P2P Protocols and the New Inducement Rule

Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.

Grokster and Streamcast are responsible for peer-to-peer software packages such as Morpheus. Neither company relies on a central server, or takes an active role in indexing copyrighted or non-copyrighted works, but both companies sell advertising space in their software, and both companies' business models rely on copyrighted works being available. There is plenty of evidence described in this case to show that the companies knew about, and to a large degree encouraged, copyright infringement over their networks. The question in this case is whether these two companies can be held liable for the infringement committed by the users of its software.

Sony Corp. v. Universal City Studios held that because the VCR was capable of "commercially significant noninfringing uses ... the manufacturer could not be faulted solely on the basis of its distribution." In this case there are two theories of copyright infringement that MGM claims apply: (1) "contributory" infringement occurs by "intentionally inducing or encouraging direct infringement" and (2) "vicarious" infringement occurs "by profiting from direct infringement while declining to exercise a right to stop or limit it" (notice, 2 requires "declining to exercise a right to stop or limit" infringement, as opposed to an affirmative duty). Here the majority holds that the Sony decision was only applicable in light of an argument for "imputed intent," thus leaving the two theories of liability described above, open for application despite "commercially significant noninfringing uses." In this case the Sony decision is not overturned or reconsidered, but expressly limited to the "imputed intent" theory. Furthermore, this rule does not prevent imputed intent from coming from other evidence, it simply states that an article's ability to be used to infringe upon copyright is not sufficient to demonstrate imputed intent.

So, here it is: "Thus, where evidence goes beyond a product’s characteristics or the knowledge that it may be put to infringing uses, and shows statements or actions directed to promoting infringement, Sony’s staple-article rule will not preclude liability." This specifically addresses infringement by "inducement," something that the Court adopts in this decision. Inducement requires (1) affirmative intent that the product be used to infringe, and (2) that infringement was encouraged. The Court explicitly states however that neither "mere knowlege of infringing potential," nor "ordinary acts incident to product distribution" would be sufficient to demonstrate inducement.

Justices Ginsburg, Rehnquist, and Kennedy concurred, indicating that they would overturn the decision because there was a question of material fact remaining, and the lower court should not have granted summary judgment (summary judgment cannot be granted where there is a question of material fact). This opinion goes on to say that the evidence of noninfringing uses of these software packages was not enough to grant summary judgment because the evidence did not establish a "substantial" noninfringing use.

Justices Breyer, Stevens, and O'Connor, in a concurring opinion, argues that an article need only be capable of commercially significant noninfringing uses for the Sony question to be resolved, and that, as opposed to the conclusion directly above, this case does present enough evidence to satisfy that standard. Justice Breyer then weighs the pros and cons of overturning Sony and concludes (for the most part) in favor of maintaining Sony's standard.

5th Amendment State-Federal Conundrum

San Remo Hotel, L. P. v. City and County of San Francisco

This case involves a hotel in San Francisco that was mistakenly classified as 100% residential almost a hundred years ago. Now they want to convert their rooms to a tourist classification, but to do so, they are required to pay some $500,000. They made a "takings" clause argument under the California Constitution and lost. The state court judges recognized that California's Constitution's takings clause has been interpreted in the same way as the federal takings clause has been, and thus, because this law applied to a large class of people, and was a legislative action rather than an executive ad-hoc action, the test should be whether there was a "reasonable relationship" between the legislation and the governmental interest (promoting residential opportunities). The question here is, in light of a federal law requiring federal courts to "give preclusive effect" to any state court judgment that effectively decided the federal issues, are the hotel's 5th Amendment arguments precluded here? This is especially important because the hotel was required to go through the state courts, which would prevent them from ever having their federal claim heard in a federal court.

The Constitution allows Congress to require "full faith and credit" to judicial decisions across the various state boarders, which it did in federal law, and which in turn would require an exception to be carved out for the hotel to win in this case. In England the Court held that when the state courts must decide an issue before the federal question can be addressed (in this case, the state denying just compensation before the 5th Amendment is violated) "the plaintiff may reserve his right to return to federal court for the disposition of his federal claims." However, in this case the issue the state had to resolve was not independent of the federal issue, as the England decision assumes. The majority here decided that when the hotel went to state court it unnecessarily broadened its argument, and invited preclusion by asking the state court to rule on issues that would preclude federal courts from ruling on its federal claims. Specifically, the hotel asked the state court to rule on a "takings" interpretation that was effectively the same as the federal question.

The hotel's argument relies on Santini v. Connecticut Hazardous Waste Management Service, which created just the kind of exception that the hotel is looking for, "that parties 'who litigate state-law takings claims in state court involuntarily' pursuant to ['ripeness' rules set forth by the Supreme Court] cannot be precluded from having those very claims resolved “by a federal court" because the result would be "ironic and unfair." The Court here disagrees for three reasons. First, there is no right to have federal issues addressed in federal court, as long as they were resolved by a court of competent jurisdiction while determining an issue of fact or law that was necessary to its judgment. Second, the Court does not accept that exceptions can simply be drawn wherever it is convenient. Third, the hotel could have had most of their claims heard in federal court without having addressed them in state court, and those that would require a hearing in state court could be addressed there.

Chief Justice Rehnquist wrote a concurring opinion to question the rule that litigants must seek compensation in state court before addressing their 5th Amendment violations in federal court.

Boring: State Tax Law in Federal Court

Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg.

Grable had his property siezed because he owed federal taxes. He was notified by mail, but now argues (5 years later) that the federal tax law requires that notice be “given by the Secretary to the owner of the property [or] left at his usual place of abode or business,” and that this requires the Secretary to personally deliver the notice. But the only question here is whether it should be heard in federal or state court, because the case turns on a federal matter in a state action.

A unanimous court said: "A federal court ought to be able to hear claims recognized under state law that nonetheless turn on substantial questions of federal law, and thus justify resort to the experience, solicitude, and hope of uniformity that a federal forum offers on federal issues."

Justice Thomas, in a concurring opinion, states that at some other time he may be willing to adopt a different view, one set out by Justice Holmes, which limits jurisdiction "to cases in which federal law creates the cause of action [on the face of] the plaintiff’s complaint."

UPDATE 08/30/06: It's funny, but this is one of the first cases mentioned in my classes at law school as a landmark-earth-shattering case (Civil Procedure). It is so important because it upset a general understanding that the court had previously adopted a hard and fast rule saying that these sorts of cases were out, and had disposed of the kind of weighing and balancing in the rule mentioned here.

Discriminatory Use of Peremptory Challenges: Miller-El, Round 2

Miller-El v. Dretke

When Miller-El was tried for murder and attempted murder after robbing a Holiday Inn in Texas the prevailing case-law on jury selection was Swain v. Alabama (1965) which required an objector to prove "systematic discrimination." In this case the lower court accepted all of the prosecutor's race neutral reasons for dismissing 10 of the 11 qualified black prospective jurors. While Miller-El's appeal was pending the Supreme Court decided Batson v. Kentucky (1986) which overturned the "systematic discrimination" test, and replaced it with the rule that "discrimination by the prosecutor in selecting the defendant’s jury sufficed to establish the constitutional violation."

To win his case Miller-El must show by clear and convincing evidence that the Texas court's conclusion was unreasonable, overcoming a presumption of correctness favoring the Texas court. The majority uses 5 arguments to show that the preemptory challenges were used for discriminatory purposes. (1) The majority compares several potential black jurors' stated views on the death penalty with those of white jurors that did serve, and concludes that whatever reasonable objections the prosecution may have had about the black jurors would have been equally applicable to the white jurors. (2) The majority looks to the number of times, and the inferred reasons behind "shuffling" the jury pool, which each side was allowed to do, and which each side did. Shuffling the jury pool is exactly what it sounds like, and the majority inferred that the purpose behind this by the prosecution was to move minority jurors to the back of the line. (3) The majority identified two types of questions regarding the death penalty, one being graphic in its description, and one not, and concluded that 3% of non-black jurors received the graphic description, as opposed to 53% of blacks. Of those that expressed ambivalence about the death penalty, 30% of non-black jurors received the graphic description, as opposed to 80% of blacks. (4) [or perhaps 3b] The majority concluded that the prosecution deliberately asked 12.5% of non-black jurors what the lowest penalty they would give would be without telling them what the mandatory minimum was as opposed to 94% of blacks. Of those that expressed ambivalence about the death penalty: non-black: 27%; black: 100%. (5) Finally, the majority used testimony by former Assistant District Attorneys about (in)formal policies regarding minorities as being favorable to the defense.

The dissent argues that a substantial amount of what the majority relies on is not properly before the court because under the AEDPA the court must evaluate the case “in light of the evidence presented in the State court proceeding,” which articles such as juror cards and most of the juror questionnaires were not. The majority argues that "the dissent conflates the difference between evidence that must be presented to the state courts to be considered by federal courts in habeas proceedings and theories about that evidence." The dissent also counters the majority's assertions about most of the statistical information, and some interesting points are made about the weight of evidence, but to get into it here would extend this to be as long as the opinion is. I guess the question as to whether the evidence is properly before the Court turns on what "presented" means, and whether an implicit reference is enough to have presented it to the state court.

More interestingly, Justice Breyer, in a concurring opinion, argues for the abolition of preemptory challenges. I have written a number of papers, and done a few presentations on preemptory challenges, and the fact that a Supreme Court Judge would use an opinion as an opportunity to deride them is encouraging. Preemptory challenges give the lawyers a chance to stack the jury without justification, and may very well be abolished some day. The reason I find Justice Breyer's opinion so encouraging is that it is not often that something so historically pervasive in our system is seriously questioned by someone of his status, and it is nice to see that legal professionals are not afraid to question the system in which they work.

What "Process" is "Due" Prisoners Before Tranfer to a SuperMax Prison?

Wilkinson v. Austin

Ohio State Penitentiary (OSP) is an awful place for the highest security inmates in Ohio. The inmates there are in solitary confinement 23 hours a day, with a light on at all times, which is dimmed occasionally. If they try to shield themselves from the light to sleep they are subjected to further punishment. Visitation is infrequent and a prisoner's stay at OSP is indefinite. The question in this case is whether Ohio has met its 4th Amendment due process requirements before placing prisoners in OSP. The 8th Amendment cruel and unusual punishment argument was settled.

Here the Court is considering Ohio's new policy for placement in OSP. Prisoners can either be placed in OSP on their way into the prison system, or at any time during their stay at a lower security prison. When each prisoner enters the system they are given a number from 1 to 5 based on their offense, gang history, etc. Those that earn a level of 5 are placed in OSP. Replacing an old policy regarding placement is new policy that provides a system by which prisoners are placed in OSP or have their level increased. A prisoner can get a level of 5 in two ways. First, they can get that level on their way into the prison system (depending on their crime), or second, if they do certain things (like lead a prison riot) while in jail proceedings can begin to increase their level. In the process: 1. First, a prison official fills out a form detailing reasons to increase the inmate's security rating 2. Second, that form is given to a committee and to the inmate and the committee makes a decision after having heard from the inmate (the inmate cannot call witnesses) 3. Third, the Warden has to sign off on a decision by the committee to increase the security level 4. If the Warden does sign off on the decision to increase the security level, the whole matter is forwarded to the "Bureau" (another committee) for approval, at which point the inmate has one last chance to lodge an objection. The whole process works in reverse to get out of OSP during one of each inmate's annual reviews.

The lower court ordered that
1. The inmate be provided with any and all material that would be considered by the Committee
2. Ohio allow, and make a positive effort to effect, witnesses to be called and documentary evidence to be presented on the inmate's behalf
3. The Committee offering a brief statement of reasons was insufficient. All evidence must be presented
4. Ohio notify the inmate twice per year of his progress toward security level reduction, and how he could improve his chances

Ohio argued (1) that the inmates "lacked a constitutionally protected liberty interest in avoiding placement at OSP." (as in life, liberty, property) and (2) that its New Policy's procedures were adequate to meet their Constitutional requirement. The Court notes here that in Sandin a "liberty interest" was found in relation to the situation in which the person finds themselves at the moment, so while a free person would have their liberty impeded by being moved to a medium security prison, an inmate in a minimum security prison would not. Where exactly that baseline is for a prisoner in Ohio was not decided on because the Court was convinced that "assignment to OSP imposes an atypical and significant hardship under any plausible baseline" distinguished from Sandin (which concerned transfer solitary confinement for 30 days) because of the duration of solitary confinement, and the fact that once a prisoner enters OSP they are no longer eligible for parole.

Having found a "liberty interest" the court described a loose balancing tool from Morrissey v. Brewer, which requires consideration of (1) the private interest, (2) the probability of an erroneous violation of that interest, and (3) the government's interest (in all its forms). The Court here, considering these three factors, decided that the unamended new policy fulfilled Ohio's constitutional requirement because the private interest is significantly lower than it would be for anyone else, there are a number of procedural safeguards to protect against erroneous violation, and the government has a strong and diverse set of interests in maintaining its policy.

Boring: Biological Product Protections Before the Patent Period

Merck KGaA v. Integra Lifesciences I, Ltd.

The following is the question in this case. Its about a rule specifically regarding biological patents before the patent period, and is not interesting. The issue below illustrates that fact:

"“To prevail on this defense, [petitioner] must prove by a preponderance of the evidence that it would be objectively reasonable for a party in [petitioner'’s] and Scripps'’ situation to believe that there was a decent prospect that the accused activities would contribute, relatively directly, to the generation of the kinds of information that are likely to be relevant in the processes by which the FDA would decide whether to approve the product in question.

Each of the accused activities must be evaluated separately to determine whether the exemption applies.

[Petitioner] does not need to show that the information gathered from a particular activity was actually submitted to the FDA."”

yeah, I'm skipping this one.

What Happens When the State Makes Two Contradictory Arguments?

Bradshaw v. Stumpf

Three men, Stumpf, Wesley and Edmonds, were driving down the highway in Ohio and decided that they needed gas money. So they pulled over and Stumpf and Wesley got some people to let them into their house by asking to use the phone. They then held the two at gunpoint while they robbed them. The man was shot and blacked out, and when he awoke he heard the shots that killed his wife. Stumpf admitted to shooting the man but has, from day one, denied shooting the woman. In a plea bargain, and while Wesley was fighting extradition to Ohio, Stumpf agreed to plead guilty to one count of aggravated murder, and one count of attempted aggravate murder. To secure the death penalty the prosecutor argued that Stumpf had been the principle participant in the robbery and murder. Then in Wesley's trial it became clear that he had fired the shots that killed the woman. Furthermore, the prosecutor argued that Wesley had been the principle participant, in opposition to his argument in Stumpf's trial. The District Court reversed a lower court's denial of habeas corpus on the grounds that (1) Stumpf must have entered his plea unknowingly because the "aggravated murder" charge includes acts that Stumpf has denied from the beginning, and (2) Stumpf's due process rights were violated by the contradictory approach of the prosecutor. Note: The Court here is applying the law pre 1996 AEDPA (aka: Antiterrorism and Effective Death Penalty Act; aka: Bill Clinton's Patriot Act).

The first reason that the District Court gives for granting habeas corpus is that Stumpf was not aware of what his guilty plea entailed. A guilty plea is valid only if it is given "voluntarily, knowingly, and intelligently, with sufficient awareness of the relevant circumstances and likely consequences." However, courts are very careful to make a record of the fact that defendants understand what they are agreeing to, and the lower court did so in this case, and the Court declined to hold that the lower court judge himself must read the provisions to the defendant. What's more, under Ohio law, the fact that Stumpf did not shoot the woman does not disqualify him from the aggravated murder charge, as alders and abettors are also eligible. Also, the Court found that any ambiguities in the record about Stumpf's plea only indicate anticipation for the mitigation hearings, and that the fact that the plea agreement was a bad deal could only be attacked by arguing that he had ineffective assistance of counsel, which is not the question in this case. The Court thus reversed the District Court's first reason for granting habeas corpus. Because, again, in Ohio the fact that Stumpf did not shoot the woman does not disqualify him from the aggravated murder charge, and because the prosecutor's contradictory arguments were not shown to have in any way affected Stumpf's plea, the second reason for the grant of habeas corpus was reversed as well.

There is much left unanswered. Justice Souter, in his concurring opinion, gets more to the point about the prosecution maintaining conflicting positions, but fails to draw a solid conclusion, closing with: "If a due process violation is found in the State's maintenance of such inconsistent positions, there will be remedial questions. May the death sentence stand if the State declines to repudiate its inconsistent position in the codefendant's case? Would it be sufficient simply to reexamine the original sentence and if so, which party should have the burden of persuasion? If more would be required, would [an entirely new] sentencing hearing suffice?" Another concurring opinion by Justice Thomas (with whom Justice Scalia joins) states very plainly that "this Court has never hinted, much less held, that the Due Process Clause prevents a State from prosecuting defendants based on inconsistent theories."

Racism in Jury Selection: When Enough is Enough

Johnson v. California

In this case a black man, Johnson, is appealing his conviction for second degree murder because the prosecution used their peremptory challenges to remove all black jury members. When juries are chosen a prospective juror may be removed either 'for cause' or by one of either lawyer's peremptory challenges, which require no reason or explanation. In this case of 43 prospective jurors, 3 were black. After the prosecutor used his challenges to remove the first two jurors the defense objected, but the judge ruled that the defense had failed to establish a prima facie case of discrimination, and did not ask the prosecution for an explanation. After the third and final black juror was removed the defense objected again, but the court held that there were possible explanations other than discrimination (equivocal answers on a questionnaire). The question here is whether the standard of "strong likelihood" or "enough evidence to permit the inference" should be used to make a prima facie case for discrimination, the first essentially amounting to 51% conclusive, and the second meaning simply that there is reason to believe that discrimination took place.

Here the Court lays out exactly how objections for discrimination to peremptory challenges should work. "First, the defendant must make out a prima facie case 'by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.' Second, once the defendant has made out a prima facie case, the 'burden shifts to the State to explain adequately the racial exclusion' by offering permissible race-neutral justifications for the strikes. Third, '[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.' " The Court found that California's requirement of a "strong likelihood" was unduly burdensome, and that rather "a defendant satisfies the requirements of Batson'’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred."

Justice Thomas dissented because Batson (the precedent that this is whole case is set on) declined "to formulate particular procedures to be followed" in cases such as this, and gave the States the power to experiment (subject to the minimum of 14th Amendment "equal protection" requirements) with their own methods and interpretation, a framework with which this case complies in JusticeThomas' opinion.

Does the ADA Apply to Foreign Ships

Spector v. Norwegian Cruise Line Ltd.

In this case Norwegian Cruise Line is being sued for noncompliance under Title III of the Americans with Disabilities Act (ADA). Title III of the ADA requires that certain reasonable accommodations be made for disabled persons such as handicapped accessible rooms, railings, etc. The question is whether or not Title III of the ADA applies to a foreign-flag ship (a ship that is for the most part outside the jurisdiction of the United States).

The courts presume that Congress does not pass laws that apply extraterritorially unless those laws have a clear statement demonstrating Congress' intent otherwise. In this case Congress defined places of "public accommodation" and "specific public transportation"(where Title III applies) by listing things like hotels and restaurants but not cruise ships. In this case the majority found that cruise ships clearly fit within this definition, considering that they are little more than floating hotels with restaurants. The courts have also held that "general statutes are presumed to apply to conduct that takes place aboard a foreign-flag vessel in United States territory if the interests of the United States or its citizens, rather than interests internal to the ship, are at stake." The majority here finds that Title III is applicable to foreign-flagged cruise ships, but insofar as Title III affects the internal order of the ship, a clear Congressional statement of intent would be necessary. Furthermore, where Title III would conflict with international law, its requirements would not be "readily achievable" (the limit of reasonableness under Title III) and would thus not be required.

Justice Thomas' opinion states that the clear statement requirement applies to all structural changes to a ship that Title III would require, and that this clear statement requirement would apply as soon as conflict with international law was possible rather than certain. Justice Thomas also disagrees with the majority's division of the statute because whatever use the court's rules are to determine Congressional intent, "they are useless when modified in ways that Congress could never have imagined." Finally, Thomas argues that his conclusion follows because he never agreed with Clark v. Martinez, which states that the "lowest common denominator" of a law must govern, while the majority relies on it to distinguish classes of application of Title III (one class being where the ship's internal order is affected, and another where it is not).

The dissent interprets Title III to more broadly affect the internal order of the ship, and sees
the purpose of the clear statement requirement to be the avoidance of "casually subjecting ocean going vessels to laws that pose obvious risks of conflict with the laws of the ship‚’s flag state, the laws of other nations, and international obligations to which the vessels are subject." The dissent takes Justice Thomas' opinion that once this conflict is possible, a clear statement of Congress' intent that the law apply is required. The minority also states that the question of Congress' intent must be applied to Title III as a whole, and that "to believe that there was any such intent section-by-section and paragraph-by-paragraph is delusional."

Summer Coming for the Court

It'’s the end of the Supreme Court's term, and they are releasing opinions like crazy. I'm told that it is common for the Court to release many opinions right before the end of the term, and I am not going to try to keep up. There are currently seven opinions that I haven't even read yet, and I think I'll leave them for now. At least until the Court goes into recess.

It's summer for the court. It is almost sure that Chief Justice Rehnquist will be retiring because of health problems, so keep an eye out for news about who will replace him on the Court. This means that George Bush will have the opportunity to put someone new on the Court and name someone as chief justice. It is by no means a rule that the new chief justice must be a previous member of the Court, Chief Justice Earl Warren was given the position directly from (I believe) governor of California.

Who will be the next chief justice?

The justice with the most seniority is Justice John Paul Stevens. Stevens is easily the most liberal justice on the Court. There is absolutely no way that President Bush will name him as chief justice. President Bush will put a conservative in the position. This leaves him with three viable options of those that are currently on the Court, each with their own problems.

1. Antonin Scalia: President Bush has said on a number of occasions that he would like to nominate someone who applies a "textualist" interpretation of the Constitution, something that Justice Scalia has often advocated, and even to some extent created. There are some hints that Scalia either knows something that we don't, or just really wants the position. He has been speaking more regularly than he has in the past, something that most judges (and especially those on the Supreme Court) generally avoid (though he has avoided doing so less than others in the past). Scalia is exactly the kind of judge that Bush wants on the Court, and I would be somewhat surprised if he passed up the opportunity to promote him.

However, Scalia would be a tough sell to Congress. It's true that Bush could probably get anyone he wants because Republicans control both the House and Senate, and have no possibility of using a filibuster without inviting the 'nuclear option,' but Scalia is accused of being an activist judge on the conservative side as much as any liberal judge is on the liberal side. Scalia is absolutely opposed to any right to privacy, often stating 'if you want a right to privacy, pass an amendment.' Democrats would do anything to keep him from being promoted.

2. Clarence Thomas: Justice Thomas is the next most conservative member of the Court, and certainly comes out on the side that Bush would want his chief justice to, but Justice Thomas comes with his own problems. Thomas has somewhat of a spotty past in terms of women and activist groups, but these are hardly issues that Democrats have a right to be judgmental about. Thomas' real problem with congressional Democrats would be with his civil rights record. He has consistently come down against civil rights, conspicuously on racial issues. Thomas is against affirmative action, feeling that he was done a disservice in college by its stigma, and (for example) in the last two weeks has twice been the lone dissenter in cases dealing with racial bias in jury selection. This is nothing new, and congressional Democrats would have no problem digging up all of his anti-civil-rights opinions and using them against him.

3. Sandra Day O'Connor: Justice O'Connor is the third most conservative member of the Court, but is considered to be more of a moderate than anything else. If Justice O'Connor were nominated to be the newest chief justice she would probably be passed overwhelmingly by Congress. The only real sticking point with Democrats would be her position on religion. O'Connor advocates a position on religion recognizing "ceremonial deism," which evaluates religion in government and schools by considering that the ceremonious aspect of religion neutralizes its offensive aspect. For example (and this is speculation here), "under God" in the pledge of allegiance, praying before legislative session, and some incarnations of the Ten Commandments would be acceptable in her view. President Bush would most likely choose someone from outside the Court before O'Connor because this is his chance to put an extreme conservative in the position, but in my view, the Court would probably be best off if Justice O'Connor were the new chief justice; powerful moderates in the judiciary are always a good thing.

As I said before, there is no rule, written or otherwise, that promotions to chief justice must come from within the Court, so it is quite likely that Bush will choose someone from outside. As far as who he will pick to fill the empty spot, you can bet it will be a fire-breathing conservative, a-la Alberto Gonzales, but I really have no idea who it would be. Alberto Gonzales had enough trouble getting through the process to be Attorney General, and his memo on torture would most likely sour any possibility for a Supreme Court nomination, but it all depends on how much Bush is willing to put into it.

Who Has Title to Submerged Lands in Alaska?

Alaska v. United States

Alaska is attempting to secure possession of submerged land. States enter the Union on "equal footing" with the original 13 colonies and "and succeed to the United States’ title to the beds of navigable waters within their boundaries." The Submerged Lands Act establishes the presumption of title by the states to land within three miles from the state's territorial boundaries, unless the government sets lands aside before statehood. Alaska is trying to secure the rights to (1) a set of land that is beyond 3 miles from either the mainland or any individual islands, but may be within 3 miles of Alaska's "inland waters" and (2) land submerged in Glacier Bay which is undoubtedly "inland waters," but which the United States must "rebut Alaska’s presumption of title."

As to the first set of submerged lands, for Alaska to show that they are under "historic inland waters" Alaska must show that it "(1)exercises authority over the area; (2) has done so continuously; and (3) has done so with the acquiescence of foreign nations.” To do this, the Court argues that Alaska must show that it has asserted, if not exercised, its right to exclude vessels engaged in "innocent passage." Alaska's argument as to the first set of lands is that it inherited whatever rights Russia once had, and Russia's stationing of a brig on the waters outside of the boundaries for these lands demonstrated that it asserted is authority over the area. The Court rejects this argument because the only time that authority was implied by either Russia or the United States, was in relation to a vessel that was not engaged in "innocent passage," but rather, was on a mission to secure provisions, and because internal U.S correspondence asserted a right of passage. Further examples are dismissed by the Court as insufficient.

Alaska alternatively argues that the area is under a "jurisdictional bay" which is delineated by a set of islands, which (Alaska assert) are connected so as to form a bay. The Court rejects this argument because the "bay" is not a “well-marked indentation," nor is it something that a mariner would recognize.

Regarding Glacier Bay (National Monument), Alaska retains a presumption of title because the area qualifies as inland water, and is all less than 3 miles from the coastline. For the United States to win title it must have both set aside the lands (ie: as a refuge). By a series of Presidential orders, the Glacier Bay National Monument had already existed for 34 years as a federal reservation by the time Alaska achieved statehood in 1959, which the Court finds included submerged lands. Finally, because of provisions in the Alaska Statehood Act, the court found that the U.S. government “‘definitely declared or otherwise made very plain’ ” its intent to defeat Alaska’s title to these submerged lands," and that, any ambiguity in this article itself aside, what assertions are made are sufficient to demonstrate Congress' intent, which is all that is necessary.

The dissent argues that the proviso in the ASA is not "plain" or "clear" enough to sustain the Government's argument. I'm not going to go into great detail on this case, I simply don't have enough footing in State v. U.S. disputes to do it justice. Click on the link to the opinion at the top to see some cool pictures of what is in dispute at the bottom of the document.

Can Congress Regulate Medical Marijuana Under the Commerce Clause?

Gonzales v. Raich

(I know this is longer than usual, but I am particularly interested because of long debates my class had about Wickard v. Filburn)

The federal Controlled Substances Act places drugs into 5 classes, the first of which contains drugs that have no accepted medical purpose, and includes marijuana. This law was enacted under Congress’ enumerated power to control interstate commerce, in that the objective of the law was to control the commerce of drugs. California’s Compassionate Use Act allowed for those patients with severe illnesses, and prescriptions from their doctors, to be exempted from prosecution for drug possession. In this case, the Court considers whether the CSA is valid under the Constitution. It should also be noted that for the sake of argument here, the plants in question were at not time sold; the person growing them gave them away to people who qualified, so as to avoid economic entanglement.

The appellate court found that personal use of marijuana was distinct from the larger economic trade in marijuana, and thus, to the extent it was “not intended for, nor [did] it enter, the stream of commerce,” it was not subject to Congress’ regulation under the Commerce Clause. The two recent cases that the courts use as precedents here are U.S. v. Lopez, which found that the Gun-Free School Zones Act was unconstitutional because it did not apply to interstate economic activity in any way; and U.S. v. Morrison, the Court found that the Violence Against Women Act was unconstitutional because the link between gender motivated violence and interstate commerce was too tenuous. The Court also addressed an old case, Wickard v. Filburn, one of the most derided decisions the Court ever turned out. In this case, the Court upheld a law capping the amount of wheat a farmer could grow, even where the excess was purportedly used for personal consumption (the law did however allow for a substantial amount to be grown in excess of the cap for personal consumption). In Wickard the Court found that Congress had the authority “to regulate purely local activities that are part of an eco­nomic “class of activities” that have a substantial effect on interstate commerce.”

In response to the arguments that this case differs from Wickard because (1) the law in Wickard exempted small farming operations; (2) Wickard involved “quintessential economic activity;” and (3) the Wickard record made it clear that the aggregate production of wheat for use on farms had a significant impact on market prices, the majority states that these differences do not negate the force that case carries as a precedent regarding Congress’ power.

Here the majority argues that if this aspect of marijuana cultivation is beyond Congress’ control, so is any recreational use and that even if it is true that marijuana has a legitimate medical use, the CSA would still legitimately impose controls on it. The majority also rejects the assertion that California isolated this particular use of marijuana and chose to police it itself, because it is “dubious” to state that this use of marijuana “is hermetically sealed off from the larger interstate marijuana market.” The majority does suggest that an argument based on Due Process could succeed, but do not address it because the lower court did not. Ultimately the Court recommends for those patients that require marijuana for medical purposes to employ the democratic process to have marijuana reclassified under the CSA.

Justice Scalia’s concurring opinion, among other things, argues that the part of the Constitution empowering Congress to enact those laws which are “necessary and proper” to carry out its enumerated powers “empowers Congress to enact laws in effectuation of its enumerated powers that are not within its authority to enact in isolation.”

The dissent (by Justice O’Connor, and for Chief Justice Rehnquist and Justice Thomas) argues “medical and nonmedical (i.e., recreational) uses of drugs are realistically distinct and can be segregated, and regulate them differently.” The dissent goes on to point out, merely in order to distinguish Wickard as a precedent, that the exemptions in the agricultural act in Wickard meant that Congress was not regulating modest cultivations such as the few individual plants that medical users grow, comparing this cultivation to “the home cook’s herb garden.” The dissent also argues that in that case Congress had made its argument that the activity was economically related, whereas in this case there is only the assertion that the activity is so related, and that as long as an assertion is all that is necessary, “the Necessary and Proper Clause will always be a back door for unconstitutional federal regula­tion.”

Justice Thomas’ dissent additionally argues that “even assuming the CSA’s ban on locally cultivated and consumed marijuana is ‘necessary,’ that does not mean it is also ‘proper,’” and that whatever means Congress decides to use in its regulation must be within the spirit of the Constitution. Justice Thomas also argues, as does Justice O’Connor, that this reading of the Commerce Clause, in relation to Lopez, would allow Congress to regulate through broadly packaged legislation targeting legitimate economic concerns, in ways that it could not regulate individually.

Is an Injunction Proper in a Celebrity’s Defamation Case?

Tory v. Cochran

Tory had picketed outside of Johnny Cochran’s house, sent him threatening letters, and generally harassed Cochran in order to coerce $10 million from him. A court granted a permanent injunction against Tory doing any of these things. The case was taken up by the Supreme Court to determine if a permanent injunction against speaking about a public figure is proper. It is nearly impossible for public figures to win defamation cases because defamation is something that comes with the territory, which you accept when you decide to become a public figure.

Then Cochran died. The Court decided that because of the way California law works, the injunction is still in effect, and is so until a judge revokes it. The Court then decided it would be proper to substitute his wife in his place. In this case, since Cochran is dead, and cannot be coerced, the majority held that the injunction amounted to “prior restraint” (the worst kind of First Amendment violation). The dissent stated that certiorari should be revoked and the lower courts should sort it out.

The First Amendment: How to Have Your Cake and Eat it Too

Cutter v. Wilkinson

“Section 3 of the Religious Land Use and Institutional­ized Persons Act of 2000 (RLUIPA), provides in part: ‘No gov­ernment shall impose a substantial burden on the reli­gious exercise of a person residing in or confined to an institution,’ unless the burden furthers ‘a compelling governmental interest,’ and does so by ‘the least restric­tive means.’” Some inmates who feel that a burden has been placed on them because of their “non-mainstream” religious views are suing the prison system. The prison system counters that this provision violates the First Amendment by forcing preferential treatment to be given to religious inmates in violation of the Supreme Court’s Lemon test (Lemon v. Kurtzman prohibited "excessive entanglement" with religion by the government, and required that the statute in question neither advance nor inhibit religion).

The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” It is easy to see how these two propositions can be found to be in disagreement, and the tests created by the Supreme Court have attempted to find the middle ground between them. In this case the question is whether the requirement in RLUIPA, and other acts like it, are necessarily invalid in the face of the First Amendment. Because the prison system did not raise any specifically unconstitutional situations, the Court decided that the act is not necessarily unconstitutional. Rather, the Court held that it can be enforced without harming the prison system (since it allows the government to protect its compelling interests), and without granting preferential treatment to specific religion. This is not to say that unconstitutional situations could arise from the enforcement of the law which the Court would strike down, but only to say that the law itself is valid.

Interestingly, Justice Thomas writes his own concurring opinion, explaining why the act is constitutional from a federalist viewpoint. Thomas argues that the act is constitutional because, even insofar as it may respect religion, it does not respect the establishment of religion. While I understand the significance of the difference between "the establishment" and "an establishment," I have always wanted to find some authoritative document to indicate that the word "establishment" in “an establishment of religion” is meant as a verb rather than a noun, but I have not. It is, however, generally accepted (at least from a federalist standpoint) that “establishment” is in fact meant as a verb.

Arthur Anderson is NOT Vindicated, the Judge Just Goofed

Arthur Andersen LLP v. United States

This was not a case about whether the executives at Enron are scumbags, or whether they violated the law generally. This case was specifically about Enron’s destruction of documents before it was informed of proceedings against it. Enron’s lawyer kept telling Enron to follow its document retention policy, a statement that became a mantra in the weeks preceding the official investigation. Enron’s document retention policy included statements that “in cases of threatened litigation, . . . no related information will be destroyed,” and that if Enron was “advised of litigation or subpoenas regarding a particular engagement, the related information should not be destroyed.”

The instructions to the jury about the law of obstruction of justice were that “if it found [that Enron] intended to ‘subvert, un­dermine, or impede’ governmental factfinding by suggest­ing to its employees that they enforce the document reten­tion policy,” Enron could be found guilty. The law itself is that:

“Whoever knowingly uses intimidation or physical force, threatens, or corruptly persuades another per­son, or attempts to do so, or engages in misleading conduct toward another person, with intent to . . . cause or induce any person to . . . withhold testimony, or withhold a record, document, or other object, from an official proceeding [or] alter, destroy, mutilate, or conceal an object with intent to impair the object’s in­tegrity or availability for use in an official proceed­ing . . . shall be fined under this title or imprisoned not more than ten years, or both.”

The Court found that these instructions were misleading, specifically because they did not require the jury to find that there was any dishonesty, or any connection between the persuasion and the particular proceeding against Enron.

It seems though that the executives at Enron and Arthur Anderson were either stupid, colossally arrogant, or they wanted to get into trouble. I’ll leave you with this story from a footnote of the opinion.

“On October 31, David Stulb, a foren­sics investigator for petitioner, met with Duncan. During the meeting, Duncan picked up a document with the words “smoking gun” written on it and began to destroy it, adding “we don’t need this.” Ibid. Stulb cautioned Duncan on the need to maintain documents and later in­formed Temple that Duncan needed advice on the document retention policy.”