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Wednesday round-up

This morning the Supreme Court wraps up its January session with oral arguments in two cases. First on the agenda is a reargument in Knick v. Township of Scott, Pennsylvania, which asks whether the court should reconsider a precedent that requires property owners to exhaust state remedies before bringing federal takings claims under the Constitution. Miriam Seifter had this blog’s preview. Isaac Syed and Yuexin Angela Zhu preview the case for Cornell Law School’s Legal Information Institute. The...
Tags: Supreme Court, Law, Kentucky, Court, United States, Tennessee, Faa, Round-up, TVA, U S Supreme Court, John Roberts, Mark Joseph Stern, Blair, Howe, Ian Millhiser, Samuel Alito


SCOTUS Declines To Rule On Matthew Whitaker’s Appointment As Acting Attorney General

CNBC: In an unusual maneuver, Goldstein also used the case to raise the question of whether Trump’s acting attorney general, Matthew Whitaker, was constitutionally appointed. Trump appointed Whitaker in November after forcing out Jeff Sessions. Critics immediately pounced on the appointment, arguing that it was unlawful because Whitaker had not been confirmed by the Senate to the post he held at the time of his elevation to acting attorney general. Goldstein made his client’s gun rights case int...
Tags: Supreme Court, Senate, Court, Military, Gun Control, Cnbc, Trump, Whitaker, AG, Matthew Whitaker, Goldstein, Rod Rosenstein, Barry Michaels


Argument analysis: Quiescent bench dubious about broad fee awards in copyright cases

The week’s second argument, Rimini Street v. Oracle USA, has the justices considering the scope of fees available to a prevailing party in litigation under the federal Copyright Act. Sitting for the second week without Justice Ruth Bader Ginsburg, the bench was remarkably quiescent. To the extent the justices evinced any strong interest in the case, they seemed skeptical about allowing broad fee awards. The case calls for a reading of Section 505 of the Copyright Act, which defines the recove...
Tags: Featured, Law, Congress, Court, Ruth Bader Ginsburg, Paul Clement, Sonia Sotomayor, John Roberts, Perry, Roberts, Sotomayor, Elena Kagan, Kagan, RIMINI, Clement, Mark Perry


Via distinctive 5-4 vote, SCOTUS concludes Florida robbery satisfies "physical force" requirement as Armed Career Criminal Act predicate

In this post last year, I asked "At just what level of Dante's Inferno does modern ACCA jurisprudence reside?".  This cheeky question flows from the challenges and frustrations that surround trying to figure out which prior convictions do and do not serve as predicates for application of the federal Armed Career Criminal Act's 15-year mandatory minimum term.  And today the Supreme Court added still more color to its modern ACCA jurisprudence by handing down its decision in Stokeling v. US, No. 1...
Tags: Florida, Supreme Court, Law, Scotus, Court, US, United States, Johnson, Dante, Thomas, Sotomayor, Breyer, Kavanaugh, ACCA, Douglas A Berman, Thomas J


Monday round-up

This morning the justices begin the second week of the January sitting with two oral arguments. First up is Thacker v. Tennessee Valley Authority, in which the court will decide whether an implied discretionary function exception bars a negligence claim against the TVA. Gregory Sisk previewed the case for this blog. Ushin Hong and Russell Mendelson have a preview at Cornell Law School’s Legal Information Institute. This morning’s second argument is in Rimini Street Inc. v. Oracle USA Inc., which...
Tags: Supreme Court, Law, Congress, White House, Court, United States, Wyoming, New York Times, Fox News, Npr, Oklahoma, Ruth Bader Ginsburg, Cornell, Hyatt, Round-up, Reuters


Monday’s Mix

Each Monday we present brief excerpts of recent posts from five of Canada’s award­-winning legal blogs chosen at random* from more than 80 recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible. This week the randomly selected blogs are 1. Doorey’s Workplace Law Blog 2. Michael Spratt 3. Erin Cowling 4. Know How 5. Michael Geist Doorey’s Workplace Law Blog Heller v. Uber: Some Thoughts from Ontario on Uber’s Arbitration Clau...
Tags: Uber, Law, Court, Canada, OECD, Telus, Ontario, Ontario Court of Appeal, Heller, Michael Geist, Uber Technologies, Organization for Economic Co, Monday’s Mix, Doorey, Erin Cowling, Michael Spratt


Justice Kavanaugh joins Chief and more liberal Justices in GVR of Kentucky capital case

This morning's Supreme Court order list is fairly short and is mostly denials of certiorari. But the last page of the order list should intrigue capital sentencing fans, and it contains an order in White v. Kentucky, No. 17-9467, in which the Court vacated the decision below "and the case is remanded to the Supreme Court of Kentucky for further consideration in light of Moore v. Texas, 581 U. S. ___ (2017)." This GVR is made extra interesting because Justice Alito issued this short dissent, whic...
Tags: Texas, Supreme Court, Law, Kentucky, Court, Indiana, Kennedy, Cooper, Webster, Scalia, Moore, Alito, Kavanaugh, Kaushal, Gorsuch, Douglas A Berman


2H 2018 Quick Links, Part 6 (IP, E-Commerce, Censorship, & More)

Intellectual Property * Daniel v. FanDuel (Ind. Oct. 24, 2018): “online fantasy sports operators that condition entry to contests on payment and distribute cash prizes do not violate the Indiana right of publicity statute when those organizations use the names, pictures, and statistics of players without their consent because the use falls within the meaning of “material that has newsworthy value,” an exception under the statute.” * Washington Post: ‘Everyone signed one’: Trump is aggressive in ...
Tags: Amazon, Facebook, Minnesota, Law, Congress, Washington Post, China, Massachusetts, Court, E-commerce, Indiana, Trade Secrets, Maine, New Jersey, District Of Columbia, Ada


Louisiana court: Online anonymity doesn’t shield lawyers from ethical obligations

Here is a recent Daily Record column. My past Daily Record articles can be accessed here. ***** Louisiana court: Online anonymity doesn’t shield lawyers from ethical obligation Office water coolers used to be gathering places where people discussed current events and caught up on office gossip. But, like many other time-honored traditions, even water cooler conversations have been affected by technology. Certainly these in-office discussions still occur, but much of the day-to-day discours...
Tags: Facebook, New York, Supreme Court, Law, Court, Social Media, Ethics, Web/Tech, Nopd, Louisiana, Thomson Reuters, Aba, ABA Journal, Gill Pratt, National Guard, Jefferson


Supreme Court adds three (little?) criminal cases to its docket

The US Supreme Court this afternoon released this order list in which the Court granted certiorari in eight new cases.  Three of these cases are criminal justice matters, and here are the basics with a big assist from SCOTUSblog: Quarles v. United States, No. 17-778 Issue : Whether Taylor v. United States’ definition of generic burglary requires proof that intent to commit a crime was present at the time of unlawful entry or first unlawful remaining, as two circuits hold; or whether it is enou...
Tags: Supreme Court, Law, Court, United States, Wisconsin, Taylor, US supreme court, Mitchell, Quarles, Douglas A Berman, Rehaif


"Wealth-Based Penal Disenfranchisement"

The title of this post is the title of this notable new article now on SSRN authored by Beth Colgan. Here is its abstract: This Article offers the first comprehensive examination of the way in which the inability to pay economic sanctions—fines, fees, surcharges, and restitution — may prevent people of limited means from voting.  The Supreme Court has upheld the constitutionality of penal disenfranchisement upon conviction, and all but two states revoke the right to vote for at least some offen...
Tags: Supreme Court, Law, Court, District Of Columbia, Douglas A Berman, Beth Colgan Here


Court denies motion to clarify obligations when making permitted ex parte contacts

By David Hricik The ABA Model Rules and most state rules divide the world into “persons represented by counsel,” who may not be contacted about a matter, and “unrepresented persons,” who may.  Speaking generally, a lawyer may not communicate about a matter with a person who is “represented by counsel” in that particular matter.  See, e.g., A.B.A. Model Rule 4.2.  This is true even if the represented person wants to talk to the lawyer: only the person’s lawyer may consent. If a person is not “rep...
Tags: Law, Court, Ethics, Aba, Fed, Golden, David Hricik, Hoist Fitness Systems Inc, TuffStuff Fitness International Inc, California Code of Professional Conduct, Zwickler


Wednesday round-up

The justices wrap up the first week of the January session today with one oral argument, in Franchise Tax Board of California v. Hyatt, in which the court will consider whether to overrule a precedent that allows a state to be sued in the courts of another state without its consent. Richard Re previewed the case for this blog. Clotilde Le Roy and Jarrett Field have a preview at Cornell Law School’s Legal Information Institute. In his first Supreme Court opinion, Justice Brett Kavanaugh wrote for...
Tags: Supreme Court, Law, Washington Post, Washington, Court, America, Bloomberg, Cnn, New York Times, New Orleans, Fox News, Republican, Economist, Hyatt, Trump, Round-up


The justices return, without Ginsburg or any new grants (Updated)

[Editor’s Note: This post was updated to cover the four cases in which the Supreme Court asked the U.S. solicitor general to file briefs.] The justices returned to the bench today for the first arguments of the new year. Justice Ruth Bader Ginsburg, who had surgery on December 21 to remove two cancerous growths from her lungs, was not on the bench this morning; a court spokeswoman indicated that she would still participate in today’s cases based on the briefs and transcripts. The justices issued...
Tags: Texas, Featured, Supreme Court, Law, Virginia, New York City, Court, Georgia, Indiana, United States, Citigroup, Argentina, Ohio, Atkins, Lgbtq, Ruth Bader Ginsburg


Terms of Your Teaming Agreement Matter

These days in construction, and other pursuits, teaming agreements have become a great method for large and small contractors to work together to take advantage of various contract and job requirements from minority participation to veteran ownership.  With the proliferation of these agreements, parties must be careful in how they draft the terms of these agreements.  Without proper drafting, the parties risk unenforceability of the teaming agreement in the evewnt of a dispute. One potential pit...
Tags: Law, Virginia, Court, Construction, Air Force, Contracts, Beacon, Richmond VA, Eastern District of Virginia, Construction Law, Virginia Construction Attorney, Business of Construction, Virginia Construction Mediator, eastern district of Va, Teaming Agreement


"By 2039, the Supreme Court basically doesn’t matter anymore. It’s just wallpaper."

"We have very fanciful ideas about a protective, progressive Supreme Court, and that is almost entirely a function of a chunk of time in the 1960s and ’70s. The truth is, for almost all of history, the Court was protecting monied business interests at the expense of minorities. And we survived. But from the 1960s and ’70s, progressives got this notion that the Court was going to save us. More recently, Democrats thought we were winning because of the Obergefell gay-marriage case. But actually, w...
Tags: Same-sex Marriage, Supreme Court, Law, Court, Robots, The Future, Masturbation, Solitude, Dahlia Lithwick, Ann Althouse, Lithwick, Sex Tools, Kate Julian, Supreme Court?Well


An Uber Decision on Arbitration Clauses

Rideshare companies like Uber have already completely transformed the transportation industry, but they are not without their detractors. As I first mentioned in 2017, a class action launched against the company, and has recently made its way to the Ontario Court of Appeal. The Superior Court motion decision, summarized on Slaw here, relied on the Arbitration Act, 1991, the International Commercial Arbitration Act, 2017, and case law such as Seidel v. TELUS Communications Inc., Wellman v. TELUS ...
Tags: Uber, Law, Court, US, Chicago, Esa, Philippines, Netherlands, Amsterdam, Union, Court of appeal, Ontario, Ministry, Wallace, Davidson, Davies


2H 2018 Quick Links, Part 2 (Trademarks)

*  Chanel, Inc. v. Wgaca,  2018 U.S. Dist. LEXIS 158077 (SDNY Sept. 14, 2018): Chanel’s amended complaint plausibly alleges that WGACA’s use of the hashtag #WGACACHANEL infringes Chanel’s trademarks. It alleges that WGACA conjoined its acronym with the Chanel trademark to create the impression that WGACA is affiliated with Chanel or is an authorized Chanel retailer…. WGACA’s Chanelbranded items would be readily identifiable as Chanel without the #WGACACHANEL hashtag and the multiple uses of Cha...
Tags: Amazon, Law, Congress, Court, Marketing, Brookfield, Coachella, Chanel, TNT, Domain Names, Smith, Taylor, Trademark, Carter, Twitter Inc, Ninth Circuit


Supreme Court grants cert on vagueness challenges to 924(c) provision in wake of Johnson and Dimaya

As detailed in this new order list, the US Supreme Court today granted certiorari in a number of new cases.  The cases involving Maryland and North Carolina partisan-gerrymandering are sure to get the most attention, but criminal law fans should be excited about the grant in US v. Davis, No. 18-431, in which the feds petitioned for review of this question: Whether the subsection-specific definition of “crime of violence” in 18 U.S.C. 924(c)(3)(B), which applies only in the limited context of a ...
Tags: Maryland, Supreme Court, Law, Court, US, United States, Davis, Johnson, North Carolina, US supreme court, Douglas A Berman, Dimaya


Friday round-up

Briefly: Tony Mauro reports at Law.com that “Justice Samuel Alito Jr., who until now recused himself in a pending copyright case, Rimini Street Inc. v. Oracle USA Inc., will participate after all”; “[b]ecause of a family inheritance several years ago, Alito and his wife have had holdings in numerous corporations, unlike most other justices,” [and Alito] has sold several of the stocks over time, often in anticipation of an oral argument that posed a conflict of interest.” At Rewire.News, Jessica...
Tags: Google, Usa, Supreme Court, Law, Court, Bloomberg, Tennessee, Trump, Round-up, Frank, U S Supreme Court, Whitaker, Blair, Roberts, Fifth Circuit, Alito


Argument preview: When has registration of a copyright claim “been made”?

Fourth Estate v. Wallstreet.com is one of two copyright cases on the Supreme Court’s January argument calendar. (The other case, Rimini Street v. Oracle, will be argued on January 14.) Both cases pose narrow questions of statutory interpretation. Fourth Estate gives the court the opportunity to resolve a longstanding conflict in authority over the meaning of the phrase “registration of the copyright claim has been made” in Section 411(a) of the copyright statute. Copyright protection is automa...
Tags: Featured, Supreme Court, Law, Congress, Court, United States, Oracle, Copyright Office, The Supreme Court, SG, Muchnick, Fourth Estate, Rimini Street, Wallstreet, Merits Cases, Reed Elsevier


2H 2018 Quick Links, Part 1 (Copyright)

* Capitol Records LLC v. ReDigi, Inc., No. 16‐2321 (2d Cir. Dec. 12, 2018): “ReDigi version 1.0’s process for enabling the resale of digital files thus inevitably involves the creation of new phonorecords by  reproduction, even if the standalone digital file is deemed to be a 2 phonorecord.  As for the argument that, as ReDigi copies a packet of data, it deletes the equivalent packet in the user’s device so that the amount of data extant in the transfer process remains constant, this does not re...
Tags: Apple, Amazon, Law, Youtube, Ebay, Wikipedia, Trust, Court, Copyright, Johnson, Viacom, Bmg, Gray, Hearst, CBS Corporation, Perry


Google Photos Defeats Privacy Lawsuit Over Face Scans–Rivera v. Google

This case provides a glimpse into the legacy of the Supreme Court’s Spokeo decision on the injury-in-fact requirements for Article III standing in federal court. When it was issued, I called Spokeo a “jurisprudential clusterfuck.” Indeed, the subsequent caselaw has been messy–including this case! Google Photos automatically creates “face templates” from uploaded photos and then lets the uploading user sort the photos by face. The court assumes, without deciding, that the face templates and asso...
Tags: Google, Facebook, Supreme Court, Law, Court, Illinois, Google Photos, Shutterfly, Privacy/security, Don, Rivera, Google Inc, Patel, Northern District of Illinois, Publicity/Privacy Rights, Spokeo


Top ten developments in international law in 2018

This year was, once again, one of great political turmoil. The international legal order is not immune from the impact of the rise of populism and increasingly strained relations between many of the world’s most powerful states. A positive view is that we are witnessing a period of global re-adjustment. A more negative take is that there is a real risk of the fabric of the international legal order, created so carefully in the aftermath of the First and Second World Wars, unravelling. One of thi...
Tags: Amazon, Europe, Books, UK, Featured, Human Rights, Supreme Court, Law, Saudi Arabia, China, Russia, Israel, Court, US, Jerusalem, Tel Aviv


Summaries Sunday: OnPoint Legal Research

One Sunday each month OnPoint Legal Research provides Slaw with an extended summary of, and counsel’s commentary on, an important case from the British Columbia, Alberta, or Ontario court of appeal. Clancy v. Clancy, 2018 BCCA 448 AREAS OF LAW: Summary judgment; Family law; Formal order; Want of jurisdiction ~The Court of Appeal has no jurisdiction to hear an appeal in which the appellant takes no issue with the order made in the court below, but contends that it should have been granted for rea...
Tags: Law, Court, Court of appeal, Ontario, Appellant, Garson, Clancy, Respondent, BC Supreme Court, Summaries Sunday, OnPoint Legal Research, British Columbia Alberta, Leask, John Clancy, Larry Kahn, Anne Marie Clancy


Troubled Waters

An Iowa attorney recently was reprimanded by the Attorney Disciplinary Board for failing in his duties as local counsel for an Illinois lawyer The Court first notes the clear inference that agreeing to be an Iowa co counsel with Paul... [Author: Legal Profession Prof]
Tags: Law, Court, Iowa, Illinois, PAUL, Legal Profession Prof, Bar Discipline & Process


David M. O’Brien (1951-2018): Noted political scientist and Supreme Court scholar

The Supreme Court is defined, in part, by court-watchers – those who chronicle its workings and analyze its jurisprudence. Our understanding of the court depends on scholars such as David M. O’Brien, the late Leone Reaves and George W. Spicer Professor at the University of Virginia’s Department of Politics. O’Brien, who died from lung cancer on December 20 at the age of 67, was among the most noted Supreme Court scholars of his time. Born on August 30, 1951, O’Brien grew up in Southern Califor...
Tags: Featured, Supreme Court, Law, Washington Post, Court, University Of Virginia, University Of California, Santa Barbara, Southern California, Board, Brown, U S Supreme Court, Harvard Law Review, Hialeah, Postwar Japan, O'Brien


Notable pipeline provisions in FIRST STEP Act in the wake of litigation history surrounding FSA of 2010

Long-time readers surely recall the legal uncertainty that followed the last congressional reduction of severe mandatory sentencing provisions in the Fair Sentencing Act of 2010 with respect to "pipeline" cases, i.e., cases in which offense conduct took place, but a sentence had not yet been imposed, before the enactment of the FSA's new crack sentencing provisions.  This legal uncertainty made it all the way up the Supreme Court in Dorsey v. US, 567 U.S. 260 (2012), and here is how the Court's ...
Tags: Law, Congress, Court, US, SEC, Douglas A Berman, Supreme Court in Dorsey


More on Fraud, Opinions and Contracts

Originally posted 2013-09-20 09:00:39. Image via Wikipedia Here at Construction Law Musings, I have discussed the interaction between fraud and contracts on many occasions.  Recently, I got to put my advice into action.  I am counsel for the plaintiff in the matter of Environmental Staffing Acquisition Corp. v. Beamon, et. al. in the Portsmouth, VA Circuit Court and recently got a (.pdf) right on point that was recently featured in Virginia Lawyers Weekly. The basic facts are these.  ...
Tags: Business, Law, Virginia, Court, Fraud, Contract, Portsmouth, Construction, Contracts, Circuit Court, Richmond VA, Beamon, Construction Law, Breach Of Contract, Plea, VCPA


Monday round-up

Amy Howe reports for this blog, in a post that first appeared at Howe on the Court, that on Saturday “the Supreme Court was asked to step into a clash over a grand jury subpoena that is widely believed to be related to Special Counsel Robert Mueller’s investigation into interference in the 2016 election,” when, “[i]n a filing made under seal, an unnamed corporation … apparently asked the justices to block the subpoena after the lower courts refused to do so”; on Sunday Chief Justice John Roberts...
Tags: Supreme Court, Law, Court, Bloomberg, Cnn, United States, New York Times, Fox News, Npr, Ruth Bader Ginsburg, Trump, Round-up, John Roberts, Larrabee, The Supreme Court, Roberts



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