Yesterday’s argument in County of Los Angeles v. Mendez was, in a word, unsatisfying. The question of governmental liability for a law enforcement shooting of innocent individuals is extremely fact-intensive, and the law in this area is unsettled enough that assembling a majority for general Fourth Amendment rules on this record presents quite a challenge. It is possible to imagine some general statements that the court could agree on, but when it comes time to either affirm or reverse the specific award here, the justices might well split 4-4. Accurate tea-leaf reading seems impossible based on this argument transcript; the justices themselves seemed undecided. But in the end, at least four justices may view a tie as the fairest result on this record: The damages award for the sympathetic plaintiffs here would be left in place, without a divided Court issuing conflicting opinions on the law.

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Thursday round-up

By on Mar 23, 2017 at 7:36 am

Yesterday the court heard oral argument in two cases. The first was County of Los Angeles v. Mendez, a Fourth Amendment case stemming from a police search that resulted in a shooting. Ryan Lockman discusses the case in an interview on WNYC’s The Takeaway. Yesterday’s second argument was in Water Splash v. Menon, which involves service of process under the Hague Service Convention.

The court also issued three opinions yesterday. In Czyzewski v. Jevic Holding Corporation, the court held 6-2 that structured bankruptcy dismissals must follow priority rules unless creditors consent. Daniel Bussel analyzes the opinion for this blog. At his eponymous blog, Ross Runkel writes that in “sweeping terms, the Court rejected the notion that there could be ‘rare cases’ in which courts could find ‘sufficient reasons’ to disregard priorities,” and warns that all “bankruptcy lawyers will need to pay close attention to this case.” In Star Athletica, LLC v. Varsity Brands, Inc., a 6-2 court held that a feature of a useful article is copyrightable if it can be perceived as a separately protectable work. Ronald Mann has this blog’s opinion analysis. In The National Law Journal (subscription or registration required), Tony Mauro reports that the opinion “included four pages of colored drawings and photographs—three of them inserted by dissenting Justice Stephen Breyer—as well as 10 pages of reproduced copyright registration forms,” noting that the court “rarely illustrates its decisions,” but that “when it does, the images can draw criticism as shiny distractions that distort or confuse the facts of the case.”

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Czyzewski v. Jevic Holding Corp. is the latest battleground in a 150-year struggle over whether senior creditors whose liens exhaust a bankruptcy estate, and junior creditors or equity holders with control over the bankruptcy proceeding, can combine to use bankruptcy processes to implement a division of value that skips over otherwise out-of-the-money intervening creditors over their objection. In the landmark  case of Northern Pacific Railway Company v. Boyd, the court created the “absolute priority rule” to prevent just that eventuality in federal equity receiverships over 100 years ago, before any federal statutory reorganization procedure existed. Ever since and all along, bankruptcy practitioners struggling to make deals and solve practical problems have creatively fought, evaded, and sought to limit the scope of that prohibition. The most fashionable current step in this never-ending bankruptcy dance has been the “structured dismissal.” The court’s opinion in Jevic puts the brakes on this device by making clear that priority deviations implemented through non-consensual structured dismissals are not permitted.

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Petition of the day

By on Mar 22, 2017 at 11:23 pm

The petition of the day is:


Issue: Whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.

It’s the kind of case my colleagues who teach copyright law might spend an entire class session analyzing, pondering the pros and cons of copyright protection for industrial designs. In a rare moment for the Roberts Court, the opinion in Star Athletica v Varsity Brands addressed that question broadly and categorically, passing up every opportunity to narrow or confine its ruling.

The case involves cheerleader uniforms designed by Varsity Brands, the market leader, and copied by Star Athletica. The legal problem is whether copyright protection, which extends naturally not only to works of music and literature, but also to “pictorial, graphic, or sculptural” works, protects the particular combination of chevrons, zigzags and stripes that characterizes Varsity’s uniforms. Star Athletica argues, with considerable support from lower courts and commentators, that this kind of “industrial” design, largely influenced by utilitarian considerations, does not warrant copyright protection, which is best reserved for wholly aesthetic creations. The majority opinion of Justice Clarence Thomas, though, has nothing to say about concerns of competition policy. Rather, as you might expect from a Thomas opinion, the text addresses the topic wholly as a matter of statutory interpretation. Working in that vein, it reads the statute as giving remarkably broad protection to industrial designs.

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We live-blogged the third day of the Senate Judiciary Committee’s hearing on the nomination of Judge Neil Gorsuch to the Supreme Court. The transcript is available at this link.

Today the Senate Judiciary Committee is holding the third day of its hearing on the nomination of Judge Neil Gorsuch to the Supreme Court. Early coverage of today’s proceedings, which has so far featured round two of the senators’ questioning and will feature a third round this evening, comes from Adam Liptak, Charlie Savage, Matt Flegenheimer and Carl Hulse of The New York Times, Lawrence Hurley and Andrew Chung of Reuters, various contributors at NPR, Elise Viebeck, Robert Barnes and Ed O’Keefe of The Washington Post, Mark Sherman and Erica Werner of the Associated Press, Richard Wolf of USA Today, Seung Min Kim and Josh Gerstein of Politico, Debra Cassens Weiss of the ABA Journal, Matt Ford of The Atlantic and Ashley Killough of CNN.

Commentary on the hearings comes from Ilya Shapiro for Washington Examiner, Elizabeth Wydra for The Huffington Post, J. Douglas Smith for The Daily Beast, Lisa Keen of Keen News Service, Jonathan Bernstein at Bloomberg, the editorial board of USA Today and Ronald Cass at USA Today. Ian Millhiser of ThinkProgress discusses the court’s ruling this morning in Endrew F. v. Douglas County School District, which overturned a decision by the U.S. Court of Appeals for the 10th Circuit that employed a legal standard Gorsuch had applied in a previous 10th Circuit opinion.

Damon Root of Reason’s Hit & Run Blog and Ilya Shapiro and Frank Garrison for the Cato Institute look at aspects of Gorsuch’s jurisprudence.

The argument next Wednesday in Honeycutt v. United States presents a seemingly simple statutory question. The federal forfeiture statute for narcotics conspiracies requires that a convicted defendant be ordered to forfeit the “proceeds the person obtained” from the crime. May a federal court using this statute order a defendant to forfeit proceeds that he did not “obtain,” under a theory of joint and several liability?

Terry Honeycutt argues that obtain means obtain, and that “with the text so clear, the Court need go no further.” But the government notes that nine federal courts of appeal have adopted the broader “joint and several liability” rule since the forfeiture statute was adopted in 1984 (although the U.S. Court of Appeals for the District of Columbia Circuit ruled the other way in 2016); and that substantively, the doctrine of Pinkerton v. United States has long held conspirators liable for foreseeable crimes committed by their co-conspirators on a familiar “partnership” theory.

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Argument transcripts

By on Mar 22, 2017 at 2:55 pm

The transcript in County of Los Angeles v. Mendez is here; the transcript in Water Splash, Inc. v. Menon is here.

Posted in Merits Cases

Wednesday round-up

By on Mar 22, 2017 at 7:42 am

This morning the court will hear oral argument in two cases. The first is County of Los Angeles v. Mendez, a Fourth Amendment case stemming from a police search that resulted in a shooting. Rory Little previewed the case for this blog. At Cornell University Law School’s Legal Information Institute, Laurel Hopkins and Eugene Temchenko also provide a preview.

The second case on the argument docket is Water Splash v. Menon, which involves service of process under the Hague Service Convention. Charlotte Garden had this blog’s preview. Cassandra Desjourdy and Weiru Fang preview the case for Cornell. At Letters Blogatory, Ted Folkman predicts a unanimous ruling for Water Splash, because its reading of the relevant provision “is at least a permissible reading,” and because “it is the reading of all the other parties to the Convention and of the Executive Branch.”

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