Treasury Inspector General for Tax Administration – The Number of Employment-Related Identity Theft Victims Is Significantly Greater Than Identified, June 20, 2017, Reference Number: 2017-40-031.”Employment-related identity theft (hereafter referred to as employment identity theft) occurs when an identity thief uses another person’s identity to gain employment. Taxpayers may first realize they are a victim when they receive an IRS notice of a discrepancy in the income they reported on their tax return. Each year, the IRS receives about 2.4 million tax returns filed using an Individual Taxpayer Identification Number (ITIN) with reported wages, an indicator of potential identity theft.”
“This is the single greatest witch hunt in Scotland’s history,” declared Deanne Maynard, counsel for the Weird Sisters. So began an evening of jokes perhaps best appreciated by a Washington, D.C., audience. Maynard battled former solicitor general Don Verrilli in the case of The Weird Sisters v. Kingdom of Scotland, based on Shakespeare’s “Macbeth.” The Sisters were challenging their death sentences for their alleged role in Macbeth’s murder of King Duncan before U.S. Supreme Court Justices Ruth Bader Ginsburg and Stephen Breyer and Judges Sri Srinivasan, David Tatel and Patricia Millett of the U.S. Court of Appeals for the District of Columbia Circuit.
In the lower court, the Sisters had been found guilty of both using witchcraft to solicit Duncan’s murder and aiding and abetting Macbeth in his commission of the crime. Addressing the first accusation, Maynard argued that the Sisters’ prophesying activity was protected by the First Amendment. (11th century Scottish law here looks remarkably similar to that of the 21st century United States.) Maynard proceeded to point to the role Lady Macbeth (“such a nasty woman”) played in convincing her husband to commit the crime. But given that both Macbeths had since perished, King Malcolm needed to “drain the bog” and were using the three vulnerable women as scapegoats.
One underpinning of Maynard’s argument was an inherent sexism in witchcraft proceedings. Maynard, who was assisted by two female associates, pointed out that the three of them could themselves be considered a coven of witches. And when Breyer questioned some of the supernatural accusations, Maynard said point-blank, “You’re a man,” and suggested that Macbeth kept “manterrupting” the Sisters.
Representing the Kingdom of Scotland, Verrilli opened with the assertion that “complaining about a witch hunt doesn’t get rid of a sound legal argument” and that “if someone is complaining about the greatest witch hunt” you can be assured that “something wicked this way comes.”
Verrilli’s argument focused on the inconsistencies in the Sisters’ assertions about their religious practices — are the women witches with a religion or just three sisters who have been unfairly maligned? “It’s like you say something is commerce, but then uphold it as a tax,” Verrilli continued.
Verrilli also questioned the supposed neutral nature of the Sisters’ prophecy to Macbeth that he would one day be king. He noted that “the Weird Sisters appear out of nowhere, like Sean Spicer from the bushes,” as evidence that this was no accident. That would be “pure applesauce,” he continued. Verrilli posited that it wasn’t just the prophecy, but the spell the sisters cast on Macbeth that made them culpable.
The panel at times questioned the reliability of Macbeth’s story. “Didn’t Macbeth claim to have the biggest coronation crowd in history?” Millett inquired. And Ginsburg wondered whether the bloody dagger the Sisters allegedly conjured could have been in Macbeth’s mind. Breyer, who spent much of the proceeding confused by Verrilli’s “chestnut argument,” may have been distracted by a phone call he took from the bench in the middle of the session.
When the panel returned their verdict, the justices explained their votes. Ginsburg first delivered the opinion of the court that the women, whom even feminist icon RBG herself accidentally called “witches,” did not aid or abet in the murder. Ginsburg pointed to the historical fear of witches as a reason to burn women.
Srinivasan concurred, noting that the judges should approach their jobs with “empathy,” and harkening back to a time when he used to call his sisters weird, something he now regrets. Millett seemed the most outraged at the lower court’s opinion, noting that when Nate Silver accurately predicts who will be king, he is praised, but when these three women did so, they were convicted. Tatel, who had impressively asked all of his questions in trochaic meter, asserted, still in meter, that although he agreed with the result of the opinion, he differed in his reasoning, suggesting an equal protection argument for overturning the decision. Finally, Breyer, who had served as an off-kilter contrarian during much of the argument, was the lone dissenter, noting that “I don’t understand the chestnut argument, but I sense that it was a very good one.”
Following the opinion of the panel, we learned the opinion of the audience, who had voted with chips during the intermission. In a lopsided result, the audience agreed with the panel to overturn the conviction of the Weird Sisters.
This mock trial was put on by the Bard Association of the Shakespeare Theatre Company in Washington, where “Macbeth” recently finished its run.
The post “Full of Sound and Covfefe”: The Trial of the Weird Sisters appeared first on SCOTUSblog.
Today is the court’s first added day for opinions of the term, and it is coming much later than in recent terms, when opinion days were added in the second week of June.
This morning, around 9:30, I have reflexively walked into the Public Information Office looking for the orders list. But there is no orders list on a day such as this.
In the courtroom, as is typical for the first added opinion day, the bar section is almost empty. About a dozen members of the Supreme Court Bar will show up, joined by Acting Solicitor General Jeffrey Wall and Deputy Solicitor General Edwin Kneedler. Deputy Solicitor General Michael Dreeben, who is no doubt busy with his temporary assignment with the special counsel’s office, is not here.
Usually, when the justices are prepared to take the bench, they are preceded by several aides from the marshal’s office. Typically two, but more recently three, such aides emerge from the curtains and stand still for 10 or 15 seconds, a sign that the justices are about to appear. The aides, joined by a couple more who emerge from the curtains, then help push in the justices’ chairs after Marshal Pamela Talkin delivers the traditional cry.
Today, the chime goes off to signal the start of the court session, and the marshal’s aides are not yet in place. Chief Justice John Roberts is the first one through the middle curtain opening, while the aides scramble in from the side openings. It’s nothing of significance in the great realm of the universe, but just an unscripted moment in an institution that is usually precise and tradition-bound.
The chief justice announces that Justice Elena Kagan has the opinion in Maslenjak v. United States. This case, about a Bosnian Serb woman who had come to the United States as a refugee and who was convicted of lying to the government when she sought citizenship, was the last argued for the term and sparked quite a lively argument.
Kagan explains that under the relevant federal criminal statute, the government must establish that the defendant’s illegal act played a role in her acquisition of citizenship. This holding rejects the government’s view that the statute requires only a violation in the course of procuring citizenship, regardless of whether the violation made a difference in the decision to grant an application.
She cites the “riddle” from her opinion about a statement that “John obtained that painting illegally, but his unlawful acts did not play any role in obtaining it,” except in her bench statement she substitutes Jane for John.
“You would not have a clue what the statement meant, and you would think it was some sort of riddle,” Kagan says.
She also makes a reference to the fact that under the government’s theory, a long-ago speeding violation could prove problematic. That was a theme raised several times at oral argument by Roberts, who was skeptical of the government and has now joined Kagan’s opinion.
Kagan announces a voting lineup that includes an opinion by Justice Neil Gorsuch, joined by Justice Clarence Thomas, concurring in part and concurring in the judgment, and an opinion concurring in the judgment by Justice Samuel Alito. Gorsuch’s written concurrence is his first of that variety.
Next up is Justice Stephen Breyer with a 6-2 opinion in Turner v. United States. This case involves a notorious murder of a woman in the District of Columbia in 1984, and whether certain evidence the government had withheld from the defense was “material” under Brady v. Maryland.
This was argued for the federal government by Dreeben, who had seemingly mastered every fact in this complex, multi-defendant case.
Breyer describes some of the agreed-upon facts of the attack on the victim, “which was pretty gruesome,” and goes into some of the details of the “group attack theory” being challenged by some of the defendants.
“It gives you a flavor for it,” he says. “You’d have to look at the record.”
But the withheld evidence is “too little, too weak, or too distant to undermine the group attack theory,” Breyer says.
Kagan has filed a dissent that is joined by Justice Ruth Bader Ginsburg, and Gorsuch did not participate.
Justice Anthony Kennedy has the last opinion on a day devoted to the criminal law. It’s in Weaver v. Massachusetts, about a defendant’s challenge to a decision to close the courtroom to the public during two days of jury selection.
We aren’t aware in the courtroom that the “bench opinion” being distributed once Kennedy starts reading spells the state as “Masssachusetts.” It is quickly corrected in the online version.
Kennedy explains the doctrines at issue: structural error and ineffective assistance of counsel. The defendant’s counsel at trial did not object to the courtroom closure during voir dire.
Kennedy’s opinion holds for the court that, among other principles, because the defendant has not shown a reasonable probability of a different outcome but for his counsel’s failure to object to the courtroom closing or that his counsel’s shortcomings led to an unfair trial, he is not entitled to a new trial.
Amid a somewhat complicated lineup in a 7-2 judgment, Gorsuch has joined Kennedy’s opinion, a concurring opinion by Thomas, and an opinion concurring in the judgment by Alito. Breyer has written a dissent, joined by Kagan.
With that, Roberts turns to Talkin, the marshal, who bangs her gavel and announces that court will reconvene Friday at 10 o’clock. We think the marshal’s aides will be in place for that.
The post A “view” from the courtroom: The term’s first bonus day for opinions appeared first on SCOTUSblog.
Hugh C. Hansen is a professor of law at Fordham University School of Law. He is the founder and director of the Fordham Conference on IP Law and Policy and the Fordham IP Institute. He submitted amicus curiae briefs in support of Simon Tam in both the U.S. Court of Appeals for the Federal Circuit and the Supreme Court.
Matal v. Tam is one of the most important First Amendment free speech cases to come along in many years. The result is not much of a surprise. For the record, on October 24, 2016, I tweeted: “TAM prediction: from doctrinal, policy, realist analysis + cert before 4 cir op = 2A ‘disparage’ violates 1st Amend; ‘scandalous’ reserved.” What was a surprise was how strongly all eight justices viewed the applicable free speech protection.
Justice Samuel Alito’s opinion meticulously addressed all arguments, making sure there were no loose ends to clutter future cases. His style was critical and even mocking. He left no doubts on the merits of the free speech issues. Justice Anthony Kennedy’s opinion took more of a Gordian knot approach. No need to worry about untying various threads and arguments; viewpoint discrimination allows us to just cut right through them. The purpose of both opinions appeared to be to make sure that there was no way around the Supreme Court’s conclusions in the future. The court also seemed to take offense at the government’s and amici’s arguments as to why there was no viewpoint discrimination. The opinions together amounted to a serious defeat for the government and its amici supporters.
The government and amici put up a strong effort defending Section 2(a) of the Lanham Act. This in part derived from their admirable concern for the feelings of minority groups and the value of Section 2(a). This is the reason the Patent and Trademark Office in effect rewrote the Section 2(a) disparagement provision, years after passage of the act in 1946, to how it is applied today. There is no problem with any of this until someone’s free speech rights become involved. One reason the government and amici are so emphatic in their defense of Section 2(a) is perhaps that free speech took no serious part in their consideration of the issues.
If so, they are not alone. Free speech has never had many true friends. It receives plenty of lip service. We are generally in favor of free speech when we like the speech for which protection is sought but lose interest in it when we do not.
In his 1919 dissent in Abrams v. United States, Justice Oliver Wendell Holmes extolled the idea that freedom of speech in the First Amendment is based upon a marketplace of ideas. No ideas are sacrosanct and all have to withstand scrutiny and debate. Truth will win out in this process and democracy will benefit.
Although that is a very worthy ideal, it is difficult to find any such marketplace today. Newspapers are in decline. Television news shows are divided ideologically, with viewers driven by confirmation bias. The Internet is primarily a gathering place for digital mobs ready to tar and feather those who hold opposing views.
The rest of us have gathered not in the public square but in private groups to which admission is dependent upon adherence to politically correct orthodoxy. It is safe inside these groups, where shared views are sacrosanct and never have to withstand scrutiny. Opposing views are there too, but only to be mocked from a distance.
In this environment, free speech is permitted for somebody with the same views but is disdained when it comes to opposing ones. Political correctness is the new tribalism.
It was upon this highly fraught platform that the government argued that it should be able to enforce politically correct views through Section 2(a). It tells those that are distressed, and are in the right private group, that it will challenge offensive marks on their behalf or allow the distressed to do it themselves. It will not debate these marks in the public square but rather seek to exclude them from it.
Simon Tam’s mark, which encapsulates the group’s controversial ideas, is barred because of those ideas. Yet it is such use of expressive marks that today — ironically, considering this case — are the best hope to keep alive a marketplace of ideas. No private group can exclude these ideas in an effort to insulate themselves from exposure. Moreover, people receive access to the mark without warning and in neutral territory. They are in a setting where they might actually consider the ideas on their merits – before they can jump-start their ideological protective screening.
In sum, I think that court saw that the use of marks for expressive content provides an important nascent marketplace for the reception and debate of ideas. The government’s construction of Section 2(a) effectively stifles this marketplace.
I think it that might be the reason the court’s opinion is so bold and unyielding. The court realizes that there is a serious fight for free speech and this is the beginning of an effort to free it from current cultural confines. (In any case, that is my personal view, and you can’t criticize it because it might seriously hurt my feelings.)
Well, enough of that. What does this opinion then mean for related issues? The most obvious issue concerns the constitutionality of the Section 2(a) bar on “scandalous and immoral” marks. The government took the position after the en banc decision of the U.S. Court of Appeals for the Federal Circuit that these were covered as controlled by that decision. Yet it reserved the right for the solicitor general to distinguish this case and argue that the PTO can still bar such marks from registration. That issue is currently being litigated in In re Brunetti in the Federal Circuit.
Analytically, this is an easy issue. Matal v. Tam controls. But first let’s look a little at the history of case law on the issue. The major case was In re McGinley (C.C.P.A. 1981). There the precursor to the Federal Circuit held that the Section 2(a) ban was constitutional. It reasoned that PTO’s refusal to register the appellant’s mark did not affect the right to use it and that no tangible form of expression was suppressed. Since then three panels of the Federal Circuit and the U.S. Courts of Appeals for the 1st, 3rd and 5th Circuits have all followed that reasoning.
McGinley was a mainstream (and Main Street) approach to the First Amendment. It was not an outlier. It was decided the way most if not all courts would have decided it. This is especially true for the Federal Circuit, the overseer/guardian of the PTO’s trademark registration system.
“Disparagement” and “scandalous and immoral” provisions are similar but different. The latter does not ring First Amendment free-speech bells with most people. This is because (1) the marks at issue are smutty, vulgar or worse and not intended to send any larger expressive message; (2) registration is not perceived as economically necessary for these mark owners; (3) when there are serious free speech issues they can be ameliorated on a case-by-case basis by careful or limiting application of the statutory tests; (4) this provision provides a desirable civilizing effect on what could be registered as marks; and (5) courts had already made Section 2(a) more First Amendment-friendly through a construction that effectively eliminated “immoral.”
On the other hand, the result of declaring a First Amendment violation would include: (1) disruption of the status quo – a removal of provisions in the law since 1905; (2) outrage in Congress and the public; and (3) a potential smut-bath of new applications.
For most who would balance these policies and effects, the choice is not difficult. And balancing is what courts do. The fact that neither the en banc Federal Circuit nor the Supreme Court addressed this question indicates the lack of appetite for deciding it. I think some courts might still try to find ways to uphold the “scandalous and immoral” provision. But this time the whole world will be watching and, ultimately, I think they will conclude it is covered by Matal v. Tam. And they can pass on the blame by saying “the Supreme Court made me do it.”
What is more interesting are the suggestions by some very smart people that this case threatens the viability of the tarnishment provision in dilution law and even the whole law of dilution. I don’t think that is the case for several reasons. First, the Supreme Court did not actually reach its result Matal v. Tam by applying or construing language from prior cases. It reached it by looking at public policies, possible conflicts in those policies, and other real-world issues. So the court will not seek to derive an answer on dilution and the First Amendment from language in Tam. Even if it did, I am doubtful it would reach the same conclusions as those that have been suggested.
Furthermore, the decision in Tam was based in part on the fact that the “disparagement” provision had nothing to do with the goals of trademark law. The court in fact was supportive of trademark law, noting that the “’Lanham Act provides national protection of trademarks in order to secure to the owner of the mark the goodwill of his business and to protect the ability of consumers to distinguish among competing producers.’” Dilution’s law whole purpose from the beginning was to protect the goodwill of the mark owner. It protects against the “whittling away” of a mark’s goodwill by unauthorized users. It also protects against increased consumer search costs. Tarnishment protects the goodwill of a product’s mark by preventing it from being associated when there is no likelihood of confusion with inferior or undesirable products. And finally, it is highly unlikely that a court will feel comfortable eliminating state dilution laws that are over 65 years old or federal laws, whatever the reason.
Free speech up until now has been a hothouse flower. It was beautiful to look at in its protected state, but out in the elements it rarely survived, let alone thrived. Matal v. Tam creates the possibility of breaking down those glass walls. The question is whether that is premature or whether free speech can survive outside on its own. I guess that will depend to some extent on what you and I do.
The post Symposium: Most important free speech case in many years appeared first on SCOTUSblog.
Read more of this story at Slashdot.
We live-blogged this morning as the court released opinions. The transcript is available at this link.
The justices are expected to take the bench today at 10 a.m. to issue opinions in argued cases. There are 12 decisions still outstanding, involving everything from cross-border shootings and property rights to the death penalty and public funding for playgrounds at religious preschools. Here is a brief summary of each of those 12 cases, organized by the sitting in which they were argued.
December sitting (November 28 to December 7)
Jennings v. Rodriguez: The question before the Supreme Court in this case is whether immigrants who are detained have a right to a bond hearing – that is, a chance to appear in front of an immigration judge and seek their release after making payments to ensure that they will appear at later proceedings in the case. The named plaintiff in the class action is Alejandro Rodriguez, who was held for more than three years without a hearing. The U.S. Court of Appeals for the 9th Circuit ruled that immigration judges must give immigrants who have been detained bond hearings at least every six months; at the hearing, the immigration judge must order an immigrant’s release unless the government can show convincingly that the immigrant is either a flight risk or a danger to public safety.
When the case was argued on November 30, Kevin Johnson reported that the justices “appeared deeply divided.” The decision is likely to be written by either Chief Justice John Roberts or Justice Samuel Alito, because neither justice has written an opinion from the December sitting yet. (The justices try very hard to divide up the opinion-writing workload evenly, not only over the course of the term but also from sitting to sitting, which has the added benefit of allowing us to predict who might be writing the opinion with some degree of certainty.)
January sitting (January 9 to 18)
Sessions v. Dimaya: When someone who is not a citizen of the United States is convicted of a crime, he can be deported from the country if his crime was an “aggravated felony.” Under the Immigration and Nationality Act, an “aggravated felony” is defined to include a “crime of violence,” which is in turn defined as any felony that, “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” In 2015, the court ruled that the so-called “residual clause” in the Armed Career Criminal Act’s definition of “violent felony” – which was similar, although not identical, to the definition of a “crime of violence” – was so ambiguous that it violates the Constitution’s bar on vague criminal laws. The question is whether the same is true for the INA’s definition of a “crime of violence.”
Justice Clarence Thomas is the only justice who has not yet written an opinion from the January sitting, so he is almost certainly writing this one. Thomas did not ask any questions at the January 17 oral argument, and he agreed with the result – but not the reasoning – in the court’s earlier ruling on the ACCA. In his separate opinion in that case, he indicated that he would have resolved the case based on the statute, rather than finding that the provision at issue violated the Constitution. He explained that he “would be wary of holding the residual clause to be unconstitutionally vague” because, in his view, “the vagueness doctrine shares an uncomfortably similar history with substantive due process, a judicially created doctrine lacking any basis in the Constitution.”
February sitting (February 21 to March 1)
Hernandez v. Mesa: In this case, the justices will decide what standard courts should use to determine whether the Fourth Amendment applies outside the United States. The case was brought by the family of Sergio Hernandez, a 15-year-old who was shot and killed by a U.S. Border Patrol agent, Jesus Mesa, as Hernandez played in a culvert on the Mexican side of the U.S.-Mexico border. The family’s lawsuit alleged (among other things) that the agent’s conduct violated the Fourth Amendment’s bar against excessive deadly force, but the lower court ruled that the protections of the Fourth Amendment do not extend to Mexican citizens like Hernandez, who lacked any real connection to the United States and who was in Mexico when he was shot. The justices also are considering two other questions: whether Mesa can be sued if he did not know at the time of the shooting that Hernandez was not a U.S. citizen; and whether Hernandez’s parents can rely on a 1971 case, Bivens v. Six Unknown Federal Narcotics Agents, which held that a violation of the Fourth Amendment by federal government officials could give rise to a lawsuit for damages.
Two justices have not yet written any opinions from the February sitting: Alito and Justice Stephen Breyer. In a decision issued on Monday, the court – in a decision by Justice Anthony Kennedy – ruled that Middle-Eastern men who were detained after the September 11 attacks could not rely on Bivens to sue high-level Department of Justice officials. Because Alito joined Kennedy’s opinion on Monday, and he had expressed concern at the February 21 argument about the family’s failure to provide what he regarded as a workable rule for determining when Bivens suits should be allowed, an Alito opinion would likely bode well for Mesa and poorly for Hernandez’s family.
By contrast, Breyer took the rare step of dissenting from the bench on Monday to explain that he would have allowed the Bivens claims in those cases to go forward. And at the oral argument in this case, he suggested that the availability of a Bivens claim should be presumed unless there are special factors weighing against one. On the other hand, Breyer (like Alito) also pressed the lawyer for Hernandez’s family to articulate a clear and rational rule. So although a Breyer opinion would be better news for the Hernandez’s family than for Mesa, a favorable outcome would be far from certain for them.
March sitting (March 20 to 29)
Murr v. Wisconsin: This important property-rights case was filed by four siblings who received two adjoining lots on a river in Wisconsin from their parents, who had bought one lot and built a home on it and then purchased the second lot as an investment. The siblings wanted to sell the second lot and use the money to renovate the home on the first lot. But a local zoning ordinance, passed after their parents had purchased the lots, blocked them from doing so on the ground that the two lots had been “merged” into one lot because they were contiguous and had the same owners, even though they were both deeded and taxed separately. The siblings argued that this ordinance imposed an unconstitutional taking on them. But the state appeals court disagreed and ruled that the two parcels should be considered as one; if the parcels are viewed together, the siblings were not deprived of all of the value of their land – a requirement for a taking. The Supreme Court has said that, to determine whether a regulation is a taking, you look at the regulation’s effect on the “parcel as a whole.” The question that the justices will decide in this case, in essence, is what constitutes the parcel?
The siblings argue that the parcel is only the second lot, because courts should look at the lot lines that are on record. The two lots, they say, “were purchased at different times, for different purposes, and have never been considered as a single economic unit or jointly developed.” The state countered that courts should take into account the entire body of the state’s property laws and the owner’s reasonable expectations, which in this case would require the court to look at both parcels together. In its brief in the case, the federal government proposed case-by-case analysis – which in this case, it argued, favors treating the two parcels as one.
The justices agreed to review this case well over a year ago, before the death of Justice Antonin Scalia. But the court did not schedule it for oral argument until March 2017, by which point Justice Neil Gorsuch had been nominated but not yet confirmed. At the March 20 argument, the eight-member court appeared closely divided; as is so often the case, the outcome could hinge on Kennedy’s vote.
Lee v. United States: This is yet another installment in the series of “crimmigration” cases ” – that is, cases at the intersection of criminal law and immigration – at the court this term. It features a scenario familiar in immigration law: A noncitizen gets into trouble with the law and then receives poor legal advice, jeopardizing his stay in the United States.
The immigrant in this case, Jae Lee, came to the U.S. from South Korea in 1982 and went on to become a successful businessman. But in 2009, he was charged with possession of ecstasy with intent to distribute. After seeing the evidence against Lee, Lee’s attorney recommended a guilty plea, in the hope of receiving a shorter sentence. But, and despite assurances to the contrary from Lee’s attorney, Lee’s guilty plea actually led to his permanent and mandatory deportation. Lee tried to vacate his conviction, arguing that he had been deprived of his constitutional right to have adequate assistance from his attorney. The government agreed that Lee could satisfy the first prong of the test to determine whether an attorney’s representation violated the Constitution: The attorney had provided deficient advice when he told Lee that a guilty plea would not expose him to deportation. But the lower courts ruled that Lee could not show, as required by the second prong of the test, that he was prejudiced by that bad advice, because the evidence of his guilt was so overwhelming that he would have been convicted and deported anyway.
Turner v. United States: The crime at the heart of this case (along with Overton v. United States, with which it was consolidated) is the murder of Catherine Fuller, a District of Columbia mother, nearly a quarter-century ago. The petitioners in the case are a group of Washington, D.C., men who were convicted of the crime, based primarily on testimony from alleged eyewitnesses. Years later, a reporter learned that the men’s lawyers had not received a statement suggesting that someone else had committed the crime; additional discovery then revealed that prosecutors had not turned over other evidence that could have aided the defendants. The men sought to vacate their convictions, but were unsuccessful in the lower courts. However, last fall the justices agreed to review the case, focusing on whether the men’s convictions must be set aside under Brady v. Maryland, which requires the government to turn over information that could exonerate the defendant.
Kennedy has not yet written for March, so at least one of these three remaining decisions will almost certainly be his. We expect 11 opinions from the March sitting, and Alito has already written two opinions from March, which means that another justice (either Kennedy or someone else besides Alito) will also likely write two opinions for March.
April sitting (April 17 to 26)
Perry v. Merit Systems Protection Board: Under federal law, a federal employee who is fired or demoted can go to the Merit Systems Protection Board and, if necessary, appeal the board’s decision to the U.S. Court of Appeals for the Federal Circuit. However, the Federal Circuit’s review of that ruling is fairly limited. But if a federal employee contends that he was fired or demoted as a result of discrimination (known as a “mixed” case), he can seek a civil administrative proceeding before the Equal Employment Opportunity Commission, followed by a lawsuit in an appropriate district court and an appeal to a regional federal court of appeals. But the employee also has another option: He can go to the MSPB. The question before the court is whether the board’s decision in these “mixed” cases should be reviewed in a federal district court or a federal court of appeals.
California Public Employees’ Retirement System v. ANV Securities, Inc.: In this case, the justices are considering questions related to the timeliness of individual securities fraud actions that are related to securities-fraud class actions – specifically, whether the filing of a would-be class action satisfies the statute of limitations for members of that class, or whether an individual class member would have to file his own complaint before the statute of limitations runs out. This is a key question whenever a class member decides that he wants to “opt out” of the class action and file a separate complaint. In this case, for example, CalPERS opted out of a settlement in a class action against underwriters of Lehman Brothers securities; although the class-action complaint had been filed on time, the U.S. Court of Appeals for the 2nd Circuit held that CalPERS’ individual complaint, which it filed after it opted out of the settlement, was too late. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]
Trinity Lutheran Church of Columbia, Inc. v. Comer: In 2012, Trinity Lutheran Church applied for a state program that reimburses nonprofits for the purchase and installation of rubber playground surfaces made from recycled tires. Missouri’s Department of Natural Resources, which administers the playground program, ranked Trinity Lutheran’s application fifth out of the 44 that were submitted but nonetheless denied the church’s application, citing a provision of the state constitution which prohibits money from the state treasury from going “directly or indirectly, in aid of any church, sect, or denomination of religion.”
The church went to court, arguing that the denial of its application violates the Constitution by discriminating against religious institutions. The state countered that the church members are free to exercise their religion, but the state does not have to pay for it. The state prevailed in the lower courts, but the Supreme Court agreed to weigh in last year, before Scalia’s death. The case remained on hold until April 2017, when the justices finally heard oral argument. At the oral argument, only Justices Ruth Bader Ginsburg and Sonia Sotomayor seemed to be squarely on the state’s side, with Justices Elena Kagan and Breyer perhaps leaning toward the church, making the delay in scheduling the case even harder to understand..
Weaver v. Massachusetts: In this case, the justices are considering whether a criminal defendant who contends that his lawyer provided constitutionally inadequate representation that resulted in a “structural” error – that is, a fundamental error that affects the entire structure of a trial – must also show that he was harmed by that inadequate representation. The issue arises in the case of Kentel Weaver, who was arrested in 2003 at the age of 16 for the murder of a 15-year-old in Boston and eventually confessed. However, Weaver’s case went to trial, with a jury pool of approximately 90 potential jurors. And when Weaver’s mother and other supporters arrived for the trial, they were told – on two separate days – that the courtroom was “closed for jury selection.” Weaver’s lawyer was aware that Weaver’s supporters had not been admitted to the courtroom, but he did not object. Several years later, Weaver sought a new trial, citing (among other things) his lawyer’s failure to object when the courtroom was closed during jury selection. The judge ruled that the courtroom had indeed been closed, in violation of Weaver’s Sixth Amendment right to a “public trial.” But he also ruled that Weaver would have to show that he was prejudiced by the courtroom closure, which he had failed to do.
Davila v. Davis: In 2012, the Supreme Court considered a case in which a defendant alleged that the lawyer who represented him in his state post-conviction proceedings provided inadequate assistance when he failed to properly raise the defendant’s claim of ineffective representation at his trial. In that case, Martinez v. Ryan, the court ruled that a defendant who receives inadequate representation from his lawyer in his post-conviction challenges is excused from having to present his underlying ineffective assistance claim adequately, so that a federal court can consider the merits of his original claim of ineffective assistance at trial. In this case, the question before the court is whether the same is true when the underlying ineffective assistance claim arises from the defendant’s appeal, rather than from the trial itself.
Maslenjak v. United States: The petitioner in this case is 53-year-old Divna Maslenjak, an ethnic Serb who came to the United States as a refugee from what is now Bosnia, fleeing the conflict in the former Yugoslavia. Maslenjak became a U.S. citizen but was later stripped of her U.S. citizenship and deported (along with her husband) to Serbia after the U.S. officials discovered that she had made false statements during the naturalization process. Maslenjak acknowledges that she lied to U.S. immigration officials, but she argues that she should still be able to remain a U.S. citizen because the false statements were not material – that is, they would not have been important to the officials deciding whether to grant her citizenship application. The justices will decide whether that interpretation of U.S. immigration law is correct.
There are six opinions still outstanding from April. Chief Justice John Roberts has not yet written for April, nor have Kennedy, Breyer or Kagan.
Read more of this story at Slashdot.
(June 2017) The level of well-being of young American women (ages 16 to 34) rose significantly for members of the Baby Boom generation but hit a wall for women in subsequent generations, the Population Reference Bureau (PRB) concludes in a new report. In its latest Population Bulletin, “Losing Ground: Young Women’s Well-Being Across Generations in the United States,” PRB analysts present a comprehensive new Index of Young Women’s Well-Being to show how social and structural barriers to progress for young women in Generation X and the Millennial generation have contributed to women’s persistently high poverty rates, a declining share of women in high-wage/high-tech jobs, a dramatic rise in women’s incarceration rates, and increases in maternal mortality and women’s suicide…
Momentum has stalled or reversed on several key measures of well-being:
- The proportion of women ages 30 to 34 living in poverty increased to about 17 percent for the Millennial generation from about 12 percent for Generation X.
- Young women in Generation X faced higher rates of maternal mortality than women of the Baby Boom, and rates are even higher for Millennial women.
- About 1 in 4 workers in high-paying STEM occupations (jobs in science, technology, engineering, and mathematics fields) were women in Generation X, but this has fallen to 1 in 5 for Millennials.
- The suicide rate for young women in the Millennial generation increased to 6.3 per 100,000 from 4.4 per 100,000 in Generation X.
- Women’s incarceration rates have grown 10-fold between the World War II generation and Millennial generation…”
Casanovas, Pompeu and de Koker, Louis and Mendelson, Danuta and Watts, David, Regulation of Big Data: Perspectives on Strategy, Policy, Law and Privacy (June 1, 2017). Health and Technology (2017) DOI 10.1007/s12553-017-0190-6. Available at SSRN: https://ssrn.com/abstract=2989689
“This article encapsulates selected themes from the Australian Data to Decisions Cooperative Research Centre’s Law and Policy program. It is the result of a discussion on the regulation of Big Data, especially focusing on privacy and data protection strategies. It presents four complementary perspectives stemming from governance, law, ethics, and computer science. Big, Linked, and Open Data constitute complex phenomena whose economic and political dimensions require a plurality of instruments to enhance and protect citizens’ rights. Some conclusions are offered in the end to foster a more general discussion. This article contends that the effective regulation of Big Data requires a combination of legal tools and other instruments of a semantic and algorithmic nature. It commences with a brief discussion of the concept of Big Data and views expressed by Australian and UK participants in a study of Big Data use in a law enforcement and national security perspective. The second part of the article highlights the UN’s Special Rapporteur on the Right to Privacy interest in the themes and the focus of their new program on Big Data. UK law reforms regarding authorisation of warrants for the exercise of bulk data powers is discussed in the third part. Reflecting on these developments, the paper closes with an exploration of the complex relationship between law and Big Data and the implications for regulation and governance of Big Data.”
Oxford Internet Institute, University of Oxford: “The Computational Propaganda Research Project at the Oxford Internet Institute, University of Oxford, has researched the use of social media for public opinion manipulation. The team involved 12 researchers across nine countries who, altogether, interviewed 65 experts, analyzed tens of millions posts on seven different social media platforms during scores of elections, political crises, and national security incidents. Each case study analyzes qualitative, quantitative, and computational evidence collected between 2015 and 2017 from Brazil, Canada, China, Germany, Poland, Taiwan, Russia, Ukraine, and the United States.”
The reports can be found at the following links:
“The ALA Office for Human Resource Development and Recruitment (HRDR) is pleased to announce the publication of its comprehensive Career Development Resource Guide. It is intended to assist library staff at all levels —new graduates, mid- or senior-level career— in their job search and career journeys. The Guide has a wealth of information. It includes sections on job search strategies, self-marketing (looking at your social media identity), correspondence such as resumes, CVs, and cover letters, as well as interviewing strategies, and tips on negotiating and accepting job offers. The Guide provides a list of questions employers typically ask along with questions you can ask employers during an interview. In addition, the Guide has information on networking and tapping the hidden job market along with instructions for presenting yourself as a professional with business etiquette.To assist the whole person, the Guide also provides resources to help individuals manage stress during a job search. Lorelle Swader, the Director of HRDR said, “We are excited to release this publication because it is a project that has long been dreamed of by the HRDR team. It supports the professional development of ALA members in a fresh new way.” The Guide was produced for HRDR by College Recruitment Media (CRM). College Recruitment Media, headquartered in Geneva, Ill., designs and publishes custom online and print career development guidebooks for institutional, educational and corporate customers. Among its long-term clients are Stanford University, Massachusetts Institute of Technology, Columbia University, Carnegie Mellon and Howard University.”
“International tribunals have been around for some time, but the creation of international courts and tribunals to deal with international crimes is a relatively recent occurrence, with the first international criminal tribunal established just after World War II. The Max Planck Encyclopedia of Public International Law defines “international courts and tribunals” as ”permanent judicial bodies made up of independent judges which are entrusted with adjudicating international disputes on the basis of international law according to a pre-determined set of rules of procedure and rendering decisions which are binding on the parties.” In order to organize and manage digital content available on international courts and tribunals, the Library of Congress Web Archiving Team and the Law Library of Congress recently launched an “International Tribunals Archive”(ITA). The ITA is an archive with the purpose of digitally storing relevant websites hosting information about the most important international tribunals created since World War II for researchers today and in the future…”
Millennials in America are more likely to have visited a public library in the past year than any other adult generation. “A new analysis of Pew Research Center survey data from fall 2016 finds that 53% of Millennials (those ages 18 to 35 at the time) say they used a library or bookmobile in the previous 12 months. That compares with 45% of Gen Xers, 43% of Baby Boomers and 36% of those in the Silent Generation. (It is worth noting that the question wording specifically focused on use of public libraries, not on-campus academic libraries.)”
Beyond the stalling, waffling, denying, punishing, and ignoring, some answers. By Claire Suddath – “…Over the past 50 years, women have achieved an astounding level of equality in the U.S. They have become astronauts and U.S. Supreme Court justices and have come so close to winning the presidency it’s easy to forget that until 1974 they couldn’t get a credit card unless a man co-signed the application. Women are the primary breadwinners in half of all U.S. families. They’re more likely to hold a bachelor’s or master’s degree than men, and should they choose to marry, about a third of them will keep their last name. But one of the most intractable and measurable differences between women and men in the U.S. is the kind of jobs they hold and how much they’re paid. The most frequently cited figure when discussing this gender wage gap is that full-time working women in America earn roughly 80 percent of what men do. But that number, though true, doesn’t offer much insight into the underlying social and economic forces generating the inequality, nor why it’s remained relatively unchanged for the past 20 years. It also doesn’t explain how incredibly difficult it is to change the status quo…”
Read more of this story at Slashdot.
ABC News: Senate investigators will receive a trove of banking records from the Treasury Department that lawmakers believe could help shed light on any business dealings involving campaign aides and other advisers to President Trump, Sen. Ron Wyden told ABC News on Tuesday. “The stack of press reports gets higher every day regarding financial connections between Trump associates and Russia and Trump’s own business dealings with Russian interests,” said Wyden, an Oregon Democrat who sits on the Senate Intelligence committee. “This morning, Treasury briefed me on documents that are being transmitted to the Senate. I believe these documents will be sufficient to start following the money.” The Treasury provided the trove of documents after a weekslong standoff, during which Wyden placed a hold on Trump’s nomination of New York attorney Sigal Mandelker to head the Financial Crimes Enforcement Network, or FinCEN. The Senate advanced her nomination on Tuesday shortly after a deal was reached…”
Bloomberg: “Drones could soon be flying you books, pills, and pizzas—but first, they’ve got to figure out what kind of wind gusts to expect on your street.”
“The Internet Crime Complaint Center (IC3) has released its 2016 Internet Crime Report, describing the numbers and types of cyber crimes reported to IC3. Business Email Compromise (BEC), ransomware attacks, tech support fraud, and extortion are all common schemes affecting people in the U.S. and around the world. US-CERT encourages users to review the 2016 Internet Crime Report for details and refer to the US-CERT Security Publication on Ransomware for information on defending against this particular threat.” [thanks Pete Weiss]
Read more of this story at Slashdot.