[Despite my efforts to straighten things out, the fonts, spacing, etc, in this post has ended up an ugly hodge-podge. My apologies. - CF] T o first amendment lawyers, this is preeminently the term in which Matal v. Tam found that the disparagement clause of the trademark statute infringes upon the free speech right under the first amendment. The court was unanimous as to the judgment (that the "Slants," a dance-rock band, can be trademarked as such) though there were differences as to the reasoning. Hugh C. Hansen, law professor at Fordham, has called this “one of the most important First Amendment free speech cases to come along in many years.” Simon Tam and his fellow band members made for sympathetic defendants. They obviously were not disparaging their own Asian background. They were appropriating a stereotypical slur concerning Asians’ eyes, in the tradition of many groups throughout history who have turned insults into badges of ...
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Another term of the U.S. Supreme Court has come and gone and, once again as in years past, I’d like to say something about it in this blog. Since it’s my blog, I hereby award myself that wish, over the course of this and the next three posts. I don’t plan to discuss Jevic Holding . That was a very important decision, re-affirming ideas foundational to bankruptcy law, but … I’ve already taken a couple of cracks at it in this blog, and would have nothing new to say now. I was tempted, in my earliest outlining of this discussion, by the idea of discussing at some length recent events in the public finance and politics of Puerto Rico. These events (including a very strikingly pro- statehood referendum result) in large part follow from the Supreme Court’s decisions on Puerto Rican matters last term. But I’ll save myself some time and give the matter the ‘elevator’ treatment: subsequent events have been entirely consistent with my treatment of those decisions at the time. ...
As regular readers will have noticed, I've been creating a multi-entry list of Supreme Court decisions, naming just one stand-out decision per year. Here is my final entry on that theme, bringing us up to date. Supreme Court cases, 2010 to the present 2010: McDonald v. Chicago -- second amendment 2011: Snyder v. Phelps -- limit on tort liability for emotional distress (Westboro Baptists and the first amendment) 2012: NFIB v. Sebelius -- the big Obamacare decision 2013: Association for Molecular Pathology v. Myriad Genetics -- genes and patents 2014: Halliburton v. Erica P. John Fund -- class certification and securities fraud 2015: Obergefell v. Hodges -- marriage equality 2016: Merrill Lynch v. Manning -- state courts have concurrent jurisdiction on certain securities fraud civil liability issues with the federal courts. I've now listed a total of 47 SCOTUS decisions in this very subjective way. There should be some broader gener...
A new book by David Rudenstine, THE AGE OF DEFERENCE, looks at the extent to which judges defer to the President, and to the executive branch more generally, especially since the end of the Second World War. Rudenstine discusses a variety of Supreme Court decisions going back to the Truman era, in which the high court ceded authority. The trauma of 9/11 seems only to have made this habit more settled. Rudenstine thinks this a bad thing, an abdication of the courts' task to protect individual rights on the one hand and to check otherwise uncheckable power on the other. Here's more from the Legal History Blog. http://legalhistoryblog.blogspot.com/2016/09/rudenstine-on-supreme-court-national.html
We move on now to the headline constitutional issues: the one-person one-vote rule; separation of powers; coerced speech in the labor union context. Last year at this time, I mentioned that the SCOTUS had agreed to hear Evenwel v. Abbott. This case gave the court a chance to clarify the meaning of "one person, one vote," where appellants asked it to reconstrue that as "one qualified potential voter, one vote." SCOTUS' answer: the appellant loses. The states may divide themselves into congressional districts on the basis of total population without inquiries into eligibility. They get to choose. The decision left open the possibility that some state may decide to re-work its district lines according to the number of eligible voters in each. If any state does so and that practice is challenged, only then will we get a more definitive word, I gather. This decision was unanimous. Thomas and Alito wrote concurring opinions. Thomas joined in Alit...
For a long time, I thought of US politics in terms of a 30 year cycle. I thought of this as the "short cycle" of two, for I also had and still have a long cycle theory. But the short cycle was specifically keyed to Presidential election, so it manifested itself in 32 or 28 year intervals (since 30 is not divisible by four). Pursuant to the short cycle theory I compared President Obama's election in 2008 to the election of other relatively obscure figures who carried on the impetus of a reform movement past its prime. A haberdasher in 1948 was elected as the last hurrah for the New Deal. Four years later he bowed out, letting Adlai Stevenson take the fall for Eisenhower's victory. Twenty eight years after 1948 brings us to 1976, when a peanut farmer became President as a final upsurge of New Frontier/Great Society liberalism. Four years later he was mugged by an Ayatollah on the way to defeat by Ronald Reagan. Thirty-two years from 1976 brings us t...
Someone asked me recently what qualities I believe a Supreme Court appointee should have. I'm the author of a book on related issues, considered historically. But I had never thought to create such a list. Putting aside anarchistic arguments, thinking within the box of the existing constitutional system, I offer the following. [I'll use the generic pronoun 'he' below for convenience only.] He should be independent-spirited, willing to tell anyone (including the other 8, including the consensus of legal opinion, including the President who appointed him) to go to hell rather than putting himself in the wrong in his own eyes. He should be learned in the HISTORY of the law. He should commune in his own mind not with the other eight folks in the conference room with him, but with Jean Bodin, Edward Coke, John Marshall, and Hugo Black. Finally, he should have some experience of the business world. Perhaps just by having run a law office with his own n...
That phrase comes, of course, from the Declaration of Independence. It is the third of the unalienable rights, along with life and liberty. The word "property" often shows up as the third item on such lists, and does so for example in both the Bill of Rights and the 14th amendment. But Jefferson wrote of "life, liberty, and the pursuit of happiness." Much heavy water has been made of this in the last 2 and 1/3 centuries. I'm reminded of an episode of The Sopranos in which Tony is complaining to his psychologist about his terrible life. He says that he saw a documentary on The History Channel in which the anchor said that the US is the only nation in the world with a founding document that explicitly mentions happiness. "So where is my happiness," he cries. Dr. Melfi, "'Pursuit' is what it says." Tony: "Yeah, there's always a fucking loophole." Anyway, one common question is the origin of Jefferson's p...
Another term of the U.S. Supreme Court has come and gone. This year, though as in most years the court issued a lot of decisions that are, in their own several ways, fascinating, is not a year in which THE ONE -- the big case, is immediately obvious. If any one of them is THE stand-out case, the matter will be determined by the jurisprudential historians of posterity. I will leave out of my discussion here and in the next two days the decision regarding Argentina's bond default and the hold-out's recourse, because I have had something to say of that one already. This leaves the following five decisions of great importance. Simply listing by alphabetical order they are: *Alice Corp. v. CLS Bank -- patentability *Halliburton v. Erica P. John Fund -- class action *Sebelius v. Hobby Lobby -- Obamacare implementation * Susan B. Anthony List v. Driehaus -- free speech *Town of Greece v. Galloway -- establishment clause. I'll say something about Alice Corp. in...