Archive for the ‘Government Action’ Category

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WHAT HAPPENED: Tam is a member of THE SLANTS, an Asian-American rock band who sound like your friend’s band who you always get invited to see live but never want to see live because they are not very good.  Tam sought to trademark the band’s name, but was denied by the U.S. Patent and Trade Office (“the PTO”) for being an antiquated racial slur.

WHY IS THIS BEFORE THE SUPREME COURT:  The PTO has a policy in place that denies trademark protection for offensive words, which is the basis under which the PTO denied Tam’s request.  The issue in this case is not whether the term THE SLANTS is offensive, but more broadly whether or not the PTO can constitutionally ban trademark terms based on their subjective standard for obscenity.  The lower court ruled in favor of THE SLANTS and held that the PTO’s policy is void as a matter of law.

WHAT ARE THE RAMIFICATIONS – It may seem obnoxious to point out that this only benefits rock bands with offensive names, but it is worth noting that there are more offensive band names than you may realize.  I have a friend who works for a very popular death metal record label, and his email signature would promote bands like DYING FETUS and album names like SULFUR AND SEMEN, so if you’re a hairy, stocky white dude who claims to worship Satan, this case could be for your benefit.  More generally, this case speaks to what the First Amendment actually gives you from the government.  On one hand, this is a government agency who is censoring private speech,; but more specifically, the government is not imprisoning THE SLANTS, but just not granting them additional commercial protection, which is an important distinction.  Most likely, that will be what this case turns on.

ROOT FOR LEE IF:  you don’t need to curse in your albums to sell records.

ROOT FOR TAM IF: you do, so f*** Will Smith, and f*** you too.

PREDICTION:  Tam 5-3

 

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WHAT HAPPENED: The Plaintiffs are the parents of a Mexican teenager who was shot by a U.S. border guard standing on U.S. soil.  Plaintiffs are suing the Defendant (the guard) for Constitutional claims related to the shooting.

WHY IS THIS BEFORE THE SUPREME COURT:  Plaintiffs filed their lawsuit in the United States, and the Defendant has taken every action imaginable to dismiss the case, including arguing that the jurisdiction is wrong for a 4th amendment claim, that the Bivens analysis is incorrect, and that Defendant is immune because there is no precedent saying you can’t shoot non-citizens across the border (which is factually right, but it’s not like shooting people is ever OK).  Defendant has won at the lower level, so the case was dismissed.

WHAT ARE THE RAMIFICATIONS – There is a legal axiom that says “bad cases make bad law”.  While it is easy to look at this case and say “you shouldn’t people” (which is most of the Plaintiff’s arguments), if you stretch the borders and the rules for this case, you end up complicating other issues where a strict application of border lines and qualified immunity make sense.  The balance here is whether it is better for the Court to try to craft a rule that best resolves this question, or whether it is better to just make an unfair ruling in this case and keep the rules as is.  Adding complication to this case is the fact that an amicus brief from Border Guards have advocated for liability in this case, as the dangerous environment surrounding the border needs more civil liability to keep things under control.  Not to say that is going to sway things, but it adds context to where the situation is and why the Plaintiffs’ arguments make more sense the more you hear about facts of the case.

ROOT FOR HERNANDEZ IF: shooting people isn’t OK.

ROOT FOR MESA IF: shooting people is OK if you have a bunch of dumb rules in place to protect you.

PREDICTION:  Mesa 6-2

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WHAT HAPPENED: The Appellants were convicted of criminal charges and paid fines.  Appellants subsequently won their appeal and their convictions were overturned.  Appellant asked for their fees back, but Colorado said they had to go to civil court and prove their innocence by clear and convincing evidence to get their money back.

Wait…..

(reads facts again)

HAHAHA that’s so stupid.  OK sure let’s do this.

WHY IS THIS BEFORE THE SUPREME COURT:  Colorado argues that once the fines are paid into the Court system, the money becomes the ownership of the State and that it’s the Defendant’s burden to prove that they can get it back.

(reads appellate brief again)

HAHAHAHA seriously Colorado maybe it’s time to ban weed again.

WHAT ARE THE RAMIFICATIONS – Ok, seriously this time.  You could argue that this case represents the Court stepping on State’s rights because if Colorado wants to have a stupid rule about keeping your fines, they should be allowed to do whatever they want.  That being said, this clearly violates procedural due process, probably violates substantive due process, and could colorably be classified as a government taking without due process.  Luckily we don’t have anyone from Colorado joining significant parts of the Federal judiciary with life tenure anytime soon.

(reads news)

HAHAHAHAHAHA, never change Colorado.

ROOT FOR NELSON IF: you’re not the one person whose salary is paid by defendants who are motivated enough to appeal their criminal convictions, but not motivated enough to file for the fees returned.

ROOT FOR COLORADO IF: you are Colorado

PREDICTION:  Nelson 6-2 (Alito/Thomas special).

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WHAT HAPPENED: Appellant is an indigent defendant who was convicted of first degree murder.  Appellant sought medical expert to assist with his sentencing and was provided with an expert by the State.  Following some kind of calamity involving timing and delivering the report, Appellant was sentenced to death (by electrocution because this was in 1984).

WHY IS THIS BEFORE THE SUPREME COURT:  In the 1970s, the Supreme Court (by way of Thurgood Marshall) held that indigent defendants were entitled to medical experts to assist with the insanity defense.  The Court held that the cost to the State was nominal compared to the benefit it would provide in ensuring that justice was served.  This case takes that holding one step further, and asks that not only does the State have to provide a medical expert, but also has to provide someone who is completely independent from the State as to reduce bias.

WHAT ARE THE RAMIFICATIONS – This is either (1) a dollars and cents issue, or (2) another way that the Court could create more ways that people on death row can overturn their sentences.  One on hand, hiring an independent expert would cost more, but once again you would have to wonder how much it would really be in light of the purpose behind providing the expert.  If you also believe that experts are mostly just mercenaries who say whatever they are paid to say, the benefit here is pretty high.  On the other hand, a ruling in favor of the Defendant is a pretty far stretch from the original Court’s holding, and finding that an independent expert has been required since 1984 would open the door for past death row inmates to contest their sentences, which would in turn bring more old death row cases before the Court, which would in turn make Clarence Thomas freak out.

ROOT FOR MCWILLIAMS IF: you want to see Clarence Thomas freak out.

ROOT FOR DUNN IF: you think poor Clarence Thomas has been through enough.

PREDICTION:  Dunn 6-2

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WHAT HAPPENED:  SW General lost a case before the National Labor Relations Board, and instead of appealing (you know) the merits  of the case, SW General argued that the head attorney was appointed by President Obama unlawfully under the Federal Vacancies Reform Act.

WHY IS THIS BEFORE THE SUPREME COURT:  The Federal Vacancies Reform Act was intended as a way for the President to fill agency positions when Congress was being either (1) lazy or (2) assholes.  The FVRA states that the President can bypass Congress on appointments when the new appointee is the first assistant, or when the new appointee is a senior official within that agency.  The question for this case is whether or not the second half of that clause requires that the person to serve in the position ninety days before appointments, or if the ninety day waiting period only applies to first assistants.  SW General argues that it does apply, thus blocking Obama’s appointment to the NLRB, whereas the NLRB argues that it does not apply and the appointment was valid exercise of executive power.

WHAT ARE THE RAMIFICATIONS –  This case seems relevant to a much larger point about today’s government; however, this case will likely not have the effect that it could or should.  We are certainly having a moment right now where our government seems to be prioritizing grudges and power-grabs over actually doing their job and running the government.  This case is a great example of how political moves can cloud the proper and efficient organization of a government agency.  That being said, the FVRA doesn’t deal with Supreme Court justices, or executive orders, or health care, or impeachment proceedings, so all the things that you want this to resolve, it probably won’t.  The only interesting point here could be within the text of the opinion, as you can’t put it past the Court to include their own opinions within their decisions, either subtly or not-so subtly.  For example, a few months prior to the Obgefell v. Hodges decision which required universal recognition of same-sex marriage, the Supreme Court fought intensely about the due process right to get married in the case of Kerry v. Din.  The subtext of that case maybe wasn’t as clear at the time, but in hindsight, you can see an underlying subtext in the decision through the scope of something totally different.  Considering the Court is being treated like a 10 year-old at a child custody hearing, it wouldn’t be all the surprising to get some kind of temper tantrum.

ROOT FOR NLRB IF:  you hate the government right now.

ROOT FOR SW GENERAL IF:  you hated the government four months ago, but now things are pretty sweet.

PREDICTION:  SW General 5-3

WHAT HAPPENED:  SW General lost a case before the National Labor Relations Board, and instead of appealing (you know) the merits  of the case, SW General argued that the head attorney was appointed by President Obama unlawfully under the Federal Vacancies Reform Act.

WHY IS THIS BEFORE THE SUPREME COURT:  The Federal Vacancies Reform Act was intended as a way for the President to fill agency positions when Congress was being either (1) lazy or (2) assholes.  The FVRA states that the President can bypass Congress on appointments when the new appointee is the first assistant, or when the new appointee is a senior official within that agency.  The question for this case is whether or not the second half of that clause requires that the person to serve in the position ninety days before appointments, or if the ninety day waiting period only applies to first assistants.  SW General argues that it does apply, thus blocking Obamas appoint to the NLRB, whereas the NLRB argues that it does not apply and the appointment was valid exercise of executive power.

WHAT ARE THE RAMIFICATIONS –  This case seems relevant to a much larger point about today’s government; however, this case will likely not have the effect that it could or should.  We are certainly having a moment right now where our government seems to be prioritizing grudges and power-grabs over actually doing their job and running the government.  This case is a great example of how political moves can cloud the proper and efficient organization of a government agency.  That being said, the FVRA doesn’t deal with Supreme Court justices, or executive orders, or health care, or impeachment proceedings, so all the things that you want this to resolve, it probably won’t.  The only interesting point here could be within the text of the opinion, as you can’t put it past the Court to include their own opinions within their decisions, either subtly or not-so subtly.  For example, a few months prior to the Obgefell v. Hodges decision which required universal recognition of same-sex marriage, the Supreme Court fought intensely about the due process right to get married in the case of Kerry v. Din.  The subtext of that case maybe wasn’t as clear at the time, but in hindsight, you can see an underlying subtext in the decision through the scope of something totally different.  Considering the Court is being treated like a 10 year-old at a child custody hearing, it wouldn’t be all the surprising to get some kind of temper tantrum.

ROOT FOR NLRB IF:  you hate the government right now.

ROOT FOR SW GENERAL IF:  you hated the government four months ago, but now things are pretty sweet.

PREDICTION:  SW General 5-3

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WHAT HAPPENED:  Plaintiffs were detained at Guantanamo Bay following the September 11th terrorist attacks.  Plaintiffs assert that they were detained illegally and without sufficient evidence warranting their detention, and are suing the government officials they believe are responsible for their detention.

WHY IS THIS BEFORE THE SUPREME COURT:  Well, for starters, the detention of enemy combatants at Guantanamo Bay was a clusterfuck from the beginning.  In the years that followed 2001, George Bush and friends were routinely in front of the Supreme Court trying to justify detaining suspected terrorists without Due Process.  In every case, the Supreme Court found in favor of the detainees, stating that the foreign terrorists are not entitled to the full Due Process protections entitled to citizens, but they are entitled to something.  This case takes a different angle than those cases, as these Plaintiffs are not seeking criminal constitutional rights, but are instead looking for civil damages as a result of those actions, as the Plaintiffs argue that the government officials in question knew what they were doing was wrong and detained the Plaintiffs anyway.

WHAT ARE THE RAMIFICATIONS – Suing the government is tough sledding, because the deck is stacked against you in the form of qualified and sovereign immunity.  In all cases, the government cannot be sued unless it consents to be sued, and as you can imagine, the government does not like to be sued that often.  For these defendants to be found civilly liable for their actions, the Plaintiffs have to prove a fairly high burden of showing that the Defendants knowingly violated their Constitutional rights and that the general rules relating to false arrest and imprisonment should apply to this fairly unique situation.  Should the Plaintiffs’ claims succeed, it could open the door for similar lawsuits against high government officials related to the War on Terror, or HYPOTHETICALLY, a certain order by the President that knowingly bent Constitutional rights and inconvenienced a large group of foreign citizens in the name of protecting Americans from terrorists.

ROOT FOR ASHCROFT IF:  you’re down with early 2000s nostalgia, like Brittany Spears, foam mesh trucker hats, and widespread paranoia about Middle East terrorism.

ROOT FOR ABASI IF:  you watched that one episode of Last Week Tonight with John Oliver about Guantanamo Bay and now you feel like an expert.

PREDICTION:  Ashcroft 4-2 (Kagan and Sotomayor are recused)

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WHAT HAPPENED:  A Virginia School District made a rule that infringed upon a transgender student’s ability to choose which bathroom to use.  The student filed suit and lost at the original level.  The Federal Government (by way of the Dept. of Education) stepped in and stated that this action violated Title IX, which was the basis for the Fourth Circuit’s reversal of the lower decision in favor of the student.  In other words, the student is currently winning based on the opinion by the Department of Education.

WHY IS THIS BEFORE THE SUPREME COURT:  For one, it’s not the reason you think it is.  While there are certainly Equal Protection issues, Substantive Due Process issues, and general Constitutional concerns, this issue comes down to agency law; and specifically whether the Department of Education had the authority to issue an opinion based on Title IX, and whether the Fourth Circuit should have followed that opinion.

WHAT ARE THE RAMIFICATIONS:  For one, it’s not as significant as you might think.  While a ruling in favor of G.G. would give more power to trans students in an educational setting, there are probably very little ramifications outside of this specific context.  The issue in this case is limited to the value of the Department of Education’s opinion, so affirming that opinion would likely just benefit this student.  Similarly, a ruling against G.G. would likely just state that the grounds for the decision were wrong and that the Court has to review the findings again fresh.  To whatever extent this makes you feel better, a ruling against G.G. is not the end of the world, as the Court could still rule in favor of the student, just on different grounds.   Ultimately, the ramifications of this ruling are very limited to the problem at hand, even though the circumstances are a hot button issue.

ROOT FOR GLOUCHESTER COUNTY IF: (and only if) if you do not agree with the Department of Education’s interpretation of Title IX and the 4th Circuit Court of Appeals’ reliance on that opinion.

ROOT FOR G.G. IF: (and only if) you do agree with the Department of Education’s interpretation of Title IX and the 4th Circuit Court of Appeals’ reliance on that opinion.

PREDICTION:  4-4 push.

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You’ve probably seen this elsewhere, but I wanted to link the beautiful letter the MO PD sent to the Governor (pdf warning). Now, let’s move on to how the governor could get out of doing the job, because he will. As the letter plainly states, the PD’s office has the legal power to appoint any attorney with a current bar license. There’s no conflict of interest, because the prosecutor is an independently elected office in the great state of Missouri. Maybe the governor can get out it by suspending his bar membership? Well, all my dreams will come true if he takes the case to trial, loses, and then pardons his client.

Hat tip to Nick for highlighting the article on buzzfeed.

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Use of plastic bags has decreased by almost 90% in England since the introduction of a 5 penny charge per plastic bag. I love this example of regulation because it shows how just a tiny nudge can remind people to do the right thing by recycling old plastic bags or using long-term bags for groceries. I complain about poor lawmaking so often that I thought I should spotlight moments like this.

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It’s noteworthy that not one but two women have been billed for their cavity searches courtesy of the white-gloved Customs and Border Protection. Do you think it’s noteworthy that said cavity searches didn’t yield any of the illegal drugs they were supposed to yield? Can it be said that the bill was for wasting the CBP’s time? I mean, if you’re going to subject yourself to a cavity search, the least you could do is put some illegal drugs in there beforehand. No?

Filed under “Government Action.” A fuller story at Above the Law Lowering the Bar.