criminal law – Prof. Zachary Wolfe, Esq.

Tuesday, February 19

The only case scheduled for argument today is relatively technical but may be of interest to students of statutory construction or those interested in the patent law or the status of the Post Office. The Leahy-Smith America Invents Act (AIA) created a Patent Trial and Appeal Board with authority to review patents that were awarded by the Patent and Trademark Office if a “person” challenges the validity of the patent. Return Mail v. USPS asks whether the Postal Service is a “person” in this context. Royal Mail had its patent invalidated by a post-grant review initiated by the Post Office, and now asserts that the Board should never have conducted the review because the AIA did not define “person” to include government agencies and because the Dictionary Act, which provides definitions for laws that lack specific definitions, defines “person” to not include government agencies. However, the AIA also uses “person” in other contexts in which Congress clearly meant to include government agencies. So the case will offer an academically interesting battle of cannons of statutory construction, and will have implications for who can serve as a watchdog for invalid patents. (On the later point, the Electronic Frontier Foundation has an interesting amicus brief in support of the Post Office.)

(Since this is the only case today, it’s possible the argument will run a little longer than an hour, but I wouldn’t expect it to go more than a few minutes over. The Court had been scheduled to hear the dispute regarding discovery to uncover the true motive for adding a citizenship question to the next Census, but that was put on hold and may well be removed from the docket.)

Wednesday, February 20

The only case scheduled for today involves technology licenses that a debtor has rejected in a bankruptcy proceeding. Debtors are permitted to “reject” contracts in bankruptcy proceedings, but this has very different implications if it is a simple sales contract (in which case the debtor is liable for contract damages, ie any added expense the other party incurs as a result of having to find a different partner) or something like a contract that gives rights to use, or even exclusive rights to use, a piece of technology or trademark. It is a very technical area of the law and I would not recommend this case for a casual observer. But if interested, there’s a useful article about it on Scotusblog.

Monday, February 25

A really interesting case about the “state actor” test in the context of First Amendment rights and (a bit more obscurely!) public access television. The Constitution generally cannot be violated by private individuals or companies because it regulates only what the government may or may not do — but there are two significant qualifiers on that general rule. First, if the government creates and retains control over a private company, then the constitution applies. In Manhattan Community Access Corp. v. Halleck, the City created a private company that controls access to the public access cable channels but appoints only two of the thirteen board members. Second, the constitution might apply to private companies that perform a “traditional public function.” But that is a rather fraught doctrine (it’s been declared “in retreat” since the 1970s; and consider private prisons, for example, as one amicus brief in this case touches upon).

I think this should be a really interesting case to attend, but read this overview and get a sense of the arguments by reading at least a few of the filings. Notably, the Electronic Frontier Foundation filed an amicus brief in support of neither party, including a section “In Praise of Unmoderated Platforms” followed immediately by a section arguing that “Moderated Platforms Are Also Valuable.”

Tuesday, February 26

Both cases today involve interpretation of criminal law statutes. The first, US v. Haymond, involves sentencing based on facts that were not found beyond a reasonable doubt or by a jury. Haymond was convicted of possession of child pornography, served time, and then was released on probation subject to a requirement that he not commit another crime. He was then found to have been in possession of child pornography again, but this was determined by the judge alone and based on a “preponderance of the evidence” standard (more likely than not; not beyond a reasonable doubt). The court not only revoked his parole but sentenced him to an additional term of imprisonment. He argues this violates his rights to due process and trial by jury. There’s a useful discussion of these issues here.

The second case, Mont v. US, is a bit more technical, but certainly important. It involves how to count (or pause counting) the days that someone has to serve probation: “Whether a period of supervised release for one offense is tolled under 18 U.S.C. § 3624(e) during a period of pretrial confinement that upon conviction is credited toward a defendant’s term of imprisonment for another offense.”

Wednesday, February 27

This is an important day for people interested in religious liberty questions, and particularly the establishment clause. American Legion v. American Humanist Association and Maryland-National Capital Park and Planning Commission v. American Humanist Association involve cross-shaped memorials on public land.

Establishment clause doctrine has been criticized by all sides as unwieldy and unclear — we’re not even sure what the standards are, much less how to apply those standards in a given case. Some precedent says the primary concern is to avoid “excessive entanglement” of church and state, but it’s not always clear what is or isn’t excessive, and anyway, there are other cases that suggest we should be focused on different concerns. Two of the “questions presented” for today highlight this pretty clearly: “whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.”

Scotusblog has a helpful “In Plain English” article as well as some great posts from a variety of perspectives in an online symposium.

I would get there very early for this argument. Alternatively, forget about getting into the courtroom and just plan to take in the dueling demonstrations and press conferences that I’m sure will be taking place on the sidewalk in front of the Court. These usually start around 8am for drive-time radio coverage and keep going until a while after the lawyers exit the courthouse, which wil be around 11:30. The two cases are consolidated, with a total of 70 minutes scheduled for arguments (but they’re the only cases today so could run a few minutes over).

Some important cases in the next block of arguments, including arbitration, death penalty, and class action settlements.

Monday, October 29

The court takes on arbitration agreements in both cases this morning. Pre-dispute arbitration agreements are contracts in which the parties agree that any dispute they may have (usually involving a specific subject matter, like an employment or business relationship) will go to arbitration rather than be resolved in court. Courts are therefore obligated to reject any lawsuit that should instead be arbitrated (by granting a “motion to compel arbitration”). The Federal Arbitration Act (FAA) requires all state courts to enforce these agreements — and in recent decades, the Supreme Court has steadily struck down various legal doctrines that state courts had been trying to deploy to limit arbitration agreements.

One unresolved issue is who decides whether the parties have signed a contract to arbitrate disputes of this kind. If the agreement is to arbitrate disputes “arising out of the employment relationship,” is that just about wages and benefits or does it include a fall in the workplace parking lot, or a fight at an after-work happy hour? Typically, if someone files a lawsuit then it is the judge’s job to determine if there’s an agreement that covers that suit. But parties also can agree to let the arbitrator decide “questions of arbitrability.” If there is such a clause, then arguably every lawsuit must first be reviewed by an arbitrator, who will decide whether the court can have that case or if the dispute falls within the scope of the arbitration agreement.

In this morning’s first case, Henry Schein Inc. v. Archer & White Sales Inc., there is (at least arguably) an agreement that the arbitrator will decide questions of arbitrability. But the arbitration agreement also clearly states that it does not cover “actions seeking injunctive relief.” One company filed suit, the other moved to compel arbitration (including of the question whether the arbitration agreement covers this dispute), and the court ruled that it wasn’t going to send the question to an arbitrator because the lawsuit sought injunctive relief, so the suggestion that the agreement covered this type of lawsuit was “wholly groundless.” This is a doctrine other courts have relied upon, but it’s not clear it’s allowed under the FAA, which strongly favors arbitration. So the Court has accepted cert. on “Whether the Federal Arbitration Act permits a court to decline to enforce an agreement delegating questions of arbitrability to an arbitrator if the court concludes the claim of arbitrability is ‘wholly groundless.’”

In the second case, Lamps Plus Inc. v. Varela, there’s agreement that the dispute goes to arbitration, but the disagreement is over whether the party can bring a class action claim to arbitration. (It’s also an interesting factual context: the employer fell for a phishing scam and revealed personal information about employees.) The arbitration agreement used common “boilerplate” language that did not specify class actions as either permitted or prohibited, so the court followed a typical “rule of construction” that ambiguities are resolved against the party that drafted the agreement, which in this case meant that class actions were allowed. Again, given the FAA’s pro-arbitration stance, the issue is whether state court doctrines can impose on the arbitration process in this way.

Tuesday, October 30

An interesting tax case (!) involves rights under the Yakama Treaty of 1855. Washington State taxes fuel that enters the state, and Cougar Den is a fuel wholesaler that brings fuel into Washington by truck. But Cougar Den is owned by the Yakama Indian Nation, and the Treaty gives them the right to “travel upon all public highways.” On that basis, the company refused to pay a $3.6 million tax bill. The closeness of the legal question is illustrated by the conflicting rulings in this case: at the first hearing, an Administrative Law Judge sided with the tribe; the Director of the tax office reversed that ruling and sided with the state; a state trial level court reversed the Director and ruled for the tribe; and then the State Supreme Court reversed the lower court order and ruled for the state. An interesting and thorough discussion of each side’s arguments are available here; also see the case page for Washington State Department of Licensing v. Cougar Den Inc. to review more of the briefs in this case.

The second case is a technical issue of appellate criminal procedure. One basis for an appeal is “ineffective assistance of counsel,” but the defendant must show “prejudice” — not only that the lawyer did something wrong, but that the lawyer’s error made a difference in the outcome. Some types of errors get a “presumption of prejudice.” One such type of error is failing to file an appeal (for whatever other basis). But in Garza v. Idaho, the lawyer didn’t file an appeal (even though the client asked him to) because the defendant had previously signed a plea agreement that waived his right to appeal. The Court will (hopefully) resolve a Circuit split over whether the presumption of prejudice applies where the defendant had waived appellate rights. It may seem like an obscure technical issue, but issues like the validity of the waiver could be raised more easily if the presumption of prejudice applies.

Wednesday, October 31

Frank v. Gaos is a fascinating case, with unusual alliances, challenging cy pres awards in class action settlements. Lawsuits against Google for disclosing search histories to third parties without consent ultimately settled for $8.3 million, most of which would be paid to several nonprofits according to a “cy pres award.” This is a method (short for the French “cy près comme possible,” or “as near as possible,” and pronounced by most US lawyers like sigh-prey) that can be employed when it is impossible or impractical to distribute funds (or other property) to individuals who were wronged. In this case, the parties agreed that it would be impractical to determine what share would be appropriate to apportion to each Google user who had varying levels of personal information disclosed, so the funds went to organizations involved in internet privacy. The lead objector is from the Competitive Enterprise Institute, but those complaints are supported by groups ideologically aligned with them as well as by the Electronic Privacy Information Center and others from elsewhere on the political spectrum. For a view on the other side, see the brief from Public Citizen and a group of law professors. The Court has accepted cert. on “Whether, or in what circumstances, a cy pres award of class action proceeds that provides no direct relief to class members supports class certification and comports with the requirement that a settlement binding class members must be ‘fair, reasonable, and adequate.'”

The second case today, Jam v. International Finance Corp., is not one I would recommend to the casual observer, but stay for it if you are interested and can read up on it in advance. “Whether the International Organizations Immunities Act—which affords international organizations the ‘same immunity’ from suit that foreign governments have, 22 U.S.C. § 288a(b)—confers the same immunity on such organizations as foreign governments have under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-11.”

Monday, November 5

(Both cases today will be hard to follow for a casual observer. Sturgeon v. Frost involves NPS authority over private and native land holdings in Alaska. Virginia Uranium, Inc. v. Warren is a pre-emption issue regarding state regulations that impact nuclear material.)

Tuesday, November 6

A significant case involving the death penalty is up first today. This is the second of two major capital punishment cases this term (the first, Madison v. Alabama, was argued Oct 2 and noted in my prior post). See the interesting and detailed discussion of both from The Atlantic. Bucklew v. Precythe does not challenge the sentence or even lethal injection as a general matter, but argues that this individual has a specific medical condition that will cause him to experience unusually intense pain from the cocktail. The legal issues are:

(1) Whether a court evaluating an as-applied challenge to a state’s method of execution based on an inmate’s rare and severe medical condition should assume that medical personnel are competent to manage his condition and that procedure will go as intended; (2) whether evidence comparing a state’s method of execution with an alternative proposed by an inmate must be offered via a single witness, or whether a court at summary judgment must look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate; (3) whether the Eighth Amendment requires an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition; and (4) whether petitioner Russell Bucklew met his burden under Glossip v. Gross to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the state’s method of execution.

(The second case today again is not one I’d widely recommend. BNSF Railway Company v. Loos involves the Railroad Retirement Tax Act.)

(Wednesday, November 7, also involves two cases that I would not recommend. Culbertson v. Berryhill involves an unusual Social Security taxation issue. Republic of Sudan v. Harrison is about how you serve process on a foreign state.)

Tag: criminal law

February cases