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Opinion analysis: Interesting 5-4 coalition holds that the ACCA reaches robberies that require force sufficient to overcome resistance

In the first 5-4 decision of this term (Stokeling v. United States), the Supreme Court ruled yesterday that state robbery statutes that require “resistance … overcome by physical force,” even if the force used is “minimal,” are sufficient to satisfy the prior-conviction requirement of the federal Armed Career Criminal Act. This result was not as surprising as the grouping of the justices. Justice Clarence Thomas’ majority opinion was joined by Justice Stephen Breyer, while Justice Sonia Sotomayo...
Tags: Florida, Featured, Supreme Court, Law, Congress, United States, Davis, Johnson, Thomas, Sonia Sotomayor, Antonin Scalia, John Roberts, Scalia, U S Court of Appeals, Sotomayor, Stephen Breyer


Relist Watch

John Elwood reviews Monday’s relists. I’m today, so I’m going to be more summary than usual. The April calendar already appears to have a full complement of 12 cases, but the court in theory could add to it with this Friday’s grants. Admittedly, if it does so, petitioners won’t have the full 30 days to file reply briefs before oral argument. After this Friday, the court’s next scheduled conference isn’t until February 15 – almost a month from now. And any cases granted at that conference will ...
Tags: Texas, Featured, Supreme Court, Law, Congress, Virginia, New York City, Freedom, Alabama, Indiana, Dhs, United States, House Of Representatives, Kansas, Louisiana, Nielsen


Here's the clip from Colbert's talk show last night, where Gillibrand announced that she was forming an exploratory committee.

TONIGHT: @SenGillibrand stops by @colbertlateshow to announce that she is forming an exploratory committee to run for President of the United States! #LSSC pic.twitter.com/vPUpF1gs8z — The Late Show (@colbertlateshow) January 15, 2019 Colbert asked her the classic question (the one Ted Kennedy famously flubbed), "Why do you want to be President of the United States?" The question was, it appears rather obviously, planned, and even if it wasn't, it was utterly predictable. Ever since Ted's scr...
Tags: Law, Washington, Ted, United States, Colbert, The Colbert Report, Ted Kennedy, Gillibrand, Ann Althouse, Ralph L, Kirsten E. Gillibrand, Ralph (the commenter


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


"Top Trends in State Criminal Justice Reform, 2018"

The title of this post is the title of authored by Nicole Porter for The Sentencing Project which highlights significant criminal justice policy changes at the state level in 2018. Here is how the document gets started: The United States is a world leader in incarceration rates and keeps nearly 7 million persons under criminal justice supervision. More than 2.2 million are in prison or jail, while 4.6 million are monitored in the community on probation or parole. Changes in sentencing law and...
Tags: Law, United States, Douglas A Berman, Nicole Porter


Likelihood of Confusion for Two Businesses In Operation for 40 Years

In re Guild Mortgage Company (Fed. Cir. 2019) Guild Mortgage’s above-pictured mark was refused registration was refused based upon a Trademark Trial & Appeal Board (TTAB) conclusion of a likelihood of confusion with the registered mark “GUILD INVESTMENT MANAGEMENT.” On appeal, the Federal Circuit has vacated that decision — holding that the TTAB “failed to consider relevant argument and evidence directed to DuPont factor 8.” Under Lanham Act § 2(d), the USPTO refuses to register marks that are ...
Tags: Law, California, United States, DuPont, Patent, Southern California, Fed, Board, Guild, The Board, Federal Circuit, Pittsburg Kansas, Ttab, Guild Mortgage Company Fed, Stone Lion Capital Partners LP, Lion Capital LLP


Opinion analysis: Justices uphold arbitration exemption for transportation workers in rare victory for arbitration opponents

Arbitration month at the Supreme Court continued this morning with the unanimous decision in New Prime Inc. v. Oliveira – following by a single week the unanimous decision in Henry Schein v. Archer & White Sales. New Prime, though, is anything but business as usual: Justice Neil Gorsuch’s opinion for a unanimous court rejects a claim for arbitration for the first time in a string of more than a dozen of the Supreme Court’s cases stretching back more than a decade. Indeed, I doubt the court has r...
Tags: Featured, Supreme `` Court, Law, Congress, United States, Ruth Bader Ginsburg, Thomas, Henry Schein, John Roberts, Ginsburg, Kavanaugh, INS, Oliveira, Gorsuch, Merits Cases, Chadha


Argument analysis: When is the government not really the government for immunity from tort liability?

In Thacker v. Tennessee Valley Authority, the government contends (and the lower courts agreed) that the TVA should be immune from tort liability to shield executive policy-making, even when the TVA is engaged in arguably commercial activity. The petitioner, Gary Thacker, argues that an entirely different analysis applies to the TVA, which Congress has made broadly subject to suit without expressly preserving policy immunity. Ann O’Connell Adams, assistant to the U.S. solicitor general (Art Li...
Tags: Featured, Supreme Court, Law, Congress, United States, Adams, Sonia Sotomayor, TVA, John Roberts, Roberts, Alito, Rouse, Tennessee River, Sotomayor, Stephen Breyer, Breyer


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


Spotlighting continuing important debates over marijuana, mental illness and violence

Regular readers know I am quite interested in the intersection of marijuana reform and broader criminal justice issues (which partially accounts for why I have this other blog and this academic center).  So, it should come as no surprise that I have been following with interest the discussions and debates being stirred up by Alex Berenson's new book, "Tell Your Children: The Truth About Marijuana, Mental Illness, and Violence."  The publisher's page about the this book highlights reasons why it ...
Tags: Law, United States, New York Times, Uruguay, Malcolm Gladwell, Marshall Project, AG, Berenson, Douglas A Berman, William Barr, Alex Berenson


"'Well, well, well,' went the general line in the Russian media, 'look what we have here.'"

I guess that's a pretty rough translation, printed in "Fake News as ‘Moral Imperative’? Democrats’ Alabama Move Hints at Ugly 2020" by Jim Rutenberg in the NYT.  The Russian media, we're told, "were downright gleeful over new reports that a group of Democrats had used online disinformation in the campaign against Roy Moore, the Republican candidate for Senate in Alabama in 2017."Their reaction was understandable, given the news that American political operatives had tried the same kind of troll ...
Tags: Law, Senate, Russia, Alabama, United States, Roy Moore, Donald J Trump, Ann Althouse, Jim Rutenberg, Fake News, Alabama Move Hints


No action on blockbuster cases

This morning the Supreme Court released another set of orders from the justices’ private conference last week. On Friday, the justices announced that they would add eight cases from that conference to their docket. Today’s list did not grant review in any new cases, but it was perhaps most significant for what it did not do: The justices did not act on a long list of high-profile cases that they considered last week, involving everything from abortion to the Trump administration’s ban on service...
Tags: Texas, Featured, Supreme Court, Law, Kentucky, New York City, Indiana, United States, Lgbtq, White, Trump, U S Supreme Court, Toshiba Corp, Moore, Michaels, Howe


"The president of the United States has many faults, but let’s not ignore this one: He cannot write sentences."

"If a tree falls in a forrest and no one is there to hear it … wait: Pretty much all of you noticed that mistake, right? Yet Wednesday morning, the president did not; he released a tweet referring to 'forrest fires' twice, as if these fires were set by Mr. Gump. Trump’s serial misuse of public language is one of many shortcomings that betray his lack of fitness for the presidency. Trump’s writing suggests not just inadequate manners or polish—not all of us need be dainty—but inadequate thought. ...
Tags: Comics, Supreme Court, Law, White House, United States, Jane Austen, Random House, Hemingway, Spelling, Wilson, Trump, John Keats, John Irving, Ernest Hemingway, Scott Fitzgerald, Andrew Jackson


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


Non Sequiturs: 01.13.19

* A happy 200th birthday to Cravath, which celebrates its bicentennial in 2019 (and which has launched a sharp-looking, historically rich microsite for the occasion). [Cravath/200] * According to Dayvon Love, "the policy response from mainstream political institutions and the Democratic Leadership in Maryland to the issue of gun violence and homicide in the Black community is mired in racism." [Leaders of a Beautiful Struggle] * The current Term of the Supreme Court doesn't boast many blockbus...
Tags: Florida, Crime, Maryland, Supreme Court, Law, Scotus, Copyright, Racism, United States, Intellectual Property, Government Shutdown, Shutdown, Capitol Records, Florida Supreme Court, Adam Feldman, Grady


"With the start of the new year, Belgium became the latest European country to ban traditional Jewish and Muslim animal slaughtering practices."

"The move was applauded by animal rights activists but condemned by religious leaders who see the ban as a threat to their communities. At issue is whether to allow religious exemptions to European Union rules that state animals must be knocked out before they are slaughtered, which supporters say is more humane. The United States has similar regulations, but allows for religious exemptions.... Religious leaders say minimizing an animal’s pain has always been central to their traditions, and a r...
Tags: Meat, Law, Nazis, European Union, United States, Animal Cruelty, Belgium, Muslim, North American Meat Institute, Religion And Government, Ann Althouse


Confusing headline of the day: "Nancy Pelosi Spanks the First Brat."

Hint: It's Maureen Dowd's new column.It caught my eye because here in Wisconsin, a brat — rhymes with "squat" — is a very popular sausage. So what's "spanking the brat"? Seems like another one of the many euphemisms for masturbation.But the NYT is not Wisconsin, so it must be brat — rhymes with "slat" — "a child, so called in contempt" (to quote Samuel Johnson's "Dictionary of the English Language"). What brat would Nancy Pelosi be spanking? I'm thinking Alexandria Ocasio-Cortez or maybe Rashida...
Tags: Headlines, Law, Hillary Clinton, United States, House, Language, Wisconsin, Brats, Nancy Pelosi, Rhetoric, Motherhood, Hillary, Trump, Sartre, Samuel Johnson, Pelosi


"Mandatory minimum sentencing policies and cocaine use in the U.S., 1985–2013"

The title of this post is the title of this notable new research published in the journal BMC International Health and Human Rights and authored by Lauryn Saxe Walker and Briana Mezuk. Here is its abstract: Background As of May 2017, the United States federal government renewed its prioritization for the enforcement of mandatory minimum sentences for illicit drug offenses.  While the effect of such policies on racial disparities in incarceration is well-documented, less is known about the ext...
Tags: Law, United States, Douglas A Berman, ADAA, BMC International Health and Human Rights, Lauryn Saxe Walker, Briana Mezuk


"Prisoner-to-Public Communication"

The title of this post is the title of this recent article just posted to SSRN authored by Demetria Frank.  Here is its abstract: The pervasive problem of over-incarceration in the United States is in part due to lack of correctional facility accountability to the public, and public lack of access to the prisoner experience. In light of the incessant persistence of over-incarceration and “hands off approach” taken by courts in prison administration, this article proposes an unqualified and unfe...
Tags: Law, United States, Douglas A Berman, Demetria Frank Here


New commentary at The American Conservative makes the case for "Why Conservatives Should Oppose the Death Penalty"

In prior posts here and here and here, I highlighted a series of lengthy articles in The American Conservative that were part of "a collaborative series with the R Street Institute exploring conservative approaches to criminal justice reform."   These folks are at it again with this new lengthy essay titled simply "Why Conservatives Should Oppose the Death Penalty."  The extendded essay, authored by Arthur Rizer and Marc Hyden of R Street Institute, merits a full read, and here are some excerpts...
Tags: Law, United States, North Carolina, Justice Department, Philly, Douglas A Berman, R Street Institute, Marc Hyden, Arthur Rizer, The American Conservative


Eight new grants, Ginsburg recovery from surgery “on track”

One day after Politico reported that White House officials were preparing for the possible “death or departure” of Justice Ruth Bader Ginsburg, who had surgery in late December to remove two cancerous growths from her lungs, the Supreme Court announced today that there was no evidence of any other cancer, and that the 85-year-old Ginsburg would not require any further treatment. Ginsburg’s recovery from surgery is “on track,” Supreme Court spokeswoman Kathleen Arberg said in a statement, althoug...
Tags: New York, Featured, Supreme Court, Law, California, White House, Usda, United States, South Dakota, United Arab Emirates, Davis, Wisconsin, Lgbtq, Smith, Ruth Bader Ginsburg, Newton


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


Book review: “Ruth Bader Ginsburg”: The evolution of a justice

One might think that the market for treatments of the life and legacy of Justice Ruth Bader Ginsburg would be saturated by now. The past three years alone have seen the release of a carefully curated collection of the justice’s writings, “My Own Words,” a surprise hit documentary about her life and career, “RBG,” and a recent feature film, “On the Basis of Sex,” which focuses on the first sex-discrimination case Ginsburg argued in federal court. Now comes “Ruth Bader Ginsburg: A Life,” by Jane...
Tags: Featured, Sweden, Supreme Court, Law, Virginia, Book Reviews, Brooklyn, United States, Aclu, Bill Clinton, Naacp, Ruth Bader Ginsburg, Columbia Law School, Harvard Law School, Senate Judiciary Committee, American Civil Liberties Union


"Thousands of requests by men to bring in child and adolescent brides to live in the United States were approved over the past decade... In one case, a 49-year-old man applied for admission for a 15-year-old girl."

"The approvals are legal: The Immigration and Nationality Act does not set minimum age requirements. And in weighing petitions for spouses or fiancees, U.S. Citizenship and Immigration Services goes by whether the marriage is legal in the home country and then whether the marriage would be legal in the state where the petitioner lives.... Some victims of forced marriage say the lure of a U.S. passport combined with lax U.S. marriage laws are partly fueling the petitions. 'My passport ruined my l...
Tags: Marriage, Law, New York City, Immigration, America, Teenagers, United States, Pakistan, Time Magazine, U S Citizenship and Immigration Services, Ann Althouse, Naila Amin


Patent File Wrapper Estoppel Comes to Canada

In a move that surprised many in the IP community, a budget bill that received royal assent before the holidays, introduced file wrapper estoppel to Canadian patent law. Bill C-86 (link) included a number of changes to intellectual property legislation including enacting the College of Patent Agents and Trade-mark Agents Act, reforming the Copyright Board, and numerous amendments to the Patent Act, Trade-marks Act and Copyright Act. One of the changes to the Patent Act, allows for the patent fil...
Tags: UK, Supreme Court, Law, US, Canada, United States, Intellectual Property, US supreme court, Patent Office, Locke, SG, Eli Lilly Co, Neuberger, Pollard Banknote Limited, Babn Technologies Corp, Copyright Board


Empirical SCOTUS: Which Supreme Court cases are generating the most interest?

This Supreme Court term, like the past several before it, has been slow out of the gates. It also marks another term with a new justice – this time Justice Brett Kavanaugh. The justices often find consensus both early on in a term and after a largescale change, defining or redefining their jurisprudential boundaries only later. The justices have released five decisions in argued cases so far, all of them free even from concurrences. This is a new high count for unanimous decisions without a conc...
Tags: Google, Supreme Court, Law, Alabama, Indiana, Pepper, United States, New York Times, Madison, Apple Inc, Hyatt, American Legion, Frank, John Roberts, Murphy, Weyerhaeuser


Book Review: Incitement on Trial: Prosecuting International Speech Crimes

Several times each month, we are pleased to republish a recent book review from the Canadian Law Library Review (CLLR). CLLR is the official journal of the Canadian Association of Law Libraries (CALL/ACBD), and its reviews cover both practice-oriented and academic publications related to the law. Incitement on Trial: Prosecuting International Speech Crimes. By Richard Ashby Wilson. Cambridge: Cambridge University Press, 2017. xii, 356 p. Includes bibliography and index. ISBN 978-1-107-10310-8 (h...
Tags: Law, Book Reviews, United States, International criminal court, Cambridge, Nuremberg, North America, Icc, Balkans, Wilson, International Criminal Court ICC, Gibson, International Court, Vojislav Seselj, Seselj, Streicher


Relist Watch Returns

John Elwood reviews the first relists of 2019. Happy New Year and welcome back! Most of D.C. started 2019 nice and slow, enjoying offices (and roads) made quiet by vacations, both planned and unexpected. But not the Supremes. They jumped in with both feet, when most of the lawyering class was still finishing off their fruit baskets. On January 4, the court gave plenary review to the Maryland and North Carolina political-gerrymandering cases and set them for expedited briefing so they could be ...
Tags: Florida, Texas, Featured, Maryland, Supreme Court, Law, Congress, California, Planned Parenthood, Kentucky, Virginia, New York City, Freedom, Alabama, Indiana, United States


A “view” from the courtroom: Comity Central

This term of the court has had plenty of arguably boring cases on statutory interpretation, pre-emption and procedure. But every now and then a low-key case comes along that results in an argument amounting to a heady constitutional seminar. Today’s lone case for argument, Franchise Tax Board of California v. Hyatt, will be one of those. Seth P. Waxman for petitioner (Art Lien) When the court takes the bench, Justice Ruth Bader Ginsburg is again absent as she recuperates from her recent lu...
Tags: New York, Featured, Maryland, Supreme Court, Law, California, Georgia, United States, Hawaii, Social Security, Broadway, Nevada, University Of California Berkeley, Social Security Administration, Ruth Bader Ginsburg, Hall


Reargument preview: A new theory of when local-government takings occur

Photo credit to Pacific Legal Foundation On Wednesday, for the second time this term, the court will hear argument in Knick v. Township of Scott. The case addresses when property owners who allege that a local government has taken their property can bring a lawsuit in federal court. A 1985 precedent, Williamson County Regional Planning Commission v. Hamilton Bank, requires such plaintiffs to first make use of the state’s compensation procedures; only then can they say whether their property h...
Tags: Featured, Supreme Court, Law, Congress, United States, Pacific Legal Foundation, Samuel Alito, Knick, Williamson County, Gorsuch, Merits Cases, Noel Francisco, Brett Kavanaugh, Williamson County Regional Planning Commission, Hamilton Bank, Neil Gorsuch



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