Category: 3-LawSometimeCommentary

On March 21, 2017, the Supreme Court heard oral argument in Microsoft Corp. v. Baker. Plaintiffs brought a class action lawsuit against Microsoft Corporation (Microsoft) alleging that, during gameplay on the Xbox 360 video game console, discs would come loose and get scratched by the internal components of the console, sustaining damage that then rendered them unplayable. The district court, deferring to an earlier denial of class certification entered by another district court dealing with a similar putative class, entered a stipulated dismissal and order striking class allegations. Despite the dismissal being the product of a stipulation--that is, an agreement by the parties--the U.S. Court of Appeals for the Ninth Circuit determined that the parties remained sufficiently adverse for the dismissal to constitute a final appealable order. The Ninth Circuit, therefore, concluded it had appellate jurisdiction over the case. Reaching the merits, that Court held that the district court had abused its discretion, and therefore reversed the stipulated dismissal and order striking class allegations, and remanded the case. -- The question now before the Supreme Court is 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. -- To discuss the case, we have Cory L. Andrews, who is Senior Litigation Counsel for Washington Legal Foundation.

On March 21, 2017, the Supreme Court heard oral argument in Impression Products, Inc. v. Lexmark International, Inc. Lexmark International, Inc. (Lexmark), which owns many patents for its printer toner cartridges, allows customers to buy its cartridges through a “Return Program,” which is administered under a combination single-use patent and contract license. Customers purchasing cartridges through the Return Program are given a discount in exchange for agreeing to use each cartridge once before returning it to Lexmark. All of the domestically-sold cartridges at issue here and some of those sold abroad were subject to the Return Program. Impression Products, Inc. (Impression) acquired some Lexmark cartridges abroad--after a third party physically changed the cartridges to enable their re-use--in order to resell them in the United States. Lexmark then sued, alleging that Impression had infringed on Lexmark’s patents because Impression acted without authorization from Lexmark to resell and reuse the cartridges. Impression contended that its resale of the cartridges was not an infringement because Lexmark, in transferring the title by selling the cartridges initially, granted the requisite authority. The district court granted Impression’s motion to dismiss as it related to the domestically sold cartridges but denied it as to the foreign-sold cartridges. The U.S. Court of Appeals for the Federal Circuit reversed the district court’s judgment as to the domestically sold cartridges but affirmed dismissal regarding the cartridges sold abroad. -- There are two questions now before the Supreme Court: (1) whether a “conditional sale” that transfers title to the patented item while specifying post-sale restrictions on the article's use or resale avoids application of the patent-exhaustion doctrine and therefore permits the enforcement of such post-sale restrictions through the patent law’s infringement remedy; and (2) whether, in light of this court’s holding in Kirtsaeng v. John Wiley & Sons, Inc. that the common-law doctrine barring restraints on alienation that is the basis of exhaustion doctrine “makes no geographical distinctions,” a sale of a patented article – authorized by the U.S. patentee – that takes place outside the United States exhausts the U.S. patent rights in that article. -- To discuss the case, we have David S. Olson, who is Associate Professor of Law at Boston College Law School.

On March 20, 2017, the Supreme Court heard oral argument in Murr v. Wisconsin. In 1960 and 1963, the Murrs purchased two adjacent lots (Lots F and E), each over an acre in size, in St. Croix County, Wisconsin. In 1994 and 1995, the parents transferred the parcels to their children. In 1995, the two lots were merged pursuant to St. Croix County’s code of ordinances. Seven years later, the Murrs wanted to sell Lot E but not Lot F, but they were denied permission to do so by the St. Croix County Board of Adjustment. The Murrs sued the state and county, claiming that the ordinance in question resulted in an uncompensated taking of their property and deprived them of “all, or practically all, of the use of Lot E because the lot cannot be sold or developed as a separate lot.” The circuit court granted summary judgment to the state and county. The Court of Appeals of Wisconsin affirmed, and the Wisconsin Supreme Court denied further review. -- The question before the Supreme Court is whether, in a regulatory taking case, the “parcel as a whole” concept as described in Penn Central Transportation Company v. City of New York, establishes a rule that two legally distinct but commonly owned contiguous parcels must be combined for takings analysis purposes. -- To discuss the case, we have James S. Burling, who is Director of Litigation, Pacific Legal Foundation.

On March 6, 2017, the Supreme Court decided Pena-Rodriguez v. Colorado. Miguel Angel Pena-Rodriguez was convicted of unlawful sexual conduct and harassment in state trial court. Two jurors later informed Pena-Rodriguez’s counsel that another juror made racially-biased statements about Pena-Rodriguez and an alibi witness during jury deliberations. The trial court authorized counsel to contact the two jurors for their affidavits detailing what the allegedly biased juror had said. Pena-Rodriguez moved for a new trial after learning from the affidavits that the juror had suggested Pena-Rodriguez was guilty because he was Hispanic (and this juror considered Hispanic males to be sexually aggressive toward females). According to the affidavits, the juror also deemed the alibi witness not credible because, among other things, that witness was “an illegal.” The trial court denied the motion and a divided Supreme Court of Colorado ultimately affirmed, applying Colorado Rule of Evidence 606(b)--which prohibits juror testimony on any matter occurring during the jury deliberations--and finding that none of the exceptions to the rule applied. In the dissenters’ view, however, Rule 606(b) should have yielded to “the defendant’s constitutional right to an impartial jury.” -- The question before the U.S. Supreme Court was whether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury. -- By a vote of 5-3, the U.S. Supreme Court reversed the judgment of the Supreme Court of Colorado and remanded the case. Justice Kennedy delivered the opinion of the Court, while held that when a juror makes a clear statement indicating that he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror's statement and any resulting denial of the jury trial guarantee. Justice Kennedy’s majority opinion was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Thomas filed a dissenting opinion. Justice Alito filed a dissenting opinion, in which Chief Justice Roberts and Justice Thomas joined. -- To discuss the case, we have John C. Richter, who is Partner at King & Spalding.

Today's episode is part one of a two-part series in which Thomas and Andrew walk through the short-lived history of the USFL, an alternative football league that ran into the bulldozer that is Donald J. Trump.  Along the way, we learn about jury nullification, antitrust law, and get some insight into Trump's legal strategies that just might have some relevance today.... First, though, "Breakin' Down the Law" defines "jury nullification" in order to get you prepared to tackle our main story.  Afterwards, we answer a question from listener Collin Boots, who wants to know why Andrew was so dismissive of term limits back in Episode 54. Finally, we end with the answer to Thomas Takes the Bar Exam Question #17 about selling a lemon of a used car in "as is" condition. Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show.  Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: Andrew just recorded a delightful and moderate discussion of the law of God's Not Dead 2 with the hosts of the "Is This Reel Life?" podcast. Show Notes & Links

1. This is the AmLaw article Andrew mentions in which lawyers second-guessed Donald Trump's choice of litigation tactics way back in 2009.
2. And here is a link to U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), in which the Court struck down state efforts to limit Congressional and Senate terms.

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In 1985, eight men were convicted of the grisly murder of a Washington D.C. woman. After spending decades in prison, they learned from an article in the Washington Post that prosecutors had withheld evidence from trial that could have exculpated them. This week, the Supreme Court delved back into the details of the 30-plus year old murder case and considered whether the case should be reopened. Former defense lawyer Thomas Dybdahl is writing a book about the murder and its aftermath, and joins us to discuss Turner v. USand Overton v. US.

We also speak with legal scholar Lori Ringhand, who literally wrote the book on Supreme Court confirmation hearings. She reflects on some of the ways the process has evolved over the years, whether the so-called “Ginsburg rule” is appropriately named, and what purpose these hearings actually serve. 

Transcripts of Amicus are available to Slate Plus members, several days after each episode posts. For a limited time, get 90 days of free access to Slate Plus in the new Slate iOS app. Download it today at slate.com/app.

Please let us know what you think of Amicus. Join the discussion of this episode on Facebook. Our email is amicus@slate.com. 

Podcast production by Tony Field. Our intern is Camille Mott. 

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In today's episode, we look at a recent Supreme Court decision that could have wide-ranging effects on future trials. We begin, however, by "Breakin' Down the Law" regarding House Intelligence Chairman Devin Nunes.  Did he just violate the law Republicans kept trying to insist applied to Hillary Clinton's emails?  (Yes.) In our main segment, we delve into a recent Supreme Court decision, Pena-Rodriguez v. Colorado, in which the Court held that a defendant's Sixth Amendment right to a fair trial means that jurors must be free to report blatant racial bias in otherwise-private jury deliberations, even if the law says otherwise.  How the Court came down on this issue is also reflective of the split on the Supreme Court between the originalist justices and the mainstream ones. Next, long-time friend of the show Eric Brewer returns with a question about felon voting rights. Finally, we end with a brand new Thomas Takes the Bar Exam question #17 that asks about the common law behind "as is" used cars.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show.  Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: Andrew and Thomas were guests on Eiynah's podcast, Polite Conversations, Panel Discussion #6 talking about liberals vs. conservatives on free speech.  Give it a listen! Show Notes & Links

1. Here's the story on Devin Nunes's disclosures of confidential intelligence briefings to the press and to White House flacks.
2. And this is the text of 18 U.S.C. § 793(f)(1), which is indeed the same statute Republicans sought to use against Hillary Clinton.  This counts as irony, right?
3. And finally, this is the Supreme Court's decision in Pena-Rodriguez v. Colorado.

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On February 27, 2017, the Supreme Court heard oral argument in Packingham v. North Carolina. Lester Packingham was convicted in 2002 of taking “indecent liberties” with a minor in violation of North Carolina law, and sentenced to prison time followed by supervised release. In 2010, he was arrested after authorities came across a post on his Facebook profile--which he had set up using an alias--in which he thanked God for having a parking ticket dismissed. Packingham was charged with, and convicted of, violating a North Carolina law that restricted the access of convicted sex offenders to “commercial social networking” websites. -- Packingham challenged his conviction on First Amendment grounds, arguing that the North Carolina statute unlawfully restricted his freedom of speech and association, but the Supreme Court of North Carolina ultimately rejected his claim. The website access restriction, the Court concluded, was a content-neutral, conduct-based regulation that only incidentally burdened Packingham’s speech, was narrowly tailored to serve a substantial governmental interest, and left open ample alternative channels of communication. -- The question before the U.S. Supreme Court is whether, under the Court’s First Amendment precedents, a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a website that enables communication, expression, and the exchange of information among users--if the site is “know[n]” to allow minors to have accounts--is permissible on its face and as applied to Packingham. -- To discuss the case, we have Ilya Shapiro, who is Senior Fellow in Constitutional Studies at the Cato Institute.

On February 21, 2017, the Supreme Court heard oral argument in McLane Co. v. EEOC. Damiana Ochoa worked for McLane Company, a supply chain company. After returning from maternity leave, Ochoa was required to take a “physical abilities” test, which she failed three times. Ochoa was fired by McLane but then filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that McLane violated Title VII of the Civil Rights Act of 1964. The EEOC opened up an investigation and issued a subpoena for information McLane withheld, including either “pedigree information” for each test-taker or reasons the test-taker’s employment was terminated. When McLane refused, EEOC filed a subpoena enforcement action. The district court granted enforcement of the subpoena with respect to some information (such as the gender and score of each test taker) but declined to require the production of pedigree information or the reasons why others who had failed the test were terminated. The U.S. Court of Appeals for the Ninth Circuit, reviewing the district court’s decision “de novo,” held that the district court had erred in refusing to compel production of the pedigree information, and also needed to consider whether production of the reasons for other terminations would be unduly burdensome. -- The question before the U.S. Supreme Court is whether a district court’s decision to quash or enforce an EEOC subpoena should be reviewed de novo, which only the Ninth Circuit does, or should be reviewed deferentially, which eight other circuits do. -- To discuss the case, we have Karen Harned, who is Executive Director of the National Federation of Independent Business Small Business Legal Center.

On February 21, 2017, the Supreme Court heard oral argument in Hernandez v. Mesa. In 2010, Sergio Adrian Hernandez Guereca, a fifteen-year-old Mexican national, died after being shot near the border between El Paso, Texas and Juarez, Mexico by Jesus Mesa, Jr., a U.S. Border Patrol Agent. Hernandez’s parents, who contend that their son was on Mexican soil at the time of the shooting, sued Mesa in federal district court in Texas, alleging violations of the Fourth and Fifth Amendments. After hearing the case en banc, the U.S. Court of Appeals for the Fifth Circuit ultimately ruled in favor of Mesa, concluding that Hernandez could not assert a Fourth Amendment claim and that Mesa was entitled to qualified immunity on the parents’ Fifth Amendment claim. -- There are three questions now before the Supreme Court: (1) whether a formalist or functionalist analysis governs the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States; (2) whether qualified immunity may be granted or denied based on facts – such as the victim’s legal status – unknown to the officer at the time of the incident; and (3) whether the claim in this case may be asserted under Bivens v. Six Unknown Federal Narcotics Agents. -- To discuss the case, we have Steven Giaier, who is Senior Counsel for the House Committee on Homeland Security.