The following was prepared by Stanford Law Student Eric Tuttle.

On Wednesday, the Supreme Court heard argument in Mohawk Industries v. Williams, a case regarding the application of the Racketeer Influenced and Corrupt Organizations Act (RICO). The facts and basic questions of the case are described here.

Based on argument, it was difficult to tell where a majority of the Court will come out on the RICO issues presented by this case — namely, whether a corporation can ever be part of an association-in-fact enterprise and, if so, whether plaintiffs had alleged enough here to establish that the defendant corporation was participating in an enterprise with its outside recruiters when it hired illegal workers, rather than simply conducting its own affairs. Several of the Justices were clearly troubled that Mohawk had raised the first issue for the first time in its merits brief before the Court. And while some Justices were concerned that a broad reading of when a corporation could be part of an enterprise-in-fact would lead to total RICO-ization of corporate conspiracy law, they also worried that any categorical attempt to separate out a defendant’s affairs from those of the alleged enterprise would be unworkable.

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This is another in a continuing series of reports on interesting new appeals to the Supreme Court. At this stage, the blog takes no position on whether the Court is likely to review the case. These reports appear only when the blog is able to obtain an electronic copy of a petition.

The granddaughter of English playright/author A.A. Milne, the creator of “Winnie-the-Pooh” and delightful children’s stories about that stuffed bear and friends, has asked the Supreme Court to clear the way for her to recapture the copyrights to four of the Pooh works with copyrights running to 2020. The four are “Winnie-the-Pooh,” a sequel “The House at Pooh Corner” and two works of verses for children, “When We Were Very Young” and “Now We Are Six.” Milne began writing the works in 1923, inspired by the childhood life of his boy, Christopher Robin Milne. The boy in the Pooh books is “Christopher Robin.”

The petition in Milne v. Stephen Slesinger, Inc. (docket 05-1332) can be found here. The Circuit Court ruling at issue can be found here.

This is an appeal by Clare Milne, basically testing the meaning of provisions written into the Copyright Act in 1976 and again in 1998, giving authors and their heirs a one-time right to nullify prior grants of their rights to others, so that they can recapture them and enjoy the benefits of an extension of the copyright’s life. The copyrights on the Pooh works had been due to expire between 1980 and 1984, but have twice been extended by the two copyright law revisions.

The appeal implies a host of issues about the scope of the right to recapture, but the question presented is limited to whether someone outside the author’s family, though holding the copyrights, has any right to defeat the recapture rights of the family. Clare Milne is seeking to wipe out a 1930 grant by her grandfather of rights to a U.S. merchandising firm, Stephen Slesinger, Inc. The Ninth Circuit ruled, however, that she no longer had any right to terminate, since a 1983 agreement between the Pooh Properties Trust, owner of the copyright under A.A. Milne’s will, and the Slesinger firm and Walt Disney Productions revoked the 1930 grant and substituted a new one.

The petition argues that the Pooh Trust had no right to do away with the 1930 grant, since it is not a part of the family and no family member is a trustee. While her father, Christopher Robin Milne, signed the agreement, Clare contends that he exercised no termination right in that deal, so none could have been.

Clare contends that the Circuit Court ruling “could cripple Congress’s policy that authors and their surviving families should ahve an inalienable one-time right to terminate prior grants and recapture the author’s initial rights.” She rejects the suggestion of the Circuit Court that she was simply after more money that she gets under the 1983 deal with the Pooh Trust. She also says the lower court was wrong in suggesting that the substitute arrangement was a great bargain for the trust beneficiaries.

The case, she adds, is not confined to the specifics of the right to control the Pooh works. The lower court, she says, has opened a loophole that will allow licensees and copyright owners other than families — such as trusts and foundations and creditors — to nullify a right Congress intended that only authors and their heirs would have. The ruling, according to the petition, is already having an impact on other cases, recently leading a federal judge to block a termination of a grant of rights to the novel “Lassie Come Home” by the daughter of author Eric Knight.

The Slesinger firm has until May 22 to file a response to the Milne appeal.

The Supreme Court ruled on Wednesday that when a mailed notice of a tax sale is returned unclaimed, a state must take added steps to attempt to make sure the property owner knows the property is at risk before it may be sold. The Court said, however, that only “reasonable” additional steps need be taken, and then only when it is “practicable” to do so.

Chief Justice John G. Roberts, Jr., wrote for the majority in a 5-3 ruling, in Jones v. Flowers (04-1477). New Justice Samuel A. Alito, Jr., took no part. The case involved a Little Rock, Ark., man who lost his house in a tax forfeiture sale because he did not receive notice until too late to redeem the property.

Roberts’ opinion drew the support of the Court’s more liberal members, Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens. Justice Clarence Thomas dissented, joined by Justices Anthony M. Kennedy and Antonin Scalia.

In the only other decision on an argued case Wednesdary, the Court ruled that an individual claiming to have been prosecuted in retaliation for exercising his rights must show that the officers did not have probable cause for their action. The decision was 5-2, with Roberts and Alito not participating. The ruling came in Hartman v. Moore (04-1495). Justice Souter wrote for the majority.

Resolving a conflict in lower courts, the Court sided with those that have required a showing that there was no probable cause before a law enforcement officer can be held liable for engaging in retaliatory prosecution. The case involved five U.S. postal inspectors who faced trial oin charges that they pursued criminal charges against a postal equipment maker and his company to retaliate for his lobbying to get Postal Service contracts.

The majority said that a demonstration that there was no probable cause for the officers’ actions would tend to reinforce the claim of retaliation, and to show that, had it not been for the attempt to punish the individual, the prosecution would not have been instigated. The ruling sided with the view of the Justice Department.

Souter’s majority opinion was joined by Justices Kennedy, Scalia, Stevens and Thomas. Justice Ginsburg dissented, joined by Justice Breyer.

Concurring Opinions has this post on the Supreme Court and the role of foreign and international law in interpreting the U.S. Constitution and this post titled, “Roberts’ And Alito’s Pragmatic Turn.”

Legal Theory Blog has this post titled, “Hasen on the Sixth Circuit on Hasen on Bush v. Gore and the Theory of Horizontal Stare Decisis.” Rick Hasen comments here.

In the National Law Journal, here is an op-ed by Brian Fitzpatrick on “Scalia’s Mistake.”

Here is Sentencing Law & Policy on today’s lethal injection case.

Underneath Their Robes has this post on Justice Ginsburg’s clerks.

Here Orin Kerr reviews, The Sorcerers’ Apprentices: 100 Years of Law Clerks at the United States Supreme Court, by Artemus Ward and David Weiden.

Here CQ.com has a column by Kenneth Jost titled, “Courts & the Law: Scalia v. Dignity.”

Here, in the Washington Post, is an op-ed by Senator Arlen Specter on the propsect of televising Supreme Court proceedings. The Wall Street Journal Law Blog comments here.

On Wednesday, the Court will hear argument in a case that will clarify what kinds of arrangements involving corporations qualify as “enterprises” under the Racketeer Influenced and Corrupt Organizations Act (RICO). In particular, the question is whether a corporation acting in concert with outside recruiters and staffing agencies to hire illegal aliens can constitute an “enterprise-in-fact,” such that the corporation can be sued as a distinct member of the enterprise. The Eleventh Circuit held that petitioner Mohawk, which is accused of engaging in such a scheme, is subject to suit under RICO. Mohawk argues that such a rule transforms any contractual relationship involving a corporation into a RICO enterprise, thus federalizing the criminal law of conspiracy. The respondents — Mohawk employees who allege that Mohawk’s practices depressed their wages — argue that Mohawk is seeking to entirely immunize corporations from RICO claims. The United States, which frequently brings both civil and criminal RICO charges against corporations, filed an amicus brief supporting respondents.

Carter Phillips of Sidley Austin in Washington will argue for Mohawk. Howard W. Foster of Johnson & Bell in Chicago will argue for respondents. Malcolm Stewart, Assistant to the Solicitor General, will argue for the United States as amicus curiae supporting respondents.

The parties’ briefs can be found here.
The government’s amicus brief can be found here.

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Wednesday’s first case is Hill v. McDonough, No. 05-8794, which presents the question whether a prisoner’s action under 42 U.S.C. § 1983, challenging the constitutionality of Florida’s use of certain chemicals in its lethal injection protocol, is properly recharacterized as a successive habeas petition.

D. Todd Doss will argue on behalf of petitioner, and Carolyn M. Snurkowski, Assistant Deputy Attorney General for the State of Florida, will argue on behalf of respondents. Kannon K. Shanmugam, Assistant to the Solicitor General, will argue on behalf of the United States as amicus curiae in support of respondent.

The party briefs are available here, and the brief of the United States as amicus curiae supporting respondents is here.

(Disclosure: I worked on an amicus brief in support of petitioner in this case; Goldstein & Howe, P.C., served as counsel on the same brief).

In April 1983 petitioner Clarence Edward Hill was convicted of first-degree murder, among other offenses, and was sentenced to death. That sentence was twice vacated in state and federal postconviction proceedings but was both times reimposed. On January 10, 2000, the United States Supreme Court denied cert. on Mr. Hill’s final appeal of his first habeas petition.

On January 20, 2006, four days before his scheduled execution, Hill filed a claim for injunctive and declaratory relief under § 1983, contending that Florida’s lethal injection protocol is unconstitutional because it inflicts unnecessary pain and suffering. On January 21, the U.S. District Court for the Northern District of Florida found that the claim was the functional equivalent of a successive habeas petition and dismissed his suit. Because petitioner had not obtained permission under 28 U.S.C. § 2244 to file a second petition, the court found that it lacked jurisdiction over the claim. Three days later, the Eleventh Circuit affirmed; the Supreme Court stayed Hill’s execution and subsequently granted certiorari.

Hill raises the question left open by the Supreme Court in 2004 in Nelson v. Campbell: whether an action challenging the government’s method of execution states a cognizable claim under § 1983. In that case, the Court explained that “[a] suit seeking to enjoin a particular means of effectuating a sentence of death does not directly call into question the ‘fact’ or ‘validity’ of the sentence itself – by simply altering its method of execution, the State can go forward with the sentence.” Accordingly, means-of-execution challenges can be properly brought as § 1983 actions. Nelson also recognized limits to such actions, however: because “imposition of the death penalty presupposes a means of carrying it out,” a method-of-execution challenge that leaves the state with no alternative means of execution is effectively a challenge to the sentence itself, and is thus properly recharacterized as a habeas petition. At issue in this case is how broadly petitioner’s claim should be construed, and, accordingly, how characterized.

Petitioner first argues that this case falls squarely within the ambit of Nelson. As in that case, petitioner is not attacking lethal injection as a method of execution but rather challenging as unconstitutional the state’s specific protocol, which calls for successive administration of sodium pentothal, pancuronium bromide, and potassium chloride. Moreover, petitioner does not seek a permanent stay of his execution but merely an injunction preventing the state from executing him using that particular three-drug cocktail. If petitioner were to prevail on the merits of his claim, the state could still execute him by lethal injection simply by substituting for the unconstitutional cocktail a more humane protocol.

Petitioner argues in the alternative that, even if his claim is properly characterized as a habeas petition, it should not be viewed as a successive petition. Because Florida did not adopt lethal injection as its presumptive method of execution until January 2000 – viz., after petitioner’s first federal habeas corpus proceedings were final – petitioner’s claim was not ripe for review at the time of the first petition and thus cannot be properly recharacterized as a successive petition.

Respondents contend that Hill’s claim is the functional equivalent of a habeas petition because, in challenging the state’s usual means or method of execution, petitioner is effectively challenging the enforcement of his death sentence more broadly. The federal government echoes respondents’ argument, adding that petitioner’s failure to suggest an alternative to the protocol he challenges is further evidence of his intent to use this action to effect a permanent stay of his execution.

Respondents also warn that reversing the decision of the Eleventh Circuit in this case would open the floodgates to all manner of method-of-execution challenges. The upheaval caused by such a decision is likely to be particularly great given that almost all states that make capital punishment available rely on the same three-chemical cocktail petitioner challenges in this case.

The government also contends that petitioner’s second argument – that, if viewed as a habeas petition, his claim should be viewed as a first, rather than a successive petition – is not properly before the Court, as the question was neither included in the questions presented nor raised in the briefs or arguments below. Moreover, the government maintains that even if the question were properly before the Court, it should not succeed, because AEDPA’s one-year limitations period would have begun to run no later than February 14, 2000 – the date on which the Florida Supreme Court decided Sims v. State, which by discussing at length the details of the state’s lethal injection protocol made the facts of the protocol discoverable.

Finally, the government asserts that, even if petitioner’s claim is cognizable as a § 1983 action, the Court should not grant relief for two reasons. First, the government cites Nelson for the proposition that “there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.” Additionally, the government contends that petitioner’s claim should be denied because he failed to exhaust the administrative remedies available to him within the Florida prison system, as the Prison Litigation Reform Act of 1995 requires.

This is another in a continuing series of reports on interesting new appeals to the Supreme Court. At this stage, the blog takes no position on whether the Court is likely to agree to review the cases. The reports will appear only when the blog has obtained an electronic copy of the petition. Thanks to Illinois’ Solicitor General, Gary Feinerman, for supplying this petition.

Thirty states’ attorneys general, telling the Supreme Court their states’ authority to pass and enforce legislation has been put in serious jeopardy, have asked the Justices to deny a federal court in New York the power to rule on passage and enforcement of state laws inside those 30 other states. The laws at issue were adopted as part of the multi-state plan to carry out the huge settlement of the states’ lawsuits against the cigarette industry. The attorneys general’s petition, docket 05-1343, can be found here; it includes the lower court rulings in the case that is now titled King, et al., v. Grand River Enterprises Six Nations, et al.

The 30 states have been sued by three smaller tobacco companies in U.S. District Court in New York City. At this point, the case has not gone to trial, on claims that the 30 states’ attorneys general are violating the Sherman Antitrust Act and the Constitution’s Commerce Clause by their states’ enactment and enforcement of state laws that apply to those three companies. The states’ legislatures passed those laws to help protect the settlement plan.

Here is the background of this litigation:
The three companies involved did not join in the $206 billion settlement plan. They are Grand River Enterprises Six Nations, Lt., a Canadian cigarette maker that is owned by the Iroquois tribes; Naitonwide Tobacco, Inc., a Washington State company that distributes cigarettes made in the Philippines, and 3B Holdings, inc., a Washington State maker of loose tobacco.

Because they did join in the master agreement, they are required, under laws passed in the 30 states (as well as in New York — a state about which there is now no jurisdictional controversy), to put money into an escrow fund in each state if they do not join the settlement in the future. The funds are to function as security, to cover potential future damage awards resulting from cigarette-related claims in those states’ courts. The states also passed laws to require the non-joining companies to file an annual certificate saying they have made their escrow deposits if they continued to remain outside the settlement. Failure to file the certificate can cost the company the right to sell cigtarettes in that state.

The lawsuit made various claims, but the only ones surviving the Second Circuit Court ruling in the case are a Sherman Act trade restraint claim and a Commerce Clause claim of an invalid nationwide regulation resulting in higher prices for cigarettes.

U.S. District Judge John F. Keenan of New York City dismissed the claims against the 30 state attorneys general (leaving claims against New York State’s attorney general), finding that a federal court in New York has no jurisdiction to judge passage and enforcement of state laws elsewhere. The three companies then took the case to the Second Circuit, and won on the jurisdictional issue.

In their appeal to the Supreme Court, the attorneys general claim that the Circuit Court ruling “violates principles of state sovereignty and due process by treating a state’s most sovereign act — the passage of legislation — as though it were the culmination of a commercial antitrust conspiracy.” State laws are passed inside the several states, and state sovereignty is demeaned if the pre-enactment actions of state officials can subject them to lawsuits in federal courts elsewhere, the petition asserts. They contend that the Supreme Court left this constitutional issue unresolved in a 1979 case, Leroy v. Great Western United Corp. And, while they concede there is no Circuit Court conflict at this point, and that the case has not yet gone to trial, the attorneys general nonetheless argue that the case is worth the Court’s attention now because the states’ officers are being made “litigation proxies for the sovereign states they serve.” Morever, they contend, the Circuit Court ruling is likely to invite all such litigation to the federal courts in New York, because those courts have been “declared…open for business” to such litigation, so no Circuit conflict is likely to develop. Because of the insult to their states’ sovereignty, they argue, they should not have to go through a trial in a case where court jurisdiction ultimately may not exist.

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Washington newspaper readers woke up on Tuesday morning to a new demand, by the chairman of the Senate Judiciary Committee, Arlen Specter, a Pennsylvania Republican, that the Supreme Court be ordered to open its public proceedings to television coverage. The chairman, in an op-ed article in The Washington Post, made it clear Specter wants to tie the the issue of cameras in the Court to the Court’s rulings striking down federal laws under the Constitution. He makes it appear that part of his motive for sponsoring legislation to put cameras in the Court is hostility to what he calls the Court’s “super-legislature status.” The merits of TV coverage appear to get second priority. The column can be found here.

The Senate Judiciary Committee on March 30 approved for Senate consideration a bill that would direct the Court to permit TV coverage, outlining what the Court would have to do to keep the cameras out, case by case. The bill, S. 1768, as reported, can be found here. The bill is now on the Senate’s legislative calendar, awaiting scheduling of further action.

The Specter column Tuesday appeared to be, at least in part, a reaction to recent congressional testimony by Justices Anthony M. Kennedy and Clarence Thomas, objecting to the Court being forced to accept TV coverage. “The two justices insisted,” the chairman wrote, “that Congress should mind its own business and respect the Court’s autonomy, just as the Court has respected Congress’s autonomy.”

But, he goes on, “does the Supreme Court respect Congress?” He does not then complain of Court intrusion into the internal workings of Congress and the decision of the Senate and House to allow cameras in the legislative halls. Rather, he complains of decisions the Court has made on the merits — a decision striking down part of the Violence Against Women Act and an employment discrimination decision that Specter does not further identify, although he seems to be referring to a ruling on the Americans with Disabilities Act and state sovereignty.

“Within the past decade, the Court has expanded its super-legislature status by invalidating legislation it dislikes, plucking out of the air a brand-new doctrine that acts of Congress are ‘disproportionate and incongruent,’ whatever that means,” according to the chairman, in comments that sound very much like ill-disguised complaints of rampant judicial activism. Thus, the issue of TV coverage of the Court begins to sound retaliatory.

He promotes his legislation as “in the public interest,” saying “the public needs to be able to assess these issues by shining a televised light on the justices.”

(Editing disclosure:: Throughout the column, Specter refers to the Court with a lower case “c.” It it this blog’s style to use a capital letter, so the chairman’s quotes have been so modified.)

The Supreme Court, dividing 5-4, ruled on Tuesday that federal trial judges have discretion whether or not to dismiss a prisoner’s habeas petition as too late, even though a state had conceded erroneously that the petition had been filed on time. The Court, in an opinion by Justice Ruth Bader Ginsburg, said the Court would not choose an inflexible rule that dismissal would be required whenever the one-year filing deadline had expired. The judge has discretion to raise a time bar, the Court said, by choosing whether to dismiss the case or reach the merits in the interest of justice. Both sides, however, must be given a chance to react before the judge may act. In the case of Day v. McDonough (04-1324), the judge opted for dismissal.

The decision upheld a ruling by the Eleventh Circuit Court that the state’s failure to argue that the filing deadline had passed is not a waiver, leaving the trial judge with discretion whether to dismiss the case on his or her own. Other Circuit Courts had disagreed. The Eleventh Circuit had upheld the dismissal as untimely of a Florida inmate’s habeas challenge to his murder conviction and 55-year prison sentence.

Justice Antonin Scalia, in the main dissenting opinion, also speaking for Justice Stephen G. Breyer and Clarence Thomas, argued that federal court rules follow the traditional view that a failure to plead a statute of limitations defense amounts to a forfeiture. “Forfeiture of the limitations defense is demonstrably not inconsistent with traditional habeas practice,” Scalia wrote.

Justice John Paul Stevens, in a separate dissenting opinion joined in part by Justice Breyer, said that the Court should have postponed its judgment in the case until after it rules on a new case, Lawrence v. Florida (05-8820), raising different habeas issues; it was granted review last month and due to be decided in the next Term starting in October. That case, Stevens said, would settle whether the petition in the Day case was barred by the habeas limitations statute. Breyer joined that part of the dissent. Stevens added, on his own, that he agreed with Ginsburg’s opinion on the legal issue on which the Day case was granted review. That made the vote on the merits 6-3. The questions presented in the Lawrence case can be found here.

In the only other ruling Tuesday on an argued case, the Justices decided unanimously that an entity that cannot qualify as an arm of a state government cannot claim common law immunity to a private civil lawsuit. In this case, the entity was the county government of Chatham County, Ga., which sought immunity to a lawsuit by a couple whose boat was damaged when a drawbridge on the Wilmingon River drifted downward after being opened for the boat. The decision in Northern Insurance v. Chatham County (04-1618) reversed a decision of the Eleventh Circuit Court saying hat “common law has carved out a residual immunity,” protecting a political subdivision such as the county from suit. There was no issue over Eleventh Amendment immunity; as conceded by the county.

Tuesday’s decisions were the first on the merits in which new Justice Samuel A. Alito, Jr., participated. He voted with the Ginsburg majority in Day, and, of course, with the unanimous Court in the Georgia county case.

Additional decisions on argued cases are expected Wednesday.

The only criminal case in U.S. courts to grow directly out of the terrorist attacks on Sept. 11, 2001, the death penalty proceeding against Zacarias Moussaoui, is now in final jury deliberations on his fate.

At 2:26 p.m. Monday, according to news accounts, the jury began considering whether to impose the death sentence — Phase II of its work in the proceeding (U.S. v. Moussaoui, 01-455). Moussoaoui has pleaded guilty to terrorism conspiracy charges, so the only issue is the sentence. On Monday, April 3, the jury unaniiously reached a Phase I verdict, finding Moussaoui eligible for a death sentence.

The jury did not finish its work on Monday, and will resume at 8:30 a.m. Tuesday. The day’s schedule calls for deliberations to continue to 4 p.m., if necessary, with only a single 45-minute lunch break. If the jury finds for a death sentence, that will be imposed; if not, Moussaoui will be sentenced to life in prison without possibility of parole.

When the jury finishes its work, it must fill out a 42-page verdict form; that form can be found here.

Under an order issued by U.S. District Judge Leonie M. Brinkema last Saturday, the announcement of the jury’s verdict in open court will be delayed one hour after the judge knows there is a verdict. That is designed to accommodate the victims who have been watching the proceedings at places other than the courtroom in Alexandria, Va. If the verdict’s announcement comes before 12:30 p.m., Brinkema will impose a sentence at 3 p.m. that day. If the announcement comes after 12:30, the sentencing will come on the next day — unless it is a Friday, in which case the sentence will be imposed the following Monday.

The Supreme Court on Monday did not grant any new cases for review. But, in a major test case on the application of U.S. patent laws to the digital world, the Court asked the U.S. Solicitor General to express his views on Microsoft v. AT&T Corp. (05-1056). The issue is whether software code is the kind of tangible creation that can be treated under patent law as a component of a patented invention, and, if so, whether foreign copying of code for foreign-made computers is an infringement. (Chief Justice John G. Roberts, Jr., is recused in the case.) The orders list can be found here.

There was one summary order. In Salinas v. U.S. (05-8400), the Court ordered the Fifth Circuit Court to take a new look at a case on simple possession of an illegal drug. The Fifth Circuit had ruled that a prior conviction for simple possession amounted to a “controlled substance offense” for purposes of the Sentencing Guidelines. The Court acted after the Solicitor General conceded that the Fifth Circuit had erred. The Court’s brief, unsigned opinion said that that category is reserved for drug crimes involving the intent to make or distribute an illegal drug, not simple possession..

In the Microsoft case, the software giant told the Court that the Federal Circuit Court had embarked on a campaign to stretch U.S. patent laws to reach international commerce in sofware, even though the traditional understanding has been that U.S. patent laws do not reach abroad. Microsoft’s cert petition can be found here. The Federal Circuit decision Microsoft is challenging in its new appeal can be found here. That ruling partly built upon an earlier Federal Circuit ruling, in Eolas Technologies v. Microsoft, found here.

The particular issue in the case is, if code can be treated as a part of a patented invention, whether U.S. patent law forbids foreign computer makers from making copies of it for installation in foreign-made computers. At issue is Microsoft’s most significant software creation, the code for its Windows operating system. AT&T contended that computers running the Windows operating system infringe on a patent that AT&T holds on a so-called “digital speech coder system.”

Microsoft has stipulated that computers running Windows infringe on the AT&T patent, but only on computers built or sold in the U.S. AT&T went further, demanding damages for every Windows-running computer made outside the U.S., based on the theory that the code is a component of the AT&T patented system and that copying by a foreign company from a software master disk constitutes the infringement. The Federal Circuit found the claimed infringement.

The Solicitor General is not expected to respond to the invitation for his views for several months. Thus, the case will go over to the new Term starting in October.

The Court denied review of most of the key cases it had examined at its Conference last Friday. But among the new cases, it took no action Monday on two appeals testing whether the Court’s views allowing limited use of race in higher education admissions practices extends to student assignment policies in the public schools. The orders list showed no action on appeals from Seattle, Parents Involved in Community Schools v. Seattle School District (05-908) and from Louisville, Ky., Meredith v. Jefferson County Board of Education (05-915). The Court will consider both cases again at its Conference on Friday, according to the Court’s electronic docket.

In another public school case, the Court refused to hear an appeal by a school disrict in the small town of Baldwinsville, N.Y., near Syracuse, challenging a Second Circuit ruling that public school officials may act unconstitutionally in censoring what students say or otherwise express in school-sponsored activities, such as classroom assignments. The case involves a boy in kindergarten who, on an assignment to make a poster about saving the environment, included a figure of Jesus in his display. School officials bent under that portion of the poster when it was put up in the school cafeteria. The case, as it reached the Supreme Court, was not final, because the Circuit Court had ordered further proceedings in District Court. The case was Baldwinsville School District v. Peck (05-899).

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Here the Wall Street Journal Law Blog has a post on an NPR interview with Dahlia Lithwick discussing “Supreme Court TV.”

Here is ACSBlog with a post on Kelo and eminent domain in Illinois.

This week, the Legal Theory Bookworm recommends The Nature of the Judicial Process by Benjamin Cardozo.

Election Law Blog has a series of posts on Stewart v. Blackwell, the 6th Circuit decision that held that the selective use of punch card ballots in some Ohio counties but not others violates the Equal Protection Clause under Bush v. Gore. Here is the first.

Sentencing Law & Policy has this post titled, “A Capital Week for SCOTUS Arguments.”

This is another in a continuing series on the impact of Supreme Court decisions on later cases. The rulng discussed here, issued Friday by the Sixth Circuit Court in Cincinnati, is the most extensive treatment so far by a federal appellate court on the meaning of the Supreme Court’s abidingly controversial decision on Dec. 12, 2000, in Bush v. Gore, a 5-4 ruling that ended the presidential election contest in a way that meant victory for George W. Bush. (Thanks to Howard Bashman of How Appealing blog for the alert to this decision.)

A week from Tuesday, the voters in Ohio go to the polls for a primary election with a host of federal, state and local offices on the ballot. That may also be the day that a significant ruling by the Sixth Circuit Court loses much if not all of its continuing practical effect. That would be a missed opportunity, since the case appears to be an excellent vehicle for testing the continuing significance, if there is any, legally speaking, of Bush v. Gore.

The decision, relying heaviliy though not exclusiveliy on Bush v. Gore, can be found here. It is Stewart v. Blackwell, Circuit docket 05-3044. It declared unconstitutional the use of different voting technology in different Ohio counties, because in some counties voters had less chance of having their votes counted. (At issue were punch-card or optical scanning systems that do not give voters a chance to find mistakes they made on their ballot, and correct them before casting their vote.) As a result of that technology, perhaps 55,000 presidential votes were lost in 2000, the Circuit Court found, citing what it called a conservative estimate. That, the Circuit Court said in a 2-1 ruling, violated the equal protection rights of voters in the disfavored counties.

“The loss of so many votes,” the majority commented, “because of the continued use of machines that the state admits are substandard is arbitrary and cannot be considered rational in light of so-claimed, but unsupported, cost concerns.” The use of the challenged machinery, it found, was a violation of the 14th Amendment, whether reviewed under strct scrutiny or a rational basis standard.

State officials in Ohio now insist that at the May 2 primary, none of the challenged technology will be in use. All 88 counties in the state, according to the office of Secretary of State J. Kenneth Blackwell, will be using equipment that complies with a federal law — the Help American Vote Act of 2002 — and supposedly could eliminate the situation that led to the Circuit Court ruling.

The state’s lawyers had contended that the state’s decision to comply with the 2002 Act (and thus remain eligible for federal funds) made the case moot. All three judges on the Circuit Court panel rejected that argument, saying that “Ohio’s voluntary compliance with the Act is just that — voluntary. The state, should it wish to opt out of the Act’s demands, may do so at any time and the only penalty is the return of a prorated amount of the federal funds in proportion to the precints not converted to accepted technology. This is not the type of voluntary action that moots a case…”

Even if the case is not moot as a result of the state’s switch in technology, it might also be set aside if the state of Ohio seeks and obtains en banc review. Thus, there is real uncertainty whether the case ever would get to the Supreme Court in the form decided by the panel. Only the Supreme Court can answer a fundamental question about Bush v. Gore: did that ruling change the constitutional law of voter equality, with wide impact on elections, or was it a one-day, one-case ruling that has no effect as precedent?

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Lyle’s post on Alabama v. Adams, in which the state of Alabama urges the Court to reconsider its 2005 decision in Roper v. Simmons, has touched off a lively debate in the comments. One interesting aspect of the cert. petition itself is that the state is represented at the Court by Alabama Attorney General Troy King and Chief Deputy Attorney General Keith Miller (who serves as counsel of record). Alabama Solicitor General Kevin Newsom, who has argued at the Court and appears frequently on briefs filed there, does not appear on the petition.

The Supreme Court on Friday set Thursday, May 18, at 10 a.m. for the re-argument in Hudson v. Michigan (04-1360). That case tests whether evidence obtained from a police search must be excluded if police failed to knock and announce their presence before they carried out a search warrant of a home.

Barring any new developments in other cases, this will be the final argument of the current Term.