News on the Court’s opinion, issued yesterday, in Smith v. City of Jackson [disclosure: Goldstein & Howe, P.C. for petitioners]:
Madeleine Brand of NPR and Emily Bazelon of Slate;
Linda Greenhouse of The New York Times;
Charles Lane of The Washington Post;
Tony Mauro of Legal Times;
Warren Richey of The Christian Science Monitor;
David G. Savage of The L.A. Times;
Nina Totenberg of NPR; and
Hope Yen of the AP in The Boston Globe.

Tony Mauro of Legal Times has this article on how the death of Johnnie Cochran Jr. may affect the Supreme Court case in which he was the respondent.

We’re advised (by a student in Erwin Chemerinsky’s class, who sent along a helpful note) that the Court has called for briefing on the mootness question, with a brief from Cochran’s lawyers in seven days and Tory’s lawyers three days after that.

Here is the most recent stay request in the Schiavo case. UPDATE at 11:18pm: We are advised that the application has been denied.

This week, we received favorable rulings in three cases on which we worked with students. So we want to send our congratulations.

Today, the Supreme Court ruled in Smith v. City of Jackson that the ADEA recognizes disparate impact claims. We did the case with the Stanford Supreme Court Litigation Clinic, in which we are instructors with Pam Karlan. Smith was the Clinic’s first cert. grant (of four in a row). The students on the team at the cert. stage were William Adams and Jen Thomas (who graduated last year) and Mike Abate. The opening merits brief was done over the summer, and Meaghan McLaine (having just graduated from Harvard) worked on the case. Mike Abate and Lee Reeves of Stanford then worked on the merits reply and argument prep.

On Monday, the Supreme Court denied cert. in two cases in which we worked with students on the brief in opposition. These were great cert. denials because both petitions seemingly had a very good chance of being granted. Pam Karlan led the team in No. 04-856, City of Evanston v. Franklin (a case involving the rights of government employees who invoke their right against self-incrimination). The Stanford students on the case were Mike Abate, Rachel Kovner, and Julia Lipez.

The Court also denied cert in No. 04-806, Arkansas v. Jolly (a Sixth Amendment speedy trial case), in which we did the brief in opposition with our winter term class at Harvard. The students on that team were Won Shin and Neel Sukhatme.

Three petitions for certiorari that we did with the students are now pending.

I’ve been asked whether I think that the death of Johnny Cochran will moot this case, a defamation action in which a California state court enjoined the petitioner from saying anything about Cochran. If this were a defamation case in federal court (say, on diversity jurisdiction) and the injunction were that simple, I would say “yes” because the case only seeks prospective injunctive relief and defamation claims do not carry beyond death.

But the case has two complications. First, the injunction is broader. It prohibits Tory from saying anything about Cochran or his law firm, which presumably continues to operate for the time being. (But to add a further layer of complication, this aspect of the injunction was entered despite the fact that the law firm wasn’t even a party to the defamation case.) The injunction also doesn’t say anything about expiration upon Cochran’s death. Indeed, the petitioner flagged this issue in his opening brief.

Second, the Court’s jurisprudence on state court cases becoming moot is muddled. Here is the most recent substantial statement on the issue, from ASARCO v. Kadish, 490 U.S. 605 (1989):

“The Court’s treatment of cases that become moot on review from the lower federal courts, as distinct from those that become moot on review from state courts, is illuminating on this point. In the former situation, the settled disposition of a case that has become entirely moot is for this Court to ‘vacate the judgment below and remand with a direction to dismiss.’ United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950). The power to make that disposition is predicated on our ’supervisory power over the judgments of the lower federal courts,’ which ‘is a broad one.’ Id., at 40. In the latter situation, on review of state judgments, the same disposition is not made. Traditionally, where the entire case had become moot, the Court vacated the judgment below and remanded for such further proceedings as the state court might deem appropriate, as in DeFunis v. Odegaard, 416 U.S. 312 (1974), since the state courts, not bound by Article III, were free to dispose of the case in a variety of ways, including reinstatement of the judgment. More recently, however, the regular practice in the latter situation has been to dismiss the case and leave the judgment of the state court undisturbed, which evinces a proper recognition that in the absence of any live case or controversy, we lack jurisdiction and thus also the power to disturb the state court’s judgment. See, e. g., Kansas Gas & Elec. Co. v. State Corp. Comm’n of Kan., 481 U.S. 1044 (1987); Times-Picayune Pub. Corp. v. Schulingkamp, 420 U.S. 985 (1975).”

My view is that if the Justices are anxious to decide the case, they will say that it is sufficient for Article III purposes that the injunction extends to Cochran’s law firm. That would be consistent with the Court’s suggestion Erie, PA v. Pap’s A.M., 529 U.S. 277 (2000), that the relevant question in these circumstances is whether the petitioner retains an interest in having the state court’s judgment overturned. (Justice Scalia’s dissent in Pap’s has the better of the argument in my opinion.) If the Justices are less certain, they will remand for the California courts to address the scope of the injunction and the possible mootness of the case.

For other views on this question, see these posts of Howard Bashman and Eugene Volokh. Also, see this article by Tony Mauro (via How Appealing). And this Explainer piece on Slate.

The Eleventh Circuit has denied an apparently last-minute attempt to restore the feeding tube for Theresa Marie Schiavo, a brain-damaged Florida woman whose parents have tried repeatedly – and unsuccessfully – to get federal courts including the Supreme Court to come to their aid.

The latest development has brought the first comments by a federal judge that Congress acted unconstitutionally when it passed a special law opening the federal courts to a challenge by Mrs. Schiavo’s parents to state court orders on withdrawal of nutrition and hydration for their daughter – now apparently nearing death.

U.S. Circuit Judge Stanley F. Birch, Jr., argued in an opinion released Wednesday that the new law, Public Law 109-3, is “an unconstitutional infringement on the core principles of separation of powers,” so federal courts could not exercise jurisdiction in the dispute. (Judge Birch was named to the Eleventh Circuit by the first President Bush in 1990.)

His comments came as the Eleventh Circuit, over the dissents of two judges, refused to grant rehearing en banc in the latest case brought by the parents (docket 05-11628). A panel of the Circuit Court last week said the parents could not make a case, and thus were not entitled to any emergency relief. Eleven judges participated in the denial on Wednesday, but only two noted dissents.

(Thanks to Howard Bashman of How Appealing blog for links to the Eleventh Circuit orders.)

News on the Court’s opinion, issued today, in Smith v. City of Jackson [disclosure: Goldstein & Howe, P.C. for petitioners]:
This Reuters report; and
The New York Times has this AP article.

News on yesterday’s oral arguments in MGM v. Grokster:
Chris Anderson has this opinion piece in The L.A. Times;
Chris Baker of The Washington Times;
Emily Bazelon of Slate;
Joan Biskupic of USA Today;
Hiawatha Bray of The Boston Globe;
the AP’s Ted Bridis in The Chicago Tribune;
Jan Crawford Greenburg of The Chicago Tribune;
Linda Greenhouse of The New York Times;
UPI’s Gene J. Koprowski in The Washington Times;
Jonathan Krim of The Washington Post;
Carolyn Lochhead of The San Francisco Chronicle;
Jim Puzzanghera of Knight Ridder;
Jane Roh of Fox News;
David G. Savage of The L.A. Times;
Warren Richey of The Christian Science Monitor;
Nina Totenberg of NPR;
The Washington Post has this editorial piece; and
The L.A. Times has this editorial.

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The Supreme Court, in a sweeping legal victory for older workers, ruled 5-3 Wednesday that employees need not show intentional discrimination against them based on age in order to win a case under federal law. They can prevail on a theory that an employer’s job practice had a more negative impact on older than younger workers, the Court said.

Generally speaking, it is much easier to prove that bias resulted in practical application of an employer’s policy than that the employer specifically intended to discriminate. Thus, the new decision could be a major boon to discrimination cases affecting the rights of more than 70 million workers who are 40 and over — about half of the nation’s civilian work force.

Resolving a conflict among lower courts on the coverage of the Age Discrimination in Employment Act, the Court said that proof of discriminatory intent is not required. But, it said, the scope of ADEA’s protection in disparate impact cases is narrower than under another anti-discrimination law, Title VII of federal civil rights law, because ADEA sometimes allows employers to adopt policies that treat workers differently if those are based on factors other than age.

The Court, in fact, ruled against the specific bias claim in the case of Smith v. City of Jackson (03-1160)– a claim that older police officers and public safety dispatchers were treated unequally under the city’s performance pay plan. Thus, the Court affirmed the Fifth Circuit’s ruling against those 30 individuals, even while overturning the Circuit’s view that ADEA only covers intentional bias in the workplace. (Marty Lederman’s post below provides links to the Court’s opinions in the case.)

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The Court issued opinions today in these three cases:

No. 03-1696, Exxon Mobil Corp.v. Saudi Basic Industries, a Rooker/Feldman decision unanimously reversed and remanded in an opinion written by Justice Ginsburg.

No. 03-9046, Rhines v. Weber, unanimously vacated and remanded in an opinion written by Justice O’Connor. Justice Stevens concurred, joined by Justices Ginsburg and Breyer. Justice Souter also concurred but for one “practical reservation,” also joined by Justices Ginsburg and Breyer.

No. 03-1160, Smith v. City of Jackson, affirmed unanimously, but also deciding, by what is in effect a 5-3 vote, that the Age Discrimination in Employment Act does recognize disparate impact claims. Justice Stevens wrote the principal opinion,which was joined in full by Justices Souter, Ginsburg and Breyer and in large part by Justice Scalia. Justice Scalia concurred in all but Part III and concurred in the judgment. Justice O’Connor, joined by Justices Kennedy and Thomas, concurred in the judgment, but in effect dissented on the central disparate-impact question. The Chief Justice did not participate, but (in light of his previous votes on the question) almost surely would have voted with Justice O’Connor.

This is another in a series of reports on the aftermath of the Supreme Court’s June 28 decision in the case of Rasul/Al Odah v. Bush.

In a ruling almost certainly generating a new controversy headed for higher courts, a U.S. District judge in Washington on Tuesday barred the Pentagon from sending overseas 13 Yemeni nationals being held as terrorist suspects at the U.S. Naval Base in Guantanamo Bay, Cuba. U.S. District Judge Henry H. Kennedy, Jr. issued a preliminary injunction requiring the government to give the detainees’ lawyers 30 days’ advance notice “prior to transporting or removing” any of the individuals from Guantanamo.

This is the latest in a series of District Court orders prompted by recurring reports that the Bush Administration has made plans to ship many of the Guantanamo detainees to other countries, perhaps for further detention or prosecution. The detainees fear that such transfers may put them in countries where they will be tortured; the government has attempted to give assurances that torture would not occur.

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The Supreme Court put on public display Tuesday two conflicting reactions to the apparently widespread practice of downloading copyrighted songs and movies from the Internet: a concern that software makers may be too enthusiastically encouraging the habit, and a concern that copyright law not be made so restrictive that it stifles new surges of technology creativity. The Court also showed some signs of unease with the adequacy in the Internet age of the central precedent at issue, the 1984 ruling in the Sony Betamax case.

In a one-hour hearing on the biggest Internet test case yet, Metro Goldwyn Mayer, et al., v. Grokster, et al. (docket 04-480), a number of Justices seemed attracted to the idea of letting copyright owners go after software developers on a theory that they are “actively inducing” theft of copyrighted works by computer users linked by that software.

Richard G. Taranto, a Washington lawyer for person-to-person, file-swapping software developers Grokster and SteamCast Networks, said copyright owners remained free to bring such an inducement claim and seek damages for it, if the case is sent back to District Court for a trial. (The case reached the Supreme Court after summary judgment in the District Court, affirmed by the Ninth Circuit.)

But Donald B. Verrilli, Jr., representing the movie studios, music recording studios and other owners of copyrighted works, countered that an “active inducement” remedy would be seriously deficient in putting a stop to the practice of file theft. He cautioned the Court not to affirm the Ninth Circuit on the key issue in the case — the meaning of the Sony Betamax decision as it defined secondary copyright infringement — because that would give infringers “a perpetual license to keep going forward, and not ever have to do anything to check the practice” of massive file-downloading.

What the P2P software designers want from the Court, Verrilli protested, is “a rule of immunity: all they have to do is speculate that there will be some non-infringing uses [of their product], and then you can go right on infringing.”

Several members of the Court — but especially Justices Antonin Scalia, Stephen G. Breyer and David H. Souter — seemed troubled about the potential impact of a tightening of copyright law on small inventors — “the guy in the garage,” as Souter put it.

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The Supreme Court, splitting 5-4, on Tuesday significantly expanded the scope of protection against sex-based discrimination under Title IX of federal civil rights law.

The Court ruled that a teacher who is disciplined after complaining about sex discrimination against students has a legal right to bring a retaliation claim under Title IX. (Marty Lederman, in a post below, provides links to the majority and dissenting opinions in Jackson v. Birmingham Board of Education, docket 02-1672.)

Overturning the Eleventh Circuit, the Court said that such a teacher has a private right to bring a lawsuit after complaining of sex bias — not against the teacher, but against the students — where the school system’s retaliation against the teacher was “an intentional response to the nature of the complaint” — that is, sex discrimination.

Title IX, the Court said in the opinion written by Justice Sandra Day O’Connor, does not require that the victim of the retaliation also be the victim of the discrimination that the teacher had targeted.

“Teachers and coaches…are often in the best position to vindicate the rights of their students because they are better able to identify discrimination and bring it to the attention of administrators,” the Court majority said. “Indeed, sometimes adult employees are the only effective adversaries of discrimination in schools.”

The Court today issued opinions in the following two cases:

No. 03-855, City of Sherrill v. Oneida Indian Nation, reversed and remanded 8-1, in an opinion written by Justice Ginsburg. Justice Souter concurred with a one-paragraph “qualification.” Justice Stevens dissented.

No. 02-1672, Jackson v. Birmingham Board of Education, reversed 5-4, in an opinion written by Justice O’Connor. Justice Thomas dissented, joined by the Chief Justice and by Justices Scalia and Kennedy.

[Note to GC sticklers-for-detail: This post was completed at 10:19.]

On Wednesday, the Supreme Court will hear oral argument in Wilkinson v. Austin, No. 04-495. This case involves the transfer of an Ohio state prisoner to a “supermax” prison facility based on prison officials’ predictive assessment of the security risk that he presents to prison staff and other inmates. The parties agree that the prison regulations create a Fourteenth Amendment liberty interest in avoiding placement in a supermax facility. Accordingly, the issue before the Supreme Court is what process is due an inmate faced with a transfer to supermax. More specifically, the Supreme Court granted certiorari to resolve the question of whether prison regulations meeting the requirements specified in Hewitt v. Helms, 459 U.S. 460 (1983), satisfy the prisoner’s due process rights.

The Sixth Circuit’s decision is available here. James M. Petro, the Ohio Attorney General, will argue on behalf of petitioner Reginald Wilkinson. Petro will share time at oral argument with Deanne E. Maynard, an Assistant to the Solicitor General, who will argue on behalf of the United States as amicus curiae. Jules Lobel will argue on behalf of respondent Charles Austin.

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Chief Justice William H. Rehnquist, continuing treatment for thyroid cancer, went to Arlington Hospital on Sunday to have “a problem” remedied in a tube that had been inserted last October during a tracheotomy.

Here is the statement issued by the Court Monday afternoon:
“Yesterday, the Chief Justice had a problem with his tracheotomy tube. He went to Arlington Hospital by ambulance and was treated on an out-patient basis.”

There was no elaboration on the nature of the problem or of the treatment provided.

Rehnquist was on the bench Monday morning, and participated fully in the oral arguments. There was no notable change in his condition or appearance from last week.

The Supreme Court spent a fascinating hour Monday canvassing a whole host of difficult constitutional and international law questions in a Texas death penalty case, but also spent a good deal of that time talking about ways to avoid answering those questions. Among the ways they discussed: simply dismissing the case without a ruling.

Meanwhile, the procedural status of the case grew newly complicated over the weekend, as attorneys for the death row inmate in the case — a Mexican national named Jose Ernesto Medellin — filed a new habeas challenge in the Texas Court of Criminal Appeals, then asked it to hold off while the Supreme Court ponders what to do. (UPDATE: In a letter to the Court, Medellin’s counsel, Donald F. Donovan, said that the new state petition had been filed on March 24 to avoid any argument that it was filed too late after the World Court ruling that is a key to the petition.)

Medellin’s attorneys already had asked the Supreme Court to put the case pending there on hold, until after they could pursue a possible remedy in state court. That idea, to which the Court had not previously reacted, got a chilly reception from the Justices this morning — with the exception of Justice Stephen G. Breyer, who speculated that it might be the best tack to take.

Justice Sandra Day O’Connor called the idea of delaying Supreme Court action “very unusual; usually, a state court holds off until this Court acts…Why not go ahead and decide this case?”

But, as the Court moved on to explore how to decide Medellin v. Dretke (04-5928), a number of the Justices grew openly hesitant about doing so. Deciding the case, several of them suggested, could require the Court to address a whole host of fundamental questions. Among such questions the Court explored this morning were these:

Is the Supreme Court the sole organ to decide what a treaty means as it applies to a case in American courts? Must the Court accept an interpretation of a treaty that the President has spelled out? Can an international court (here, the World Court at The Hague) confer on individuals private rights that are enforceable in U.S. courts? Must the Supreme Court act to carry out a decision of the World Court? What constitutional principle would support the President’s view that an international treaty imposes binding obligations on the Supreme Court? Can the President dictate to state courts that they must follow a decision of the World Court in their own state criminal proceedings?

Justice John Paul Stevens suggested that the Court might not have to decide any of those issues, if the new Texas habeas proceeding were allowed to go forward. The outcome, Stevens said, might make moot the pending case before the Justices. Texas’ solicitor general, R. Ted Cruz agreed.

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The Supreme Court on Monday agreed to rule on the application of the “harmless error” doctrine to death penalty cases. The agreement to hear Brown v . Sanders (docket 04-980) was the only grant on the orders list. The case will be heard in the Term beginning in October.

At issue is California’s death penalty law, under which “special circumstances” must be found during the guilt phase in order to make the accused eligible for a death sentence.

The Court limited its grant to two of the three questions raised in the appeal by California prison officials, in a challenge to a Ninth Circuit decision. These are the questions to be heard:

“Is the California death penalty statute a ‘weighing statute’ for which the state court is required to determine that the presence of an invalid special circumstance was harmless beyond a reasonable doubt as to the jury’s determination of penalty?”

“If an affirmative answer to the first question was dictated by precedent, was it necessary for the state supreme court to specifically use the phrases ‘harmless error’ or ‘reasonable doubt’ in determining that there was no ‘reasonable possibility’ that the invalid special circumstance affected the jury’s sentence selection?”

Among the cases the Court declined to hear Monday were these:

Wasden v. Planned Parenthood of Idaho (04-703), a state appeal challenging a Ninth Circuit decision nullifying Idaho’s parental consent law for minors seeking abortions. The Circuit Court found the law’s medical emergency exception invalid.

Arkansas v. Jolly (04-806), a state appeal seeking clarification of the constitutional doctrine to be applied to an excessive delay between a guilty verdict and the imposition of sentence.

Troy Publishing v. Norton (04-979), testing whether the media have a First Amendment right, while engaged in neutral news reporting, to repeat a public official’s defamatory statements.

Virginia Department of State Police v. Washington Post, et al. (04-999), an appeal by state officials testing the scope of the right of news organizations and the public to access to sealed court documents.

The Court continued to dispose of pending cases under the federal Sentencing Guidelines, sending 25 cases back to lower courts under the Booker/Fanfan decision.

On Monday the Court will hear oral arguments in No. 04-340, San Remo Hotel v. San Francisco.

The issue before the Court is whether or not a Fifth Amendment takings claim, brought in federal court, is barred by issue preclusion based on a judgment denying compensation solely under state law, which was rendered in a state court proceeding that was required to ripen the federal takings claim.

The San Remo Hotel has something of an illustrious history. Owned by Tom and Robert Field since 1970, after the 1989 San Francisco earthquake they opened up its rooms to homeless families free of charge. The hotel, which had a significant number of residential units, also served as a sanctuary after the 1906 earthquake and subsequent fires.

Twenty-five years ago, San Francisco first enacted a housing conversion ordinance in response to a city-wide decrease in residential hotel units. The ordinance subjects hotel owners desiring to convert residential hotel units to tourist units to significant fees; as amended nine years ago, the ordinance now requires hotel owners to pay the city up to 80% of the renovation cost. In 1996 the Fields thus paid the city $567,000 when they converted the San Remo to a tourist-focused budget hotel. They then took the city to federal court, arguing that the ordinance is an unconstitutional taking under both the California and the United States Constitutions.

The district court held, and the Ninth Circuit agreed, that the Fields’s federal takings claim was unripe, and that the Fields needed to seek compensation in state court before pursuing their case on the federal level. Now, after having pursued their state claims in the California courts, they want their money back

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UPDATE Saturday morning: News organizations are reporting that attorneys for the Schindler family have decided not to pursue en banc review of the latest federal case in the Eleventh Circuit or review in the Supreme Court. NBC News quoted attorney David Gibbs III as saying: “The federal courts have ruled that the law passed by Congress is a nullity. There are no claims that could be brought forward for Terri, with how the courts have construed the law.” The network said Gibbs planned one more appeal in state court, if the parents lost later Saturday in a state trial court.

A three-judge panel of the Eleventh Circuit, acting unanimously this time, on Friday evening refused to order the resumption of food and water for a brain-damaged Florida woman, Theresa Marie Schiavo (docket 05-11628).

Acting two days after the same panel — by a 2-1 vote — had refused an earlier emergency plea by Mrs. Schiavo’s parents, the three judges upheld a District Court judge’s refusal to issue a temporary restraining order. The panel gave the parents, Robert and Mary Schindler, until 8 a.m. Saturday to seek en banc review. The en banc Court had refused to review the case on Wednesday. The parents’ attorneys said that maneuver would be attempted anew.

Circuit Judge Charles R. Wilson, who had dissented from the earlier denial of relief, joined in the result on Friday, saying that “the plaintiffs have been unable to come forward in their second amended complaint with any new claims palpably alleging the denial of a right secured by the Constitution or laws of the United States.”

The other judges on the panel, in a decision that tracked closely a ruling earlier Friday by U.S. District Judge James D. Whittemore in Tampa, concluded that the parents had not made a substantial case in their five new claims. The language of the “per curiam” opinion reads very much like a rejection on the merits of those five claims, rather than simply a conclusion that the claims would not be likely to succeed if the case goes to trial.

The “per curiam” opinion relied upon “the law of the case” doctrine in refusing to review a number of basic propositions it had decided on Wednesday in the earlier proceeding. The panel thus sent at least an implied signal that re-casting the legal claims into new counts through a further-amended complaint would have little promise in any further round in federal court.

The prospect remains that the case will reach the Supreme Court promptly after the Circuit Court completes action, probably on Saturday. (Not likely now, see Update, at the top of this post.)

(Thanks to Howard Bashman of How Appealing blog for a link to the new opinion by the panel. The Circuit Court’s own Internet-accessed electronic records system did not contain, until after midnight Friday, even a docket for the parents’ new request for emergency relief. The routine inaccessibility of materials on file at that Court under the Pacer system compares most unfavorably with the complete and easily used electronic case filing system at the District Court in Tampa.)

The Court will be issuing opinions in one or more argued cases on both Tuesday and Wednesday next week.

This post was jointly authored with Danielle Goldstein [disclosure: Danielle assisted with the preparation of an amicus brief for the government of Mexico in support of petitioner]

Monday’s second case, Medellin v. Dretke, No. 04-5928, involves a little bit of everything – capital habeas proceedings, the International Court of Justice, treaty enforceability, executive authority, and even an overtone of federalism. Because the questions the Court will address are so intimately entwined with the procedural history of the case, a short overview is necessary before summarizing those questions and the parties’ (and government’s) arguments.

Medellin is a Mexican national who was convicted of murder and sentenced to death in a Texas court. Texas never notified Medellin that Article 36 of the Vienna Convention on Consular Relations (to which the U.S. is a party) entitled him to legal assistance from the Mexican consul, and the Mexican consular authorities were not made aware of his arrest, trial, or sentence until six weeks after his death sentence was affirmed by the Texas Court of Criminal Appeals.

Medellin brought first a state and then a federal habeas petition arguing that Texas had violated his rights under Article 36 of the Vienna Convention. Both courts denied the petitions, finding (1) Texas’s “contemporaneous objection” rule prevented Medellin from raising a Vienna Convention claim on collateral review since he did not assert it at trial, and (2) that in any event Medellin could not sue for a violation of the Vienna Convention, since it did not create any private, judicially enforceable rights.

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On Tuesday, March 29, the Supreme Court will hear arguments in what could be one of the most important copyright cases of the last two decades: Metro-Goldwyn-Mayer Studios Inc. v. Grokster, No. 04-480, a case on appeal from the Ninth Circuit. The question presented (slightly rephrased from the official version) is:

Whether the Internet-based “file sharing” services Grokster and StreamCast are contributorily or vicariously liable for the massive copyright infringement that constitutes roughly 90% of the total use of their services.

The Ninth Circuit’s decision can be found here (380 F.3d 1154 (9th Cir. 2004)). The district court decision is here (259 F.Supp.2d 1029 (C.D.Cal. 2003)). An incredible number of briefs and other documents associated with this case can be found here, with a helpful summary of their arguments provided here by Jonathan Band of Morrison & Foerster. (Marty previously noted these resources in an earlier post.) These briefs present a bewildering number of claims: the Christian Coalition, for instance, points out that file-sharing networks allow pedophiles to swap child porn (though it’s not clear why the software creators are responsible for this).

Donald B. Verrilli, Jr., of Jenner & Block will argue for petitioners MGM and other content owners; he will be joined by Acting Solicitor General Paul D. Clement, who will argue on behalf of the United States for petitioners. Richard G. Taranto of Farr & Taranto will argue for respondents Grokster and Streamcast Networks.

A longer description of the case follows.

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UPDATE at 2:50 p.m.: The new appeal to the Eleventh Circuit puts a strong new emphasis on a claim that the state judge in the Theresa Marie Schiavo case has authorized a “mercy killing” in violation of Florida law, making the resulting withdrawal of food and water a violation of the Constitution. The appeal (in the new case docketed in the Circuit Court as 05-11628) seeks a new evidentiary hearing on whether Mrs. Schiavo is medically in a “persistent vegetative state.” If she is not, it would be illegal to deny her nutrition, the appeals contends. “This is a mercy killing case. Plaintiffs [the parents] have alleged, and proved, that there is a significant difference of opinion concerning the present physical condition of Terri Schiavo.”

The case of Theresa Marie Schiavo was back in the Eleventh Circuit at midday Friday, and was expected to reach the Supreme Court later in the day.

A federal judge in Tampa ruled earlier Friday (docket 05-530) that the woman’s parents, Robert and Mary Schindler, had failed to show a likelihood that they would prevail if there is a trial in federal court on their five latest claims of violations of their daughter’s rights by a Florida state judge and others. Thus, for the second time in four days, U.S. District Judge James D. Whittemore refused to issue an emergency order to restore food and water for the brain-damaged woman now entering the eighth day without nutrition.

The new decision closely paralleled the judge’s similar finding on Tuesday regarding the parents’ first five claims. Of the five new assertions, Whittemore wrote that the Schindlers “cannot establish a substantial likelihood of success on the merits or even a substantial case on the merits.” (An earlier post, here, catalogs the ten claims as they stood prior to this morning’s decision.)

Unperturbed by the rapid-fire presentation of multiple claims and by the exaggerated speed of the entire process, Judge Whittemore wrote: “The civility with which this delicate matter has been presented by counsel is a credit to their professionalism and dedication to their respective clients, and Terri.”

The parents promptly filed a notice of appeal to the Eleventh Circuit, where on Wednesday they lost in a three-judge panel and in the denial of rehearing en banc. The earlier case proceeded as docket 05-11556. That case is closed, so it is unclear whether the new appeal will carry a different docket number. (See UPDATE, above, for the new docket number.)

On Thursday, the Supreme Court denied emergency relief in an order seriously misconstrued by some news organizations as a denial of review of the parents’ underlying lawsuit. All that the Court rejected was a request for a stay to allow Mrs. Schiavo to receive food and water again. The parents’ lawsuit is still pending before Judge Whittemore in District Court.

I’m arguing this case for the respondents – the states, companies, and groups that object to an FCC rule – on Tuesday.

The case involves the classification of broadband Internet services under the federal communications laws. The case is significant because if a service is classified a “telecommunications service” it is presumptively regulated as common carriage, as discussed below.

The case specifically involves “cable modem service,” which is the combination of high-speed Internet access and other services like e-mail that cable companies sell their customers. The FCC has announced, however, that the same rule that governs cable modem service will apply to DSL service; so the case will decide how the government regulates essentially all high-speed Internet access.

Deputy Solicitor General Tom Hungar will argue for petitioner FCC for 20 minutes. Paul Cappuccio, general counsel of AOL Time Warner and a former Supreme Court litigator, will argue for the cable companies for 10 minutes. I have the respondents’ full 30 minutes. The principal briefs are available here.

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Less than two hours after the Supreme Court on Thursday turned aside the first attempt to use a special new federal law to achieve restoration of a feeding tube for Theresa Marie Schiavo, her parents’ attorneys opened a second round in U.S. District Court in Tampa. They asked U.S. District Judge James D. Whittemore anew to order a resumption of food and water for the brain-damaged Florida woman. This proceeding, too, may ultimately lead to the Supreme Court.

This new request for an emergency order was triggered by two new sets of legal claims – four that had been added to the parents’ lawsuit on Tuesday, and one added Thursday morning. Judge Whittemore early Thursday evening was holding a hearing on the new request for an emergency order.

Whittemore on Tuesday had found that the parents, Robert and Mary Schindler, had not been able to show “a substantial likelihood of success on the merits” on their first five claims. He thus declined to issue an order to resume nutrition to keep her alive for a trial on those issues. The judge has allowed the filing of the amended complaints, but has yet to act on the five added claims; he is expected to do so swiftly after the evening hearing.

Those added claims brought a sharp objection Thursday from attorneys for Michael Schiavo, Mrs. Schiavo’s husband and her legal guardian. They told Judge Whittemore that the parents and their lawyers “clearly intend to abuse the process of this Court by recasting the same allegations under as many different theories as they can, no matter how meritless, as many times as they can.”

To sort out what has been claimed, what has been acted upon, and what remains in the parents’ lawsuit at this point, there follows a brief array of the three filings and where they stand.

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