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Interim Stat Pack for October Term 2019

With the 2019-2020 Supreme Court term coming to a close, the discussion among court-watchers continues to focus on Chief Justice John Roberts’ decision-making. Much has been made of his siding with the more liberal justices in striking down a Louisiana abortion law in June Medical Services LLC v. Russo and upholding the Deferred Action for Childhood Arrivals program (at least temporarily) in Department of Homeland Security v. Regents of the University of California. Roberts’ positions in these c...
Tags: Health, Featured, Supreme Court, Law, Hawaii, Louisiana, Donald Trump, Department Of Homeland Security, Ruth Bader Ginsburg, King, Trump, Thomas, Sonia Sotomayor, John Roberts, Roberts, Ginsburg


Opinion analysis: Court holds that “generic.com” marks may be registered trademarks or service marks when consumers do not perceive them as generic

When the digital travel company Booking.com sought to register its domain name as a service mark for hotel reservation services, the U.S. Patent and Trademark office denied registration under a longstanding policy that the combination of a generic term for goods and services with the “.com” suffix did not create a protectable trademark. Booking.com sought review of the PTO’s decision in federal district court, and introduced survey evidence supporting an inference that 74 percent of consumers re...
Tags: Featured, Supreme Court, Law, Ruth Bader Ginsburg, Sonia Sotomayor, Ginsburg, PTO, U S Court of Appeals, U S Patent and Trademark Office, Sotomayor, Stephen Breyer, Breyer, 4th Circuit, Merits Cases, U S Patent and Trademark


Opinion analysis: Court rules that religious schools cannot be excluded from state funding for private schools

In 2015, the Montana legislature created a scholarship program that provided a dollar-for-dollar tax credit for donations to private scholarship organizations. Those organizations used the money to fund scholarships for children to attend private schools – which, in Montana, are primarily religious schools. In 2018, the Montana Supreme Court struck down the tax-credit program, holding that it violated the state constitution’s ban on aid for churches and religious schools. Today the U.S. Supreme ...
Tags: Featured, Supreme Court, Law, Montana, Court, Catholic, Ruth Bader Ginsburg, Thomas, Sonia Sotomayor, U S Supreme Court, John Roberts, Institute for Justice, Stillwater, Roberts, Howe, Ginsburg


Supreme Court Promotes Weaponization of Generic Domain Names–USPTO v. Booking.com

The USPTO believed that “generic.com” domain names were almost always generic and therefore unregistrable. On that basis, it denied registration for Booking.com. The Supreme Court holds that generic.com domain names aren’t necessarily generic, which means they have the potential to become protectable trademarks and registrable. Justice Ginsburg’s majority opinion holds: “Whether any given ‘generic.com’ term is generic… depends on whether consumers in fact perceive that term as the name of a cla...
Tags: Supreme Court, Law, E-commerce, Uspto, Domain Names, Trademark, Travelocity, Ginsburg, Breyer, Corp, U S Patent Trademark Office, Generic Corp, Generic Inc, Wine Corp


Patent Law and Booking.Com: as a whole or by parts

Patent scholars and attorneys will recognize the battle in https://t.co/7wn2gtAbSC between the majority (Justice Ginsburg) and dissent (Justice Breyer) looks much the same to the debate over patentable subject matter. As a whole or by parts? — Dennis Crouch (@patentlyo) June 30, 2020 The difference: In trademark law Justice Breyer dissented against the 8-1 majority supported strong IP rights and focused on the booking dot com mark "as a whole" In patent law the 9-0 court agreed with Br...
Tags: Law, Patent, Ginsburg, Breyer, Dennis Crouch


time to register your generic.com

United States Patent & Trademark Office (USPTO) v. Booking.Com B.V. (Supreme Court 2020) [Full Decision PDF] In this trademark case, the USPTO asked the court to implement its “nearly per se” rule that a generic term remains generic even if coupled with a generic top level domain (such as “.com”).  The 4th Circuit sided with BOOKING.COM and the Supreme Court has now affirmed: “[W]e discern no support for the PTO’s current view in trademark law or policy.” Id. According to the majority, the ques...
Tags: Supreme Court, Law, Uspto, Patent, Travelocity, Ginsburg, PTO, Goodyear, Sotomayor, Breyer, United States Patent Trademark Office USPTO, Booking com, Goodyear Rubber Co, Booking Com B V Supreme Court, Goodyear 's India Rubber Glove Mfg Co


Symposium: The simplistic logic of Justice Neil Gorsuch’s account of sex discrimination

Ryan T. Anderson is the William E. Simon Senior Research Fellow at The Heritage Foundation and the John Paul II Teaching Fellow at the University of Dallas. He filed an amicus brief in support of the employers in Bostock v. Clayton County and Harris Funeral Homes v. EEOC, which he then revised into an article for the Harvard Journal of Law and Public Policy. Justice Neil Gorsuch’s majority opinion in Bostock v. Clayton County claims to apply a simple and straightforward test: “An employer violat...
Tags: Featured, Supreme Court, Law, Congress, Ruth Bader Ginsburg, Hopkins, EEOC, John Paul, Ginsburg, Clayton County, Heritage Foundation, Ryan T Anderson, Gorsuch, First Congress, Oncale, Price Waterhouse


Empirical SCOTUS: Interesting meetings of the minds of Supreme Court justices

Unanimity in the Supreme Court used to be the norm. In the early years of court history there were few dissents, and so there was little opportunity to examine differences between the justices outside of how they authored their majority opinions. This practice has changed over the years, and decisions are more frequently divided rather than unanimous. Certain justices are also more likely to vote alongside, or against, one another. Differences in voting agreements can be somewhat staggering. ...
Tags: Supreme Court, Law, United States, Ruth Bader Ginsburg, Thomas, State, Sonia Sotomayor, John Roberts, Roberts, Ginsburg, Alito, William Rehnquist, Sotomayor, Stephen Breyer, Breyer, Elena Kagan


Ask the authors: The long and winding road from shortlisted to selected for female Supreme Court nominees

The following is a series of questions posed by Ronald Collins to Renee Knake Jefferson and Hannah Brenner Johnson in connection with their new book, “Shortlisted: Women in the Shadows of the Supreme Court” (New York University Press, 2020), which tells the untold stories of women that presidents considered as justices for the Supreme Court in the decades before Sandra Day O’Connor’s confirmation. Renee Knake Jefferson is a professor of law and the Joanne and Larry Doherty Chair in Legal Ethics ...
Tags: New York, Featured, Supreme Court, Law, Obama, California, Washington Post, Washington, Senate, White House, Book Reviews, Reagan, Joe Biden, Ronald Reagan, New York Times, Jimmy Carter


SCOTUS for law students: COVID-19 and Supreme Court emergencies

Live teleconference oral arguments have been the most visible sign of the impact of the COVID-19 pandemic on the Supreme Court, and they have prompted copious coverage and commentary. However, the justices have also been busy with a steady flow of cases arising from the pandemic, mostly in the form of emergency stay requests. These COVID-19-related cases have covered a broad array of important rights and liberties, from voting practices to abortion services to immigration issues to prison condit...
Tags: New York, Texas, Featured, Supreme Court, Law, Barack Obama, Austin, Pennsylvania, United States, Wisconsin, Donald Trump, Department Of Homeland Security, Ruth Bader Ginsburg, Republican National Committee, Valentine, Abbott


Empirical SCOTUS: Changes in Supreme Court oral argument format: The good, the bad and the ugly

Editor’s note: This is the first in a three-post series analyzing the Supreme Court’s telephonic oral arguments with live audio instituted due to the COVID-19 pandemic. The first week of the Supreme Court’s telephonic oral arguments provided meaningful data points to compare old-style oral arguments with the new framework. These new arguments were not without mishaps, as justices and attorneys attempted to navigate this unfamiliar terrain. Using Supreme Court transcript data and audio recordings...
Tags: Featured, Supreme Court, Law, Pennsylvania, Department Of Homeland Security, Ruth Bader Ginsburg, Ross, Thomas, Peter, Sonia Sotomayor, Stewart, John Roberts, Blatt, Roberts, Liu, Ginsburg


COVID in prison reaches SCOTUS as it refuses to vacate Fifth Circuit stay ... and Justice Sotomayor has much to say

The Supreme Court this evening denied, via a one-sentence order (available here), a request to vacate a stay that the Fifth Circuit put in place to halt, pending appeal, an injunction requiring a Texas prison take various measure to protect inmates from the dangers of COVID–19.  Though the full court used only one sentence to deny the request to vacate the stay, Justice Sotomayor (joined by Justice Ginsburg) added this statement about that denial that runs seven pages.  Here are a few excerpts f...
Tags: Texas, Supreme Court, Law, Court, States, Ginsburg, District Court, Fifth Circuit, Sotomayor, Douglas A Berman, PLRA


Argument analysis: A marathon debate, and no clear winners, in debate over Trump tax returns

The battle over efforts to obtain President Donald Trump’s tax returns reached the Supreme Court in two oral arguments today. Over a year ago, committees in the Democratic-controlled House of Representatives and a Manhattan district attorney issued subpoenas for the president’s financial records to the president’s longtime accountant and lenders, but the president has tried to block those institutions from complying with the subpoenas. After nearly three-and-a-half hours of oral arguments today,...
Tags: New York, Featured, Supreme Court, Law, Congress, House, House Of Representatives, Bill Clinton, Manhattan, Deutsche Bank, Donald Trump, Ruth Bader Ginsburg, Francisco, Wall, Jones, Clinton


Argument analysis: Justices divided in debate over “ministerial exception”

This morning the Supreme Court heard oral argument in a pair of cases filed by two teachers in southern California, who sued the Catholic schools where they worked after they learned that their contracts wouldn’t be renewed. The Catholic schools have urged the courts to throw out the teachers’ cases, relying on a doctrine known as the “ministerial exception,” which bars ministers from suing churches and other religious institutions for employment discrimination. In 2012, the Supreme Court ruled ...
Tags: Featured, Supreme Court, Law, California, Judaism, Vatican, Catholic, Ruth Bader Ginsburg, Matthew, Thomas, Sonia Sotomayor, John Roberts, 9th Circuit, Fisher, EEOC, Roberts


Opinion analysis: Lawyers should lawyer, judges should judge – The court remands Sineneng-Smith

The Supreme Court today resolved United States v. Sineneng-Smith without reaching the merits of the underlying First Amendment question, instead holding that the U.S. Court of Appeals for the 9th Circuit improperly injected the issue into the case. The court sent the case back for reconsideration based on the claims of the parties. Evelyn Sineneng-Smith had been convicted of violating 8 U.S.C. § 1324(a)(1)(A)(4), which prohibits “inducing or encouraging” unauthorized immigration. She charged non...
Tags: Featured, Supreme Court, Law, United States, Ruth Bader Ginsburg, Thomas, 9th Circuit, Ginsburg, U S Court of Appeals, Clarence Thomas, Stephen Williams, 8th Circuit, Merits Cases, Greenlaw, Sineneng Smith, Evelyn Sineneng Smith


Argument analysis: Justices skeptical of robocall law, but appear to want to keep it

The Supreme Court heard oral argument yesterday in Barr v. American Association of Political Consultants. The case is one of a handful this spring that, because of the pandemic, the court is hearing by telephone with the public listening in. That’s perhaps fitting because the case is itself about phone calls—cellphone robocalls in particular. The question before the justices yesterday was whether the 1991 Telephone Consumer Protection Act’s ban on robocalls to cellphones, or an exception added t...
Tags: Featured, Supreme Court, Law, Congress, America, Ruth Bader Ginsburg, Thomas, Reed, Stewart, John Roberts, Martinez, Ginsburg, Alito, Stephen Breyer, Breyer, Elena Kagan


SCOTUS dings Ninth Circuit panel for its "takeover of the appeal" of convictions for encouraging illegal immigration

I had not been following that closely the Supreme Court's consideration of the immigration case examining the proper reach of 8 U.S.C. §1324, United States v. Sineneng-Smith, No. 19-67 (S. Ct. May 7, 2020) (available here). But the Court's opinion in the case this morning caught my attention because the Justices decided not to decide the merits and instead decided to assail the Ninth Circuit's handing of the case.  Justice Ginsburg's opinion for the Court gives an account of how the Ninth Circui...
Tags: Supreme Court, Law, Court, United States, Williams, Thomas, Court of Appeals, Stevens, Ginsburg, District Court, Ninth Circuit, Douglas A Berman, Los Angeles Police Dept, Washington State Grange, Washington State Republican Party, Sineneng Smith


Argument analysis: After marathon argument, little consensus on future of birth-control mandate exemptions

The Supreme Court heard oral argument this morning in the latest chapter of the battle over the Affordable Care Act’s “birth-control mandate,” which generally requires employers to provide their female employees with health insurance that includes access to certain forms of contraceptives. In 2017, the Trump administration issued new rules that expanded an exemption from the mandate and allowed private employers with religious or moral objections to opt out of providing coverage without any noti...
Tags: Featured, Supreme Court, Law, Obama, Congress, Pennsylvania, United States, New Jersey, Fda, Catholic, Ruth Bader Ginsburg, Francisco, ACA, Hobby Lobby, Paul Clement, Trump


Wednesday round-up

This morning the justices have two cases on their telephonic-argument agenda. First up is Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, a challenge to the government’s expansion of the “conscience exemption” to the Affordable Care Act’s birth-control mandate. Amy Howe previewed the case for this blog, in a post that first appeared at Howe on the Court. Kayla Anderson and Prachee Sawant have a preview at Cornell Law School’s Legal Information Institute. At NPR, Nina Toten...
Tags: Supreme Court, Law, California, Court, Ap, Pennsylvania, United States, Fox News, Npr, Usa Today, Ruth Bader Ginsburg, Baltimore, Usaid, Cornell, Economist, Round-up


Ruth Bader Ginsburg in hospital for treatment on gallbladder

The key liberal US supreme court justice is resting comfortably and will be able to continue to work US supreme court justice Ruth Bader Ginsburg, who has had a series of health scares, has undergone non-surgical treatment for a gallbladder condition and was resting comfortably, a court spokeswoman said.Ginsburg, 87, had a gallstone that had caused an infection and was treated at Johns Hopkins Hospital in Baltimore, a spokeswoman said. Ginsburg was expected to participate in the court’s oral arg...
Tags: Law, US, US news, Ruth Bader Ginsburg, Baltimore, US supreme court, Ginsburg, Johns Hopkins Hospital, Law (US


Ginsburg hospitalized with “benign gall bladder condition”

The Supreme Court that Justice Ruth Bader Ginsburg was treated this afternoon at Johns Hopkins Hospital in Baltimore for a benign gallbladder condition. The 87-year-old justice underwent outpatient tests at Sibley Memorial Hospital in Washington after Monday’s oral argument, the court’s Public Information Office reported, “that confirmed she was suffering from a gallstone that had migrated to her cystic duct, blocking it and causing an infection.” Ginsburg is “resting comfortably,” according t...
Tags: Featured, Supreme Court, Law, Washington, Ruth Bader Ginsburg, Baltimore, Howe, Ginsburg, Johns Hopkins Hospital, What's Happening Now, Public Information Office, Sibley Memorial Hospital


Argument analysis: Justices debate constitutionality of funding condition by phone

In 2013, the Supreme Court ruled, by a vote of 6-2, that a provision in a federal law that requires organizations receiving funds to combat HIV/AIDS to “have a policy explicitly opposing prostitution and sex trafficking” violates the First Amendment when applied to nongovernmental organizations based in the United States. This morning the justices heard oral argument in a case asking them to decide whether the enforcement of the same provision against the foreign affiliates of U.S.-based NGOs al...
Tags: Featured, Supreme Court, Law, Congress, India, United States, Ngos, World Health Organization, Ruth Bader Ginsburg, NGO, Thomas, Sonia Sotomayor, Antonin Scalia, John Roberts, Roberts, Howe


Argument analysis:  A very orderly argument

The Supreme Court’s first telephonic oral argument raised the question whether a business can create a registrable trademark or service mark by combining an unprotectable generic term for the services it offers with the generic top-level domain name “.com.” Trademark law bars registration of generic terms, but it permits the registration of merely descriptive terms if they have acquired enough secondary meaning that the public understands them as trademarks rather than as terms that describe goo...
Tags: Featured, Supreme Court, Law, Congress, Ruth Bader Ginsburg, Ross, Shutterfly, Thomas, John Roberts, Blatt, Roberts, Ginsburg, PTO, U S Court of Appeals, Goodyear, U S Patent and Trademark Office


Will Joe Biden release a SCOTUS short-list and will it excite criminal justice reformers?

As revealed in this way back link, it was mid May 2016 when then-candidate "Donald J. Trump released the much-anticipated list of people he would consider as potential replacements for Justice Scalia at the United States Supreme Court."  Notably, neither Neil Gorsuch nor Brett Kavanaugh appeared on the first Trump SCOTUS short-list, but these names were added later and now they are fixed as part of the Trump Supreme Court legacy. This recent CBS article, headlined "Democrats push Joe Biden to re...
Tags: Supreme Court, Law, Obama, Cbs News, Joe Biden, Cbs, Biden, California Supreme Court, Leondra Kruger, Naacp, Donald Trump, Ruth Bader Ginsburg, Clinton, New York University, Trump, Democratic Party


A “view” from my laptop: Arguments.com

There is much anticipation going into this morning’s argument, historic for being conducted via teleconference because of pandemic concerns and for offering live audio for the first time. On C-SPAN in the hour before the argument, Jeffrey Rosen, the president of the National Constitution Center, is giddy with excitement. “It is indeed a historic morning,” says Rosen. “It’s an experiment for everyone.” The lawyers arguing this morning’s case, U.S. Patent and Trademark Office v. Booking.com B.V., ...
Tags: Featured, News, Supreme Court, Law, Washington Post, Washington, United States, God, Department Of Justice, Ruth Bader Ginsburg, Ross, Container Store, Thomas, Sonia Sotomayor, John Roberts, Blatt


Supreme Court Expands Penumbra of Gov’t Edicts Doctrine: Official Annotations to Code Not Copyrightable

by Dennis Crouch Georgia v. Public.Resource.Org, Inc. (Supreme Court 2020) The State of Georgia claims copyright to its Annotated Official Code (Official Code of Georgia Annotated (OCGA)).  The (e)book includes every Georgia statute and a set of annotations (including summaries of cases and articles discussing the statutes).  The OCGA is created by a state entity – the Code Revision Commission – directed by the state legislature.  LexisNexis actually did the work of writing the annotations, but ...
Tags: Supreme Court, Law, US, Siri, Georgia, Patent, LexisNexis, Thomas, Roberts, Ginsburg, Alito, Breyer, Westlaw, Kavanaugh, Dennis Crouch, Sony Corp of America


Opinion analysis: Supreme Court forecloses judicial review that could save “bad patent claims,” while dissent bemoans a “rough day” for judicial power

The chief justice described the legal issue in Thryv Inc. v. Click-to-Call Technologies LP as “small potatoes,” and with the current national lockdown, he seems even more right today than when he made the comment months ago at oral argument. The technical outcome in the case appears to bear out that description. The Supreme Court held, 7-2, that Section 314(d) of the Patent Act bars courts from reviewing a decision of the Patent Office to institute an inter partes review of an issued patent even...
Tags: Featured, Supreme Court, Law, Congress, Washington, Ruth Bader Ginsburg, Sas, Sonia Sotomayor, Lee, John Roberts, Ginsburg, Cuozzo Speed Technologies, Patent Office, Sotomayor, Clarence Thomas, Samuel Alito


Opinion analysis: With debate over adherence to precedent, justices scrap nonunanimous jury rule

In 1972, the Supreme Court ruled that the Sixth Amendment guarantees a right to a unanimous jury – but that defendants in state trials do not have such a right. Today, by a vote of 6-3, the justices reversed course, holding that the Sixth Amendment establishes a right to a unanimous jury that applies in both federal and state courts. The ruling is significant not only for the inmates who were convicted by nonunanimous juries in Louisiana and Oregon, but also for the extent to which the justices ...
Tags: Featured, Supreme Court, Law, Oregon, Court, Louisiana, Sonia Sotomayor, U S Supreme Court, John Roberts, Howe, Ginsburg, Alito, Sotomayor, Stephen Breyer, Breyer, Louisiana Supreme Court


SCT: Procedural Rules Should Not Unwind the Power of IPR’s to Cancel Bad Patents

by Dennis Crouch Thryv, Inc. v. Click-to-Call Tech (Supreme Court 2020) In this case, the Supreme Court has sided with the PTO and Patent-Challengers — holding that the agency’s decision to hear an IPR challenge is not reviewable on appeal — even if the challenge is based upon the time-bar of §315(b).  According to the court, a ruling otherwise “unwind the agency’s merits decision” and “operate to save bad patent claims.” Read the Decision Here: https://www.supremecourt.gov/opinions/19pdf/18-916...
Tags: Supreme Court, Law, Congress, Washington, Court, Uspto, AIA, Patent, Henry, Lee, Court of Appeals, Roberts, Ginsburg, Alito, PTO, Patent Office


In lengthy split opinion (with interesting splits), Supreme Court holds Sixth Amendment applies to states to require unanimous verdict to convict of serious offense

The Supreme Court this morning handed down a lengthy (surprisingly?) split decision in Ramos v. Louisiana, No. 18–5924 (S. Ct. April 20, 2020) (available here). At issue in Ramos was a set of hlaf-century old SCOTUS precendents in which the Court had held that the Sixth Amendment right to a jury trial, as incorporated against the states, did not require states to adopt a unanimity requirement even for serious cases. Those precedents went up in smoke today, but the break down of votes shows that ...
Tags: Supreme Court, Law, Court, Louisiana, Court of Appeals, Ginsburg, Alito, Sotomayor, Kagan, Ramos, Kavanaugh, Gorsuch, Douglas A Berman, SOTOMAYOR JJ, GINSBURG BREYER, KAVANAUGH JJ



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