Continuing a Discussion of the Supreme Court's Term: Reading Statutes

This is the second part in our four part discussion of the US Supreme Court's October 2019 term, recently concluded.

Perhaps the most eagerly awaited of the decisions that SCOTUS released late in the October 2019 term was its interpretation of the Civil Rights Act, encompassing within the scope of that act the prohibition of a discharge of a homosexual or transgender person from employment on account of that identity.

The decision is captioned Bostock v. Clayton County. Gerald Bostock was a coordinator of child welfare services for Clayton County, Georgia, a county of roughly a quarter million population.

Justice Gorsuch wrote the opinion for the majority (six). This itself was a body blow to the religious conservatives who are a critical part of President Trump's political support. Many of those folks have long held the view that, "no, Trump is no great shakes as a human being, but at least he will deliver for us on judicial nominations." Gorsuch's opinion may tell them that Trump is NOT reliably delivering for them: that he cannot be relied upon for the one point that was justifying the ignoring of a lot of other points.

Because of Sex

Anyway, Gorsuch said this: "[W]e must decide whether an employer can fire someone simply for being homosexual or transgender." Title VII of the civil rights act prohibits employment discrimination "because of sex." Thus, for Gorsuch, the answer to the question is clear. When an employee is fired for being homosexual or transgender he/she is fired for "traits or actions [the employer] would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids."

This is true, Gorsuch continued, even if "other factors besides the plaintiff's sex contributed to the [firing] decision," and even if "the employers treated women as a group the same when compared to men as a group."

The repercussions of this act of textualism continue to resound. The significance of the distinction between textualism and intentionalism are profound, and they don't cut consistently across ideological or even jurisprudential lines. At least lawyers as advocates have a good idea now how to frame their arguments to try to win over Gorsuch's vote.

Superfund Liability

We move abruptly to the world of the Superfund, the system created in the waning days of the Carter presidency and administered by the US EPA to clean up toxic waste sites.

The cite with which we are concerned at the moment is Atlantic Richfield v. Christian, and the site is in southwest Montana, which was formally the location of copper ore smelter.

The company that owned the site, Atlantic Richfield,  has spent nearly half a billion dollars cleaning it up. But many local landowners don't believe it has done enough, and they want roughly another $50 million spent to return their properties to pre-smelting condition.

The case raised complicated questions, such as whether the federal Superfund law preempts some common law and state claims claims such as those the landowners are raising.

SCOTUS said this April, after oral arguments in December, that it doesn't have to decide that, because it was deciding the case under a provision of the 1980 statute designed to keep parties who have unclean hands themselves from gaming the system. SCOTUS -- in a decision by Chief Justice Roberts -- said that the landowners are "potentially responsible parties" themselves under federal environmental law, so they would need approval from the EPA before taking an action to repair their properties.

This case (or at least the part of it that treated of the phrase "potentially responsible parties"), was a 7-2 decision. Gorsuch wrote a dissent in which Thomas joined. The dissent interpreted the phrase "potentially responsible parties" to mean parties that might yet be HELD responsible as a matter of law. The landowners could not be, given the passage of the pertinent statute. So the majority was coping out.

Roberts pushed back against this, understanding "potentially responsible parties" to mean parties who might reasonable by thought to be responsible as a matter of fact, not merely as a matter of law. On that reading, the statute of limitations has no bearing on the matter.

It is not obvious whether it was Gorsuch or Roberts who had the better title here to be considered a textualist.

Intellectual Property

Again with no real effort at transition, we turn to IP. My regular readers may know my bias. I am very dovish on IP. Ideas should not be fenced in. Th more quickly and completely they become common domain, or some analog, the better.

This April, in Thryv v. Click-to-Call, SCOTUS expounded on the "inter pares review" provision of patent law (35 USC sect. 314). The law allows the PTO to institute a review to reconsider the validity of previously granted patents, upon petition by a defendant in litigated infringement. It also creates a time bar. A review is supposed to be initiated only if the petition requesting that review is filed within one year of the day the petitioner was served with a complaint alleging infringement.

The PTO rejected a particular contention that a petition was time barred. SCOTUS has now held that its rejection was not reviewable. In other words, the PTO has so far as we can tell unlimited discretion to hear even old issues in order to try to defang patent trolls. (Editor: do trolls have fangs?)

This was not a case in which the majority and the dissent competed over the question of who was more textualist than whom. It was pretty explicitly a policy dispute. How dangerous are trolls and can they most effectively be defanged? (Reporter to editor: please shut up.)  There were two dissenters, Gorsuch and Sotomayor. And yes, as the conjunction of those two names might indicate, the hawk/dove split among Justices on patent enforcement is not predictable from ideology or from the party affiliation of the nominating President.

The other IP dispute worth discussion here was US PTO v. Booking.com. This is not a dispute over procedures but over the underlying substantive question of when does it become fair for a specific private party to own  a particular configuration of words. How much of the intellectual product of the human race should be private property, how much should be commons?

The word "booking," after all, is just an ordinary old English language word. It means the act of entering into a book, list, or register. How can anyone own that?

Entering an Item in a Book or Register

Booking.com is a company that engages in ... well ... booking. On its website. The URL of which ends with a dot and "com."

The enterprise sought federal registration of the term. The US Patent and Trademark Office -- very sensibly, I have to say, refused. I won't go into the procedural history, and will skip right to the SCOTUS holding Tuesday, June 30.

The court, by an 8 to 1 vote, disagrees with the PTO. The 8-to-1 opinion, by Ruth Bader Ginsburg, agrees that "booking" is generic, but says that if you combine it with a dot and the syllable "com," boy howdy like magic you've got yourself a piece of property. Ginsburg quotes Learned Hand, the most famous US jurist never to sit on the Supreme Court -- the fellow who, at least in my misspent law school years, used to inspire stupid name substitutions such as "Erudite Foot."

In a 1921 case at the Southern District of New York, Judge Hand said that everything turns on public perception. Or, rather, the question is: "What do the buyers understand by the word for whose use the parties are contending?"

Ginsburg believes that people understand "Booking.com" as the name of a single distinctive website, not a class of possible websites, so it is not generic and can be registered. She cites survey evidence in this connection.

Sotomayor, though joining the majority, wrote a concurring opinion expressing regret about Ginsburg's use of survey evidence.  It isn't clear from her brief concurrence why she does NOT conclude that this blows a hole in Ginsburg's reasoning. She acts as if it is a mere detail. But it seems on my reading that Ginsburg uses the Hand quote as the major premise of a syllogism, the survey evidence as the minor premise, and the victory of the registrant as the conclusion. Sotomayor oddly seems to be replying, "I find your minor premise unfortunate, but I agree with the conclusion."

Breyer wrote in (lone) dissent. Breyer acknowledges that the law sometimes does allow the ownership of "descriptive terms" such as "Best Buy" for an electronics retailer boasting that its goods are the best buys available to shoppers. Why is a descriptive term not a generic term? Not because of survey evidence but because such words and phrases come to acquire a "secondary meaning." In this case, Breyer sees no such secondary meaning. "Booking Inc." could not be registered, he tells us. And there is nothing distinctive about the term ".com" that distinguishes it from the "Inc."

Breyer was on the losing side, and perhaps soon parties will start using "Inc" in the way in which Booking.com successfully used "dotcom" here. We'll have Cotton Inc and Steel Inc and so forth.

But ... on to the constitutional stuff. Indeed, tomorrow we will discuss cases that go to the heart of how our constitutional system is supposed to work.

In case you wondered, that is Learned Hand smiling at us from above this post.