our registry of 2015 activities.

Thank you for your interest in reading the law. An informed citizenry is a fundamental requirement for our democracy to work. I appreciate your efforts and apologize for any inconvenience.

Sincerely yours,

Carl Malamud
Public.Resource.Org
March 23, 2017

For an excellent article covering this development, see Joe Mullin’s If you publish Georgia’s state laws, you’ll get sued for copyright and lose: In some states, you can’t read the law without paying a corporation (ars technica, March 30, 2017)– Joe

Docket-based research needed to find “submerged precedent”

“[S]ubmerged precedent pushes docketology in an uncharted direction by identifying a mass of reasoned opinions—putative precedent and not mere evidence of decision-making—that exist only on dockets,” writes Elizabeth McCuskey (Toledo) in Submerged Precedent, 16 Nevada Law Journal ___ 2016 (forthcoming)[SSRN]. Professor McCuskey adds “[s]ubmerged precedent thus raises the specter that docket-based research may be necessary in some areas to ascertain an accurate picture of the law itself, not just trial courts’ administration of it.” Here the abstract for this very interesting article:

This article scrutinizes the intensely individual, yet powerfully public nature of precedent, inquiring which decisions are made available for posterity in the body of precedent and which remain solely with their authors and the instant parties. At its broadest level, this article investigates the intricate relationships among precedent, access, and technology in the federal district courts, examining how technology can operationalize precedent doctrine.

Theory and empiricism inform these inquiries. Drawing from a sample of district court decisions on Grable federal question jurisdiction, the study presented here identifies and explores the phenomenon of “submerged precedent” – reasoned opinions hidden on court dockets, and not included in the Westlaw or Lexis databases. The study detailed here found that submergence may obscure as much as 30% of reasoned law on Grable federal questions from the view of conventional research.

This article investigates the structural and institutional forces behind submergence, as well as its doctrinal implications. By effectively insulating some reasoned opinions from future use by judges and practitioners, the phenomenon of submerged precedent threatens to skew substantive law and erode the precedential system’s animating principles of fairness, efficiency, and legitimacy. Most urgently, the existence of submerged precedent suggests that Congress’s mandate for public access to federal precedents in the E-Government Act of 2002 lies unfulfilled in important respects. The application of precedent theory informed by empirical observation suggests a more thoughtful approach to technology and public access to precedent.

— Joe

UELMA adoption does not correlate to barrier free access says Glassmeyer report

Sarah Glassmeyer has released the results of a survey of state primary law. State Legal Information Census (PDF). Here’s the abstract:

This report presents findings from a survey of state level primary legal information.   Primary legal information includes code (codified statutes passed by state legislatures), regulations (codified collections of rules passed by administrative agencies) and case law (appellate court decisions).  This survey was done with the goal of reviewing the free and open status of this legal information.

Findings indicate that there exists at least 14 barriers to accessing legal information.  These barriers exist for both the individual user of a resource for personal research as well as a institutional user that would seek to republish or transform the information.   At the time of the census, no state provided barrier-free access to their legal information.

Furthermore, analysis of the legal information provided by states shows that it is impossible to do any but the most basic of legal research for free using state provided legal information sources.  Current collections allow for citation retrieval and some basic keyword searching.  No state allows for federated searching of legal information collections.   The universal lack of a citator for case law renders these collections, as a practical matter, useless and would be considered malpractice for a legal practitioner to rely upon.   There is also a worrisome lack of archival material maintained by states.  Not only does this affect one’s ability to do comprehensive research, but it also could be indicative of a lack of adequate preservation.

States were scored and ranked based on the openess of their legal publication practices.  On a scale of 0 – 24, the highest score achieved was 18.  The lowest was 8 and the median was 14.  These results were compared against the adoption of the Uniform Electronic Legal Information Act (UELMA) and it was found that adoption of UELMA did not correlate to barrier free publication practices.

— Joe

Nebraska Courts To Drop Printed Opinions

From the Press Release:

Free online access to the official published judicial opinions of the Nebraska Supreme Court and Nebraska Court of Appeals will be available to the public beginning January 1, 2016.

Text-searchable opinions dating back to 1871 will be available for the Nebraska Supreme Court. The full collection of opinions of the Nebraska Court of Appeals, beginning with its establishment in 1992, will also be offered.

Previously, appellate court opinions were printed or were available online through various for-profit subscription services. All published opinions will be provided via the Nebraska Appellate Courts Online Library at ne.gov/go/opinions. Once printing of judicial opinions in the Nebraska Advance Sheets and the Decisions of the Nebraska Court of Appeals ceases in June 2016, opinions will be available exclusively online.

Newly released opinions of both courts will continue to be available for 90 days on the Nebraska Judicial Branch Web site athttps://supremecourt.nebraska.gov/ and from the Clerk of the Supreme Court and Court of Appeals upon request, and from any electronic provider of legal information choosing to provide them.

Official opinions in the online library will be accessible 24/7 using smart phones, tablets or computers from anywhere with Internet access. Access via the online library allows the appellate courts to make their judicial opinions more easily available to the public.

Nebraska joins Arkansas and Illinois in dropping printed opinions in favor of online access.  Hat Tip to Rich Leiter for the news.

Mark

Supreme Court Action: Habeas Corpus and Apply the Federal Arbitration Act to State Proceedings

The Supreme Court issued two opinions this morning.  The first is a habeas corpus case where the underlying issue is where a juror was struck for cause due to ambiguous statements made about applying the death penalty during the voir dire.  That case is White v. Wheeler (14-1372).  Wheeler was convicted of two murders and sentenced to death in Kentucky.  One juror, identified as Juror 638, responded to questions about his ability to impose the death as a sentencing option with answers that went back and forth.  The opinion describes these statements:

In response to the judge’s questions about his personal beliefs on the death penalty, Juror 638 said, “I’m not sure that I have formed an opinion one way or the other. I believe there are arguments on both sides of the—of it.” App. to Pet. for Cert. 126a. When asked by the prosecution about his ability to consider all available penalties, Juror 638 noted he had “never been confronted with that situation in a, in a real-life sense of having to make that kind of determination.” Id., at 131a. “So it’s difficult for me,” he explained, “to judge how I would I guess act, uh.” Ibid. The prosecution sought to clarify Juror 638’s answer, asking if the juror meant he was “not absolutely certain whether [he] could realistically consider” the death penalty. Id., at 132a. Juror 638 replied, “I think that would be the most accurate way I could answer your question.” Ibid. During defense counsel’s examination, Juror 638 described himself as “a bit more contemplative on the issue of taking a life and, uh, whether or not we have the right to take that life.” Id., at 133a. Later, however, he expressed his belief that he could consider all the penalty options. Id., at 134a.

The judge considered the prosecution’s motion to strike and, after reviewing the juror’s statements, granted the motion.  The Kentucky Supreme Court upheld Wheeler’s conviction and sentence on direct appeal.  Wheeler filed a habeas corpus petition in federal court.  The District Court dismissed but the Sixth Circuit reversed and granted the petition.

The Supreme Court reversed.  It emphasized the deferential approach to state courts required under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) unless the decision was contrary to federal law as decided by the Supreme Court.  The Court reviewed its precedents and concluded that under the deference requirement the Sixth Circuit erred in granting the petition.  The Court issued the opinion per curiam.  There were no dissents.

The second case involved the application of the Federal Arbitration Act (FAA) as controlling over state law.  Readers may remember that the Court enforced an arbitration clause in AT&T Mobility LLC v. Concepcion, 563 U. S. 333, awhile back.  That case came out of federal court where the Ninth Circuit enforced precedent (the Discover Bank case) that made waivers of class action suits unenforceable. The Court instead said the FAA preempted state law to the contrary and enforced the arbitration clause.

The present case, DIRECTV, INC. v.  Imburgia (14-462), concerns a variation of the Concepcion holding.  DIRECTV was sued in state court by individuals believing early termination fees violated California law.  The arbitration clause included in DIRECTV contracts limited dispute resolution to arbitration with a provision that waived class arbitration.  There was another provision stating that if “law of your state” makes the class arbitration waiver unenforceable then the entire arbitration clause was void.  The California trial court denied a request to send the matter to binding arbitration.  The California Court of Appeals agreed citing Discover Bank.

The Supreme Court essentially ruled that “law of your state” did not include state law that was invalid under federal law.  The Court cited multiple reasons for this conclusion, reasoning that in other circumstances courts would not rely on invalid state law in making decisions.   The “law” in this case includes the ruling in Concepcion which nullified the application of Discover Bank.  The Court made it pretty clear that there was no way of getting around the Concepcion ruling.  Justice Breyer delivered the opinion of the Court and was joined by Chief Justice Roberts and Justices Scalia, Kennedy, Alito, and Kagan.  Justice Thomas filed a dissenting opinion.  Justice Ginsburg filed a dissenting opinion and was joined by Justice Sotomayor.  Justice Thomas believes that the FAA does not apply to proceedings in state court.  Justice Ginsburg would read the entire contract as benefitting the consumer rather than corporate drafters.  He expresses similar views as to Justice Thomas but with a little more depth.

Mark

Supreme Court Action: Convening Three-Judge Panels in Gerrymandering Cases

The Supreme Court issued one opinion this morning.  The case is Shapiro v. McManus (14-990).  Petitioners in this case challenged the constitutionality of Maryland’s congressional apportionment map under First Amendment/Freedom of Associations grounds.  They gave the District Judge a petition to convene a three-judge court to hear the matter.  28 U.S.C. §2284(a) states that when this type of lawsuit is filed and the judge is presented with a petition a three-judge court to hear the matter, the judge shall notify the chief judge of the Circuit who shall designate two other judges to serve on the panel.

The statute contains one qualification: “unless he determines that three judges are not required.”  The District Judge in this case decided that three judges were not required as he did not believe any relief was available to the petitioners in that they were free to join with others to express a political opinion.  Rather than notifying the Chief Judge, he dismissed the case.  The Fourth Circuit affirmed in an unpublished opinion.

The Supreme Court reversed.  The Court stated that the statute is written in mandatory terms.  The only discretion the Judge has when presented with a petition for a three-judge panel is analyzing whether the parties properly belong in federal court, not whether the plaintiff’s case has any merit.  The petitioner’s claims clears the bar for jurisdiction.  The petitioner’s claims may or may not have merit, but they are entitled to a hearing before a three-judge court under the statute.  Justice Scalia delivered the opinion for a unanimous Court.

Mark

Supreme Court Action: Suits Against Foreign Entities and the FSIA

The Supreme Court issued one opinion this morning.  The case is OBB Personenverkehr v. Sachs (13-1067).   The case involves a gruesome and unfortunate accident that befell Sachs as she attempted to board a train in Innsbruck, Austria. She fell on the tracks and before she could recover a moving train crushed her legs necessitating the amputation of both above the knee.  The train was operated by OBB which the parties agree is an instrumentality of Austria.  Sachs sued OBB in the Northern District of California for her injuries and alleged that jurisdiction was proper under the commercial activities exception of the Foreign Sovereign Immunities Act.  One month before her accident she purchased a Eurail pass via the Internet from The Rail Pass Experts, a Massachusetts-based travel agent.  This was the only activity related to OBB that took place in the United States.

Sachs made five claims:

Sachs sued OBB in the United States District Court for the Northern District of California, asserting five causes of action: (1) negligence; (2) strict liability for design defects in the train and platform; (3) strict liability for failure to warn of those design defects; (4) breach of an implied warranty of merchantability for providing a train and platform unsafe for their intended uses; and (5) breach of an implied warranty of fitness for providing a train and platform unfit for their intended uses.

The District Court dismissed the case stating that her claims did not fall within the commercial exception located at 28 U.S.C. §1605(a)(2).  A divided panel of the Ninth Circuit affirmed.  A rehearing en banc reversed the divided panel and said the sale of the ticket fell within the exception.  The Supreme Court reversed concluding that the sale of the ticket in the United States was too remote from the elements of Sachs’ claims to fall within the exception.

The Court’s analysis turned on whether the commercial activity was directly related to injuries she claimed in her complaint.  The Court said there was nothing wrongful about the sale of the ticket that could be the basis of a suit that survives the FSIA.  Otherwise, the Court stated, many more suits could be filed against sovereigns using creative pleading.  The Court rejected other arguments as well as they were raised for the first time in the Supreme Court hearing.  Chief Justice Roberts delivered the opinion for a unanimous Court.

Mark

Supreme Court Action: Qualified Immunity When Deadly Force is Used By Officers During A Car Chase

The Supreme Court issued one opinion today.  The case, Mullenix v. Luna (14-1143), decided whether a Texas state trooper (Mullenix) was entitled to qualified immunity when he fired shots at a suspect’s car during a high speed chase, killing the suspect.  The Court’s restatement of the facts show that Israel Leija, Jr. resisted an attempt to arrest him and fled in his car.  Another officer, Sergeant Randy Baker, pursued Leija in a chase reaching speeds between 85 and 110 miles per hour.  Other officers joined the pursuit.  Leija called local police dispatchers twice and informed them that he was armed and would shoot officers if the chase was not called off.  This information was relayed to the pursuing officers along with information that Leija may be intoxicated.

Some officers set up road spikes at a location Leija was expected to pass.  Mullenix intended to set up spikes as well but decided he might disable the car by shooting at it.  He radioed his decision to his supervisor, Sergeant Byrd, who said to stand by and see if the spikes worked first.  Mullenix was joined by  Officer Shipman and they discussed Mullenix’ plan to shoot at the car.  Leija approached and Mullenix fired six shots.  Leija’s car hit the spikes and rolled over two and a half times.  Four of six shots Mullenix fired hit Leija in the upper body and killed him.  There was no evidence that any of the bullets hit any portion of the car that could have disabled it.

Leija’s family sued Mullenix on civil rights violations, specifically that Leija’s Fourth Amendment rights had been violated.  Mullenix filed a motion for summary judgment based on qualified immunity.  The district court denied the motion and the Fifth Circuit Court of Appeals affirmed the denial.  The Fifth Circuit withdrew its first opinion but substantially upheld the denial in a second opinion.

The Supreme Court reversed.  It stated the standard for applying qualified immunity is whether the conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  The Court explained that lower courts should not apply the standard in a general sense and that the application is fact dependent.  The Court noted there were only two prior cases where it ruled on excessive/deadly force involving car chases.  In those two:

The Court has thus never found the use of deadly force in connection with a dangerous car chase to violate the Fourth Amendment, let alone to be a basis for denying qualified immunity.

Further, lower court cases decided subsequently have not established that the use of force in situations similar to the present case is inappropriate.  The mere fact that other courts have found the level of force appropriate in more extreme cases does not render the use inappropriate here.

The Court issued the case as a per curiam opinion.  Justice Scalia concurred in the judgment.  Justice Sotomayor dissented.

Mark

 

“Free The Law:” Ravel and Harvard Law Team Up To Do Just That

There is so much to catch up on.  The recent news is that Ravel Law is teaming up with Harvard to scan significant portions of the primary law collection with the ultimate goal of placing the bulk online for use by the public.  The story in the New York Times mentions the fact that the librarians are cutting the books apart so the pages could go through high speed scanners.  The implication here is that there is no turning back for the project. Here is another story from the Harvard Law School News.

The interesting part for me aside from having as much primary law on the web is that this is the first major scanning project announced since the Google Book decision from October 16th.  Most primary law is in the public domain so there shouldn’t be any question about the legality of scanning.  Nonetheless, that decision should comfort the project managers.  I wonder if the decision will be giving impetus to any other large scale digitizing projects.

Mark

It’s Only A Friday Fun If You Like The Result: Google Wins Again at Second Circuit Over The Book Scanning Project

The Second Circuit handed Google another victory in its battle with the Authors Guild, et al., by upholding the District Court’s determination that its book scanning project is fair use.  Here is the Court’s own summary of the decision from the end of the opinion:

In sum, we conclude that: (1) Google’s unauthorized digitizing of copyright-protected works, creation of a search functionality, and display of snippets from those works are non-infringing fair uses. The purpose of the copying is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals. Google’s commercial nature and profit motivation do not justify denial of fair use. (2) Google’s provision of digitized copies to the libraries that supplied the books, on the understanding that the libraries will use the copies in a manner consistent with the copyright law, also does not constitute infringement. Nor, on this record, is Google a contributory infringer.

The Court relied on its decision in the HathiTrust case for declaring that Google’s scans were transformative.  The Court here noted that the libraries did not offer snippet view in local search in comparison to Google.  That wasn’t a problem, however, as Google’s snippets were no substitute for a copy of the book.  At best a research could determine whether the book would be useful in a research project.  That would not be a lost sale necessarily if the researcher rejected using the book in a personal project.

I’m still digesting the opinion and may have more to say about this later.  I’ll refer readers to c copy of the opinion on Google Drive as supplied by the Chronicle of Higher Education.  I’ll also point to a copy linked in a statement of disappointment in the ruling by the Authors Guild.  Note, however, that the Guild links ultimately to copy placed on Google Drive as well (oh the irony).  I would also draw your attention to the fact that the link from the Chronicle allows the reader to download the document.  The version from the Guild does not offer that option.  I’m guessing the Guild is hard-wired in that regard.

Mark

Google Fights France On The Right To Be Forgotten — Worldwide

Google was ordered by the Court of Justice for the European Union to delist individuals from search results under a “right to be forgotten.”  Other search engines had to comply with the order as well.  Certainly in the digital world information can be copied and stored anywhere.  Even deleted pages can be resurrected by viewing a cached copy when available.  The Wayback Machine at the Internet Archive allows one to search 456 billion preserved web pages over time.  Many websites, not unlike this one, may repost a document or other information thus populating a web of hits and misses.  I’m always surprised at what I find when I Google myself no matter how hard I hide from social media.

Google has reported that it has processed a quarter of a million requests to be forgotten comprising links to one million pages.  So far, so good.  France’s data regulators have ordered Google to delete links on a worldwide basis rather than limiting them to Europe.  Google’s response was “non.”  The company states that doing this would encourage other governments from enforcing similar “rights” which can be manipulated into censorship.  I can understand that.  Hostile elements in and out of government can use this kind of mechanism to marginalize opposition by limiting its web presence.

This is going to becomes a bit of a mess as it will likely lead to more litigation in Europe.  I suspect Google may have to rethink some of its business practices there if it ultimately loses on a European court order that is essentially extra-territorial.  In that case, Europe essentially sets a world-wide standard which, I think, is a dangerous precedent.  Imagine a U.S. State, we’ll call it Texas, deciding what could and could not be taught about evolution in schools nationwide.  We’ll all have to see how this one turns out.

More information comes from a post in Google’s Europe Blog.

Mark

Apple Loses Appeal In Ebook Case

The Second Circuit Court of Appeals rejected Apple’s arguments on appeal and upheld Judge Denise Cote’s finding that Apple violated the antitrust laws:

Defendants Apple, Macmillan, and Simon & Schuster appeal from a judgment of the United States District Court for the Southern District of New York (Cote, J.), entered on September 5, 2013. After a bench trial, the district court concluded that Apple violated § 1 of the Sherman Antitrust Act, 15 U.S.C. § 1 et seq., by orchestrating a conspiracy among five major publishing companies to raise the retail prices of digital books, known as “ebooks.” The court then issued an injunctive order, which, inter alia, prevents Apple from signing agreements with those five publishers that restrict its ability to set, alter, or reduce the price of ebooks, and requires Apple to apply the same terms and conditions to ebook applications sold on its devices as it does to other applications. We conclude that  the district court correctly decided that Apple orchestrated a conspiracy among the publishers to raise ebook prices, that the conspiracy unreasonably restrained trade in violation of § 1 of the Sherman Act, and that the injunction is properly calibrated to protect the public from future anticompetitive harms. In addition, we reject the argument that the portion of the injunctive order preventing Apple from agreeing to restrict its pricing authority modifies Macmillan and Simon & Schuster’s consent decrees or should be judicially estopped. Accordingly, the judgment of the district court is AFFIRMED.

The main opinion was accompanied by an opinion concurring in part and dissenting in part, and a dissenting opinion.  Here are the opinions:

US v Apple Opinion US v Apple C&D In Part US v Apple D Opinion

Mark

Supreme Court Action: Patents, Fourth Amendment, Excessive Force Claims, and the Takings Clause

The Supreme Court issued four opinions this morning.  I’m guessing the same-sex marriage case and the Obamacare case will be decided on June 29th, which appears to be the last day of the term.  Today’s cases, while not having the social impact, are interesting nonetheless.

The first case is Kimble v. Marvel Entertainment LLC (13-720).  Kimble entered into a contract with Marvel (the pre-Disney owned Marvel) where Marvel would buy Kimble’s patent on a Spiderman for a lump sum and a 3% royalty on each toy sold.  Sometime near the end of the 20-year patent term Marvel’s spidey sense began to tingle and the company discovered the case of Brulotte v. Thys Co., 379 U.S. 29 (1964 ).  That case held that a patent holder could not charge royalties once the patent had expired.  Marvel sued for and won a declaratory judgment that royalty payments would cease once the patent expired.  The Ninth Circuit affirmed.

The Supreme Court upheld Brulotte and affirmed the lower court decisions on the basis of stare decisis.  The Court said that relief from the rule rests with Congress and not the Court.  It also suggested that the royalty contract could be structured in other ways to spread the payments beyond the expiration of the patent.  Justice Kagan delivered the opinion of the Court and was joined by Justices Scalia, Kennedy, Ginsburg, Breyer, and Sotomayor.  Justice Alito filed a dissenting opinion and was joined by Chief Justice Roberts and Justice Thomas.  The dissent argued that the Court made up the Brulotte rule when the case was decided (wrongly, in its view) and could just as easily get rid of it as there is nothing in the patent laws that direct that result.

The second case is Los Angeles v. Patel (13-1175).  The City of Los Angeles has an ordinance that requires hotel operators to record specific detailed information about their guests.  The ordinance also requires that the records “shall be made available to any officer of the Los Angeles Police Department for inspection,” provided that “[w]henever possible, the inspection shall be conducted at a time and in a manner that minimizes any interference with the operation of the business.”  A group of motel owners sued on the basis that the statute was facially unconstitutional under the Fourth Amendment as it afforded no opportunity to challenge the inspection beforehand.  The District Court held for the City ruling that the owners had no privacy interest in the records.  The Ninth Circuit affirmed but then reversed en banc.

The Court held that a facial challenge to the ordinance can be made.  Even though the “search” in this case is administrative, it is still unconstitutional as it does not allow pre-compliance review before a neutral party.  Justice Sotomayor delivered the opinion of the Court and was joined by Justices Kennedy, Ginsburg, Breyer, and Kagan.  Justice Scalia filed a dissenting opinion and was joined by Chief Justice Roberts, and Justice Thomas.  Justice Alito filed a dissenting opinion and was joined by Justice Thomas.  The dissents argue essentially that the challenge should fail as the Court decides whether the application of a law is unconstitutional rather than the text of the law in and of itself.

The third case is Kingsley v. Hendrickson (13-6368).  Kingsley was a prisoner awaiting trial when he became uncooperative in his cell.  On one occasion he refused an order to leave his cell and was forcibly removed.  He was handcuffed and stunned with a Taser.  He also alleged officers slammed his head into a concrete bunk.  He filed a §1983 suit.  The trial court issued jury instructions calling for a subjective standard to decide liability.  The jury found for the officers.  The Seventh Circuit affirmed in a divided panel.

The Supreme Court reversed holding that the correct standard was an objective unreasonableness standard in deciding an excessive force claim.  The Court stated that it was consistent with precedent, it is the standard in the pattern jury instructions, officers are trained to a standard, and based on circumstances, the officers may be justified in their actions and given some form of immunity.  Justice Breyer delivered the opinion of the Court and was joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan.  Justice Scalia filed a dissenting opinion and was joined by Chief Justice Roberts, and Justice Thomas.  Justice Alito filed a separate dissent. Justice Scalia argues that “any intentional application of force that is objectively unreasonable in degree is a use of excessive force that “amount[s] to punishment.””  Justice Alito would dismiss the appeal as other questions need to be answered in the case first.

The fourth case has been to the Court before on procedural issues over jurisdiction.  The Court today decides the substantive issue in the case of Horne v. Department of Agriculture (14-275).  The Agricultural Marketing Agreement Act of 1937 lets the Secretary of Agriculture create marketing orders to maintain stable markets.  Horne and his family grow raisins and acts as a handler for other growers by buying their crop and marketing them.  The marketing order establishes the Raisin Administrative Committee.  The Committee imposes a 47% reserve allowing that portion of the crop to be given to the government to sell in noncompetitive markets, give away, or otherwise dispose of.  Any profits after expenses are returned to the grower.

Horne refused to turn over raisins to the government.  He was fined the fair market value of the withheld crop and other civil penalties.  He ultimately sued the government alleging that the program violates the Takings Clause of the Fifth Amendment.  The Ninth Circuit ruled that this was not a per se taking as personal property is afforded less protection than real property.  That court also stated that the Hornes could avoid the problem by growing different crops.

The Supreme Court reversed. The Fifth Amendment applies equally to personal property as to real property, requiring just compensation from the government.  The history of the Fifth Amendment justifies this.  The Committee’s taking of the 47% of the crop is clearly a taking and the net profits are not just compensation.  The Hornes are not required to pay the fine and then seek its return in other proceedings.  Chief Justice Roberts delivered the opinion of the Court and was joined by Justices Scalia, Kennedy, Thomas, and Alito.  Justices Ginsburg, Breyer, and Kagan joined the opinion as to Parts I and II.  Justice Thomas filed a concurring opinion.  Justice Breyer filed an opinion concurring in part and dissenting in part and was joined by Justices Ginsburg and Kagan.  Justice Sotomayor filed a dissenting opinion.  Justice Breyer would remand the case to determine if any money was due to the Hornes after the accounting.  Justice Sotomayor argues that precedent relied on by the Court does not make the circumstances a per se taking.

Mark

Supreme Court Action: License Plates and a Host of Others

The Supreme Court issued six opinions yesterday.  The most controversial is the Texas specialty license plate case, Walker v. Texas Div., Sons of Confederate Veterans, Inc. (14-144).  The facts are straightforward.  The Sons of Confederate Veterans applied for a vanity plate that featured the organization and included a confederate flag.  A Google image search of [sons of confederate veterans license plate] will bring up ample amounts of results showing the design.  It is also appended to the end of the majority opinion.  Interestingly, it appears that other states have issued plates with the design.  Texas, however, said no to the confederate flag.  The SCV naturally sued.  The federal district court upheld the denial and the Fifth Circuit reversed.

The issue concerned whether plate design was government speech or private speech.  If it was the former, Texas had the right to control its own governmental message appearing on its license plates.  If it was private speech, the First Amendment would prohibit government from censoring the message.  The majority ruled that Texas had the right to refuse the design as it was characterized as government speech.  The Court based this holding mostly on the prior case of Pleasant Grove City v. Summum, 555 U. S. 460 (2009).  In Summum, the Court rejected a private organization’s attempt to place a religious monument in a city park where other privately erected monuments already existed on the basis that the government could control its own message.  The nature of the park did not turn it into a private forum.  The Court analogized the park setting with that of vanity license plates.

The Court’s opinion was delivered by Justice Breyer and he was joined by Justices Thomas, Ginsburg, Sotomayor, and Kagan.  Justice Alito filed a dissenting opinion and was joined by Chief Justice Roberts, and Justices Scalia and Kennedy.  The dissent argues that the Summum case is distinguishable and that the majority passes off government speech with private speech.

The other cases involve subjecting the mentally handicapped to the death penalty, Brumfield v. Cain (13-1433, (the defendant has a right to prove he is mentally handicapped); introduction of statements made earlier by a 3-year old child about abuse does not violate the confrontation clause, Ohio v. Clark (13-1352); whether the state has to prove intent and knowledge when a defendant is charged with selling drug analogues appearing on schedules from the Controlled Substances Act (it does), McFadden v. United States (14-387); and whether a church can be fined for not removing temporary directional signs in time limits contained in its sign code (it can’t in that the applicable code was not content neutral), Reed v. Town of Gilbert (13-502).

Mark