Editor's Note :

Editor's Note :

The court will be issuing opinions on Friday at 10 a.m. We will begin live-blogging at 9:30 a.m.
Our first interim Stat Pack for October Term 2016, prepared by Kedar Bhatia, is available at this link.
The Supreme Court proceedings and orders in the legal challenges to the administration’s entry ban are available at this link.

This morning the Trump administration responded to yesterday’s brief by the state of Hawaii, which urged the justices to stay out of the dispute over the March 6 executive order, often known as the “travel ban,” which put a hold on visas for travelers from six Muslim-majority countries. Although Hawaii argued yesterday that a June 14 memorandum by the president instructing federal agencies to begin a review of the procedures used to vet and approve visa applications undermined the rationale for the travel ban and eliminated any need for the Supreme Court to step in, today the federal government attempted to refocus the debate. Supreme Court review of the lower-court decisions blocking the travel ban is essential, the government argued, because those decisions interfere with the president’s determination that the travel ban is necessary to protect the national security of the United States.

In yesterday’s filing, Hawaii contended that the June 14 memorandum demonstrated that the travel ban is no longer necessary. The provisions of the president’s March 6 executive order requiring the government to review its procedures for vetting visa and refugee applications – the justification for the ban – will go into effect at the end of this week, but the visa and refugee programs themselves remain on hold until the lower courts’ orders are lifted. Because the government’s review will almost certainly have been completed by the fall, when the justices would hear oral argument in the travel-ban litigation, the rationale underlying the ban will no longer exist, and therefore there is no need for the Supreme Court to weigh in on the ban’s legality.

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In its conference of June 22, 2017, the court will consider petitions involving issues such as whether the just-compensation clause prohibits a legislature from limiting how just compensation for a taking is calculated and whether the just-compensation clause allows the jury to value the fee interest taken as if it were still encumbered by a discontinued highway easement; and whether the anti-retaliation provision for “whistleblowers” in the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 extends to individuals who have not reported alleged misconduct to the Securities and Exchange Commission and thus fall outside the act’s definition of “whistleblower.”

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The Return of Relist Watch SelectTM

By on Jun 21, 2017 at 10:59 am

John Elwood reviews Monday’s relists … barely.

Because I am composing (some would say composting) this at 34,000 feet with minimal Internet, even less time, and only as much legroom as I can obtain by storing unused limbs in the overhead bin, this week we’ll once again be favoring our readership with the affordable luxury of Relist Watch SelectTM. For times like this … it’s Relist Watch Select™.

Before proceeding to phone it in flagrantly, let me pause just long enough to note that with the Supreme Court putting partisan-gerrymander case Gill v. Whitford, 16-1161, on its merits docket for next fall as anticipated by last week’s post (and granting Wisconsin its requested stay), October Term 2017 is shaping up nicely after two lackluster terms. (Harris v. Cooper, 16-166, meanwhile, looks like it’s being held for Gill.)

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Wednesday round-up

By on Jun 21, 2017 at 7:26 am

Court-watchers continue to discuss the Supreme Court’s recent announcement that it will hear a high-profile partisan-gerrymandering case from Wisconsin, Gill v. Whitford. In The Economist, Steven Mazie notes that “the justices have looked the other way when oddly drawn districts clump voters based on party rather than race,” and that “[i]f the challenge to hyper-partisan line-drawing succeeds, the shape of districts to come may tighten the link between voters’ preferences and who gets elected.” Nina Totenberg reports on the case for NPR, pointing out that “Republicans have more to lose in next term’s case because they control state legislatures in many more states than the Democrats do, and they stand to maximize that advantage again after the 2020 census.” At the Cato Institute’s Cato at Liberty blog, Walter Olson observes that “the five-member majority to stay the Wisconsin order … suggests that at this point it is the conservative side’s case to lose.” Lisa Soronen discusses the case at the National Conference of State Legislatures’ blog, noting that the “challengers propose a standard for determining the influence of partisan gerrymandering in the district-drawing process” that is based on ‘wasted votes’–votes in each district cast for a non-winning party’s candidate.” At PrawfsBlawg, Daniel Rodriguez questions whether “we [can] truly get our arms around a constitutional jurisprudence that sorts and separates good from bad politics.” Additional commentary comes from John Nichols in The Nation and Ryan Lockman at Lock Law Blog.

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Petition of the day

By on Jun 20, 2017 at 10:30 pm

The petition of the day is:

16-1215

Issue: Whether (and, if so, when) a statement concerning a specific asset can be a “statement respecting the debtor’s … financial condition” within Section 523(a)(2) of the Bankruptcy Code.

Calling the March 6 executive order signed by President Donald Trump, which put a temporary hold on visas for travelers from six Muslim-majority countries, “grossly unlawful,” the state of Hawaii today urged the Supreme Court to sit out the litigation over the legality of the order, popularly known as the “travel ban.” Instead, the state told the justices, they should allow two lower-court orders putting the order on hold to remain in place. After all, the state suggested, even the federal government – which is defending the order in court — “has revealed by word and deed that even it believes” that the travel ban is no longer necessary. Continue reading »

Irina D. Manta is a professor of law and Founding Director of the Center for Intellectual Property Law at the Maurice A. Deane School of Law at Hofstra University. Her trademark and other legal scholarship is available here.

In Matal v. Tam, the Supreme Court finally gave its answer to a question long debated in the intellectual property world: Is a prohibition on registering disparaging trademarks a violation of free speech under the First Amendment? All eight justices who took part in the case (everyone except Justice Neil Gorsuch) concluded that the answer to that question is a resounding yes. As an amicus brief that I joined also explained, the ban on disparaging trademarks is indeed a form of unconstitutional viewpoint discrimination.

Although the outcome of the case is certain to affect the enduring litigation involving the Washington Redskins trademark, the plaintiff in Tam was more sympathetic than the football team. Simon Tam sought to register the name “The Slants” as a way to reclaim a term that had been used to insult members of the Asian–American community for many years. The Supreme Court certainly did not endorse all of Tam’s arguments – such as his attempt to distinguish between “persons” and groups under the Lanham Act – but the main argument that trademarks are private rather than government speech succeeded.

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Lisa P. Ramsey is a Professor of Law at the University of San Diego, and has written about the potential conflict of trademark laws and free speech rights in A Free Speech Right to Trademark Protection? and Increasing First Amendment Scrutiny of Trademark Law.

Owners of trademarks deemed by the government to be disparaging – such as THE SLANTS and REDSKINS – and free speech advocates are celebrating the U.S. Supreme Court’s holding in Matal v. Tam. The Supreme Court evaluated the constitutionality of the disparagement clause of the U.S. federal trademark law, 15 U.S.C. § 1052(a), and the eight justices unanimously agreed this law violates the free speech clause of the First Amendment because the government discriminates based on viewpoint and targets offensive expression with an intent to discourage its use. (Justice Neil Gorsuch did not participate in the consideration or decision of the case.) The court held that Section 1052(a) is a viewpoint-discriminatory law because it denies registration of marks that may disparage persons, institutions, beliefs or national symbols, while allowing registration of words or symbols that are positive or benign – “happy-talk,” per Justice Samuel Alito’s opinion. Laws that discriminate based on viewpoint are subject to constitutional scrutiny unless the regulation involves government speech, and trademark registrations by private parties are not government speech.

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Christine Haight Farley is a professor at American University Washington College of Law who teaches intellectual property law. 

In Matal v. Tam, formerly Lee v. Tam, the court settled certain aspects of First Amendment law while it opened up new issues in trademark law. It is a challenge for the uninitiated to follow a coherent path through the court’s First Amendment jurisprudence. I speak from personal experience as a trademark expert who has tried to make sense of First Amendment law. Free-speech absolutists will of course always find it easy to get to a particular end point. But I found certain questions, such as the approach to commercial speech and the treatment of viewpoint discrimination, to have some frustrating gaps. A First Amendment lawyer therefore will no doubt appreciate the court’s opinion in Tam, as it bears on both of these issues.

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Ned Snow is a professor of law at the University of South Carolina School of Law.

In Matal v. Tam (formerly called Lee v. Tam), the Supreme Court ruled unconstitutional the disparagement clause of the Lanham Act, which prevents registration of marks that employ disparaging names. The linchpin of its opinion is the conclusion that the disparagement clause constitutes viewpoint discrimination. Secondarily, the court relies on the argument that the disparagement clause does not support the government’s interest in regulating speech. As I explain below, these arguments are unconvincing. Finally, the court articulates a broader policy concern of upholding restrictions that directly suppress speech in the commercial marketplace. That concern, I argue, is unfounded for the disparagement clause.

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