Thursday round-up

By on Jan 19, 2017 at 7:44 am

Yesterday the court heard two hours of oral argument. The first hour featured Lee v. Tam, a First Amendment challenge to a government refusal to trademark a disparaging name. Amy Howe analyzes the argument for this blog. Also covering the oral argument in Lee v. Tam are Mark Walsh at Education Week, Daniel Fisher at Forbes, Tony Mauro at Law.com (subscription or registration required), and Robert Barnes at The Washington Post, who reports that a “majority of the Supreme Court seemed highly skeptical” “that the federal government can refuse to register all trademarks that may be disparaging, casting this as the government improperly taking sides in free speech disputes.” Commentary on the argument comes from Erica Goldberg at In a Crowded Theater and Ruthann Robson at the Constitutional Law Prof Blog. Additional coverage of the case comes from Maggie Baldridge at Constitution Daily.

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In 2011, Simon Tam tried to register The Slants, the name of his rock band, as a trademark – a word, name or symbol used to identify a product and to identify its source. Tam had named his band The Slants to bring attention to discrimination against Asian-Americans, but the U.S. Patent and Trademark Office rejected his application. The PTO explained that a provision of the Lanham Act bars the government from approving trademarks that contain “matter which may disparage … persons, living or dead, institutions, beliefs, or national symbols.”

The U.S. Court of Appeals for the Federal Circuit reversed. It agreed that the mark Tam was seeking to register was “disparaging,” but it concluded that the Lanham Act’s ban on the registration of disparaging marks violates the Constitution. The Supreme Court agreed to weigh in last year, and after nearly an hour of oral argument yesterday it seemed poised to agree with the lower court. That could be good news for the Washington Redskins, whose case is now on hold in the U.S. Court of Appeals for the 4th Circuit after the NFL team’s trademarks were cancelled in 2014.

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Petition of the day

By on Jan 18, 2017 at 11:20 pm

The petition of the day is:

16-683

Issues: (1) Whether, for a defamation plaintiff to be deemed a limited-purpose public figure, the defamatory statement must be directly related (or “germane”) to the plaintiff’s voluntary involvement in the particular public controversy; and (2) if the court grants certiorari on the above question, whether a court may grant summary judgment in an actual-malice case on the ground that the plaintiff has not proven that the defendant “actually possessed subjective doubt” about the truth of a story, even if, based on the admissible evidence, a reasonable jury could find that the defendant actually possessed subjective doubt.

When Acting Solicitor General Ian Gershengorn took the lectern today in Ziglar v. Abbasi, he attempted to paint a portrait of déjà vu all over again. The three consolidated cases before the Supreme Court today were brought by a group of Muslim and Arab men who were in the United States illegally and were arrested after the September 11, 2001, attacks; they claim that their rights were violated when they were held in detention centers under unreasonably harsh conditions until they were cleared of any connection to terrorism, even though federal officials knew that they had no connection to terrorism, solely because of their race and ethnicity. According to Gershengorn, today’s cases were simply a reprise of 2009’s Ashcroft v. Iqbal, in which the justices ruled that a complaint filed by another Muslim detainee, alleging that his harsh treatment in prison violated the Constitution, needed to contain enough facts to demonstrate that the officials he was suing had implemented the policy to discriminate: The plaintiffs in today’s cases, Gershengorn contended, were essentially seeking to hold the same government officials responsible for the same conduct. By the end of the hour, it seemed likely that today’s detainee cases will meet a similar fate as that of Javaid Iqbal. Even strong advocacy from Rachel Meeropol, the lawyer representing the detainees, did not appear to be enough to overcome the justices’ reservations about holding government officials personally responsible for their role in implementing policy following a national emergency – particularly when Justices Sonia Sotomayor and Elena Kagan, two members of the court more likely to be sympathetic to the plight of the detainees, were recused from the case.

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Yesterday, the Supreme Court heard oral argument in Lynch v. Dimaya, a criminal-removal case. The court has taken up several of these in recent years, including Esquivel-Quintana v. Lynch, which the justices will hear next month. Unlike some of the other cases, however, this case involves a constitutional challenge to a criminal-removal provision in the immigration laws, which historically have been held immune from constitutional scrutiny.

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Argument transcripts

By on Jan 18, 2017 at 2:18 pm

The transcript in Lee v. Tam is here; the transcript in Ziglar v. Abbasi is here.

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Wednesday’s lone opinion, Lightfoot v. Cendant Mortgage Corp., firmly rejects the extension of federal jurisdiction over cases involving the Federal National Mortgage Association. Discussion at the oral argument suggested that several of the justices were concerned that a broad rule permitting all Fannie Mae cases to be removed to federal court would flood the district courts with routine disputes better suited for state court. Justice Sonia Sotomayor’s opinion for a unanimous court uses a close reading of Fannie Mae’s charter to avoid that result.

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Relist Watch

By on Jan 18, 2017 at 1:19 pm

John Elwood reviews Tuesday’s relists

There is a point in bleak midwinter when hope is at its lowest ebb and despair at its zenith. I’m talking, of course, about the rerun season that predates the February sweeps. And rerun season is where we find ourselves now.

This week’s conference marks the theoretical “cutoff” for grants that could be argued this term without expedited briefing. But it looks like any new grants at this point will be argued in the fall: Last week’s new relists yielded 16 grants (for 13 hours of oral argument), likely filling up the remaining argument spots for the rest of the current term. Perhaps sensing that they should save their new stuff for the sweeps, the justices this week have given us only a bunch of returning relists. There is one upside to reruns, though: Because the cases are already familiar to our regular readers, it means that once again, we have a flimsy excuse not to provide detailed case descriptions.

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In its conference of January 19, 2017, the court will consider petitions involving issues such as whether Texas’ voter-ID law “results in” the abridgment of voting rights on account of race; whether a plaintiff’s claims arise out of or relate to a defendant’s forum activities when there is no causal link between the defendant’s forum contacts and the plaintiff’s claims; and whether the imposition of a death sentence in the absence of a unanimous jury verdict in support of death violates the Constitution.

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We live-blogged this morning as the court issued opinions.

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