Posts Tagged ‘Supreme Court’

SCOTUS will look at patent forum-shopping

The Supreme Court has granted certiorari in the case of T.C. Heartland v. Kraft Foods, which turns on a minor detail of statutory interpretation but raises high stakes indeed: if the Court agrees that a 2011 enactment narrowed venue in patent suits, it could end the current arrangement in which plaintiffs are free to steer most such suits into just a few friendly jurisdictions. My write-up at Cato concludes:

My own suspicion is that not in a thousand years would a thoughtful deliberative process have entrusted the future care of intellectual property in America’s tech sector to the bench and bar of Marshall, Texas, population 24,501. But that’s in no way a reflection on the quality of the able if wily legal talent to be found in East Texas. It’s a reflection on the quality of the lawmakers in the U.S. Congress.

Filed under: Eastern District of Texas, forum shopping, patent litigation, Supreme Court, WO writings

Supreme Court roundup

I’ve written about Antonin Scalia’s role in the late 1970s and early 1980s as editor of Regulation magazine, and more references to his work there came up at several panels during the recent Federalist Society lawyers convention, all worth watching for their own sake: antitrust (with Judges Doug Ginsburg, Frank Easterbrook (mentioning Regulation at 16:00), et al.), administrative law (Eugene Scalia, same, at 4:25+), and statutory interpretation (Paul Clement, same, at 36:15); and see earlier on my question at the telecommunications panel;
“Can States Forcibly Unionize Small Businesses?” [Ilya Shapiro and Frank Garrison on Cato certiorari petition in Jarvis v. Cuomo, building on Harris v. Quinn line of cases]
High court will hear new cases on limits of personal jurisdiction [Bristol-Myers Squibb v. Superior Court, Tyrrell v. BNSF Railway Company, earlier on BNSF, and more from Michelle Stilwell, WLF on that case]
SCOTUS hears oral argument in “Slants” derogatory trademark First Amendment case [Mark McDaniel and Meredith Bragg/Reason, Jacob Sullum, earlier]
Court accepts case on patent venue that could threaten preferred forum-shopping supremacy of Eastern District of Texas [TC Heartland v. Kraft Foods Group, brief by 56 law and economics professors]
Now taking senior status, Judge Diarmuid O’Scannlain has ranked among MVPs of federal bench in part through his skill at flagging error by his Ninth Circuit for high court review [Ethan Davis and Daniel Sullivan, National Review]

Filed under: Antonin Scalia, Eastern District of Texas, forum shopping, Ninth Circuit, patent litigation, Supreme Court

Obama’s limp win rate at SCOTUS

The Obama administration won only 50.5 percent of its cases before the Supreme Court, an unusually low rate historically. The number can be seen as an outlier, or as “part of a trend that started after the Reagan administration, which won 75 percent of the time. Each succeeding president did worse than the last. President George Bush won 70 percent of his cases, President Bill Clinton 63 percent and President George W. Bush 60 percent.” [Adam Liptak, New York Times; earlier here, here, etc.]

Filed under: Barack Obama, Supreme Court

Supreme Court roundup

How feckless for an editorial board to undermine institutional legitimacy of a key check on executive power, the Supreme Court, by spreading notion that some of its seats are “stolen” [New York Times]
Eastern District of Tumbleweeds? High court asked to curtail forum shopping in patent suits [Washington Legal Foundation on TC Heartland LLC v. Kraft Foods Group Brands LLC, more on E.D. Tex.]
Federal charges result in plea deal. State then charges defendant over same conduct. Ought to call it double jeopardy, even if that means overturning misguided “dual sovereignty” doctrine [Ilya Shapiro and Thomas Berry on cert petition in Walker v. Texas]
“Justices Struggle With Cheerleader Uniform Case That Holds Big Implications For Fashion” [Daniel Fisher on Star Athletica v. Varsity Brands]
More Federalist panels on Justice Scalia’s influence: showcase panel on his constitutional influence; federalism and separation of powers with Roger Pilon et al.; the impact of his writing style; criminal law and the Fourth Amendment; Heller, guns, and the Second Amendment;
Appointments Clause makes one of few checks on unaccountable-by-design CFPB, Court should enforce it seriously [Ilya Shapiro on cert petition in Gordon v. CFPB]

Filed under: Antonin Scalia, CFPB, Eastern District of Texas, forum shopping, guns, New York Times, patent litigation, Supreme Court

Disparagement perfected: Cato brief in Lee v. Tam

Did Cato just file the most not-safe-for-work amicus brief in Supreme Court history? It’s on the question (Lee v. Tam) of whether the government can deny trademark protection to words and phrases that are slurs and, in so doing, gather to itself the task of defining what is a slur. The case, involving the Asian-American band The Slants, is widely seen as foreshadowing the eventual outcome of the challenge to the Washington Redskins’ trademark.

Joining Cato as amici: humorist and Cato fellow P.J. O’Rourke; Profs. Nadine Strossen, Clay Calvert, and Erik Nielson; the Reason Foundation; Frederick, Md.’s Flying Dog Brewery and famed artist Ralph Steadman, whose work adorns its labels; and the Comic Book Legal Defense Fund. It’s signed by Ilya Shapiro and Thomas Berry and written with Trevor Burrus’s assistance.

NSFW warning: as hinted, this brief uses obscene and disparaging words and phrases by the dozens and dozens, so be forewarned.

Filed under: beer and brewers, Cato Institute, Supreme Court, trademarks

December 7 roundup

“Lawyer sues 20-year-old student who gave a bad Yelp review, loses badly” [Joe Mullin, ArsTechnica]
Gown makers’ associational liberty not to sell to Trump family should also protect florist Barronelle Stutzman [Stephanie Slade/Reason; Eugene Volokh on legal treatment of private discrimination based on political belief or association]
What to expect from Trump on legal policy: Harvard Law panel with Adrian Vermeule, Cass Sunstein, Andrew Crespo;
More on new Jonathan Adler book on business and the Roberts Court [Bainbridge]
Edelson class action firm, discussed here before, files vibrator data privacy suit [Chicago Tribune]
“Legal Theory Lexicon: Libertarian Theories of Law” [Lawrence Solum]

Filed under: discrimination law, Supreme Court

Supreme Court roundup

Supreme Court will hear “Slants” trademark case, which could prove relevant to Washington Redskins controversy [Eugene Volokh on Lee v. Tam]
Ooh: Oregon Sen. Jeff Merkley says SCOTUS vacancy being “stolen” which “delegitimizes” any nominee [Roger Pilon] More on President-elect Trump and the Supreme Court: Jeffrey Rosen/Politico, Josh Blackman/National Review;
“Whether a federal court of appeals has jurisdiction to review an order denying class certification after the named plaintiffs voluntarily dismiss their claims with prejudice.” [Microsoft v. Baker]
Are malicious prosecution claims cognizable under the 4th Amendment? [Damon Root, Reason on Manuel v. City of Joliet; more, Glenn Harlan Reynolds/Cato Supreme Court Review]
“Justice Kennedy: The Once and Future Swing Vote” [Ilya Shapiro] Justice Sam Alito’s speech to Federalist Society lawyers looks to post-Scalia era [Adam Liptak, NYT]
“Supreme Court Justices Push Back On Government’s Expansive Insider-Trading Theories” [Daniel Fisher, earlier on Salman v. U.S., Thaya Brook Knight and related video]

Filed under: Fourth Amendment, Supreme Court, trademarks

Rules vs. standards in Supreme Court jurisprudence

Better than law school: Frank Easterbrook, John Harrison, Akhil Amar, and Victoria Nourse on rules versus standards in jurisprudence, with particular attention to the work of Justice Antonin Scalia, who made the subject a particular theme of his. The video is from the Federalist Society National Lawyer’s Convention last weekend, which had a Scalia theme.

Filed under: Antonin Scalia, Frank Easterbrook, rule of law, Supreme Court

Can Congress compel states to ban things?

The Supreme Court’s “anti-commandeering” doctrine holds that the federal government lacks authority under the Constitution simply to order state governments to implement federal programs or act affirmatively in other ways. Did Congress overstep this bound when it enacted the Professional and Amateur Sports Protection Act of 1992 (PASPA), a federal statute that with some exceptions forbids states to “authorize” sports gambling “by law”? That question has come up in a case in which New Jersey sought to repeal some of its old gambling laws. [Ilya Shapiro and David McDonald on Cato’s amicus brief participation supporting New Jersey’s petition for Supreme Court review in Christie v. NCAA et al.]

Filed under: constitutional law, gambling, New Jersey, sports, Supreme Court

A federal school bathroom policy? Not so fast

The Obama administration has ambitiously asserted, as an application of Title IX, that schools nationwide must make available to transgender students the general bathroom facilities that correspond to their gender identity. To resolve a case now up for Supreme Court review, it is not necessary to reach the merits of this policy; the promulgation of the new policy by guidance letter, without advance notice, chance for public comment and other protections for regulated parties, is enough of a defect to strike it down. [Ilya Shapiro and David McDonald on Cato Institute amicus brief, with law professors Jonathan Adler, Richard Epstein, and Michael McConnell, supporting certiorari review in Gloucester County School Board v. G.G.]

[The Education Department] seeks to change federal law not through notice-and-comment rulemaking as required by the Administrative Procedure Act, but through an informal, unpublished letter written by a low-level bureaucrat. …We call on the Court to take this opportunity to overrule Auer and declare that the judiciary will no longer blindly accept self-serving agency interpretations, but make their own independent determinations based on a searching and reasoned reading of the regulations at issue. Should the Court choose not to overrule Auer, we suggest that—at minimum—it hold that only agency interpretations that have received the public scrutiny of notice-and-comment rulemaking merit judicial deference.