FedSoc Blog

Obama Announces Executive Order Protecting Federal Employees from Gender-Identity Discrimination

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by Publius
Posted July 01, 2014, 11:00 AM

The Washington Post reports:

President Obama on Monday announced he would sign an executive order protecting federal employees from being discriminated against on the basis of gender identity. Discriminating against federal employees based on sexual orientation is already banned.

Obama made the announcement at a Pride Month Celebration in the East Room of the White House, where the president and his wife, Michelle, recognized gay Americans who have been influential in their lives. He recounted the steps he has taken to advance gay rights, including signing hate crimes legislation and working to end the “don’t ask, don’t tell” policy in the military.

The executive order is Obama’s latest use of his administrative powers in this area. Earlier this month, he announced he would prohibit federal contractors from discriminating on the basis of sexual orientation or gender identity.

He made the announcement after years of pressure by gay rights advocates. Obama had called for passage of federal legislation prohibiting discrimination based on sexual orientation or gender identity, but Congress has declined to pass it.

Still, Obama said, his administration has “gone further in protecting the rights of lesbian and gay and bisexual and transgender Americans than any administration in history.”

In his remarks, Obama highlighted the presence of his former professor at Occidental College, Lawrence Goldyn, who was openly gay when Obama was studying there in 1979, before he transferred to Columbia University.

“When I went in as a freshman .. I guess there were maybe a couple of other gay professors, but they weren’t wildly open about it.  Lawrence was not shy,” the president said. “And I took a class from him, and because he was one of the young professors, we became really good friends.  But also, he was the first openly gay person that I knew who was unapologetic, who stood his ground.  If somebody gave him guff, he’d give them guff right back, and was, I think, part of a generation that really fought so many battles that ultimately came into fruition later.  And he also played a huge role in advising lesbian, gay and transgender students at the school at a time when that was still hard for a lot of young college kids.  And he went on to become a doctor and ran an AIDS clinic, and now is the head of a health center.”

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Laurence Tribe: The Supreme Court Was Right to Allow Anti-Abortion Protests

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by Publius
Posted June 27, 2014, 8:23 AM

Professor Laurence Tribe comments in the New York Times:

Even as a committed supporter of a woman’s — increasingly imperiled — right to choose, I must acknowledge that the Supreme Court got it right on Thursday.

In McCullen v. Coakley, the Court unanimously struck down a Massachusetts law setting a 35-foot buffer zone around abortion clinics. While the buffer zone was enacted to ensure the safety of women seeking abortions, it also restricted the peaceful activities of the plaintiff, Eleanor McCullen, and other opponents of abortion, who sought to stand on the sidewalk and urge those women not to make what they see as a tremendous mistake.

That I don’t share Ms. McCullen’s views is beside the point. The great virtue of our First Amendment is that it protects speech we hate just as vigorously as it protects speech we support. On Thursday, all nine justices united to reaffirm our nation’s commitment to allowing diverse views in our public spaces — although their unanimous result belied their divided reasoning.

Cases like McCullen force us to balance competing constitutional values: free speech against the safety and autonomy of women. Here the balance tips unquestionably toward speech. A woman’s right to choose whether or not to terminate her pregnancy under Roe v. Wade guarantees her protection from the state. This protection does not include a right to be shielded by the state from fellow citizens hoping to peacefully convince her that she’s making the wrong choice. In his opinion for the court, Chief Justice John G. Roberts Jr. affirmed the value of these personal conversations: “If all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners’ message.”

In that opinion, the court ruled, 5 to 4, that the Massachusetts statute was neutral with respect to the content of the speech that it sought to regulate — but was still unconstitutional because it restricted more speech than necessary to achieve its aim.

The chief justice and those joining him were right that the restriction was needlessly broad. Although Massachusetts officials claimed they had unsuccessfully attempted to implement less restrictive alternatives, Chief Justice Roberts emphatically declined to accept that contention on faith, echoing his recent opinion in the cellphone privacy cases, in which he found that neither the state nor the federal government had offered “evidence to suggest that their concerns” about law enforcement’s need to conduct cellphone searches without a judicial warrant “are based on actual experience.” That demand for evidence was a marked improvement over the court’s willingness in other recent free-speech cases to defer to naked government assertions about national security needs. . . .

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Supreme Court Strikes Down Obama Recess Appointments

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by Publius
Posted June 26, 2014, 10:02 AM

Politico reports:

In a rebuke to President Barack Obama, the Supreme Court struck down three of his recess appointments to the National Labor Relations Board as unconstitutional.

The decision gives the Senate broad power to thwart future recess appointments, but did not go as far as some conservatives hoped to undercut the president’s ability to fill vacant executive branch posts and judicial slots.

The court ruled 9-0 that Obama’s appointments were unconstitutional because the Senate was not truly in recess when he made them during a three-day break in pro forma meetings of the Senate.

Four of the justices would have gone further, ruling that the president exceeded his authority because the vacancies did not arise during that break and because the president’s recess appointment power only occurs during breaks between usually year-long sessions of the Senate, but five justices would not accept those arguments.

The case before the court was brought by a Pepsi bottler in Washington state, Noel Canning, and addressed the constitutionality of Obama’s decision to bypass the Senate by making politically sensitive recess appointments of three individuals to the NLRB and another to head the new Consumer Financial Protection Bureau.

The appointments came during a period when the Senate claimed to be in session, even though it was on a 20-day break. The chamber was gaveled in briefly every three days, apparently in an attempt to stymie recess appointments, and a Senate resolution said no business was to be conducted.

The Supreme Court’s decision Monday does not upset any current appointments. Obama has not exercised his recess appointment power since he named the three individuals to the labor panel and Richard Cordray to head the newly-created Consumer Financial Protection Bureau in 2012.

But the ruling’s impact at the moment could be less sweeping than when the current legal fight was set in motion two years ago. That’s because last November, Senate Democrats exercised the so-called nuclear option — doing away with the Republican minority’s power to use the filibuster to block action on most nominees with fewer than 60 votes. . . .

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Unanimous Supreme Court: Police Need Warrants to Search Cellphone Data

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by Publius
Posted June 25, 2014, 3:21 PM

The Wall Street Journal reports:

The Supreme Court ruled Wednesday police must almost always obtain a warrant before searching mobile devices seized when arresting someone, extending constitutional privacy protections to the increasingly vast amounts of data Americans keep on smartphones, cellphones and other hand-held digital technology.

The court, in a unanimous ruling by Chief Justice John Roberts, said both the quantity and quality of information contained in modern hand-held devices is constitutionally protected from police intrusion without a warrant.

"Modern cellphones aren't a technological convenience," Chief Justice Roberts wrote. "With all they contain and all they may reveal, they hold for many Americans 'the privacies of life,' " he wrote.

The ruling rejected law-enforcement arguments that cellphones fell under a long-standing exception to the warrant requirement that allows police to search the contents of suspects' pockets to make sure they don't carry weapons or destroy evidence.

Chief Justice Roberts acknowledged the decision would impede some police investigations. His response: "Privacy comes at a cost."

"Our answer to the question of what police must do before searching a cellphone seized incident to an arrest is accordingly simple—get a warrant," the chief justice added.

The decision was one in a pair Wednesday where the high court, which can sometimes seem quaintly behind the times, forcefully stepped into the digital age with decisions applying age-old doctrines to a society rapidly being transformed by new technology. The second decision involved online video technology by Aereo Inc., which was challenged by traditional broadcasters arguing it violated their copyrights. In Aereo, the court effectively said the company couldn't use technology workarounds to escape copyright restrictions for a service that captured broadcasting signals, recorded them and distributed someone else's content over the Web.

Lower courts were split on the cellphone-warrant question, and the justices themselves have been grappling with the bounds of privacy in the digital age.

Privacy advocates hailed the ruling as a landmark, a bold signal that the court would protect constitutional privacy interests from the vast powers of modern technology. "By recognizing that the digital revolution has transformed our expectations of privacy, today's decision is itself revolutionary and will help to protect the privacy rights of all Americans," said Steven R. Shapiro, legal director of the American Civil Liberties Union.

Senate Judiciary Chairman Patrick Leahy (D., Vt.) called the decision "a wake-up call that we need to update our laws to keep pace with technological advances." . . .

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Ninth Circuit Rules Potential Gay Jurors May Not be Barred

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by Publius
Posted June 25, 2014, 9:35 AM

Pamela A. MacLean writes at Trial Insider blog:

The 9th Circuit let stand its January decision that potential jurors may not be blocked from selection simply because they are gay, in an antitrust case over HIV medication pricing.

The full court was asked to reconsider the opinion that constitutional equal protection  rights prohibit lawyers from using peremptory strikes to cut potential jurors based on sexual orientation.  In an order issued Tuesday, a majority of the 29 judges refused to grant en banc review of the opinion, with three dissenting votes.

In dissent, Judge Diarmuid O’Scannlain wrote, “The opinion’s unprecedented application of heightened scrutiny to a peremptory strike of a juror who was perceived to be gay bears significant implications for the same-sex marriage debate and for other laws that may give rise to distinctions based on sexual orientation.”  He was joined by Judges Jay Bybee and Carlos Bea.

He pointed out the 9th U.S. Circuit Court of Appeals is the first among the circuits to declare that equal protection requires the restriction since the U.S. Supreme Court ruled last year in the Windsor case giving a lesbian widow inheritance rights.

The order leaves the  U.S. Supreme as the last chance to change the ruling, if it is appealed.

The dispute began during jury selection in a 2011 antitrust trial in which Abbott Labs used a peremptory challenge to remove a juror who disclosed he had a male partner.

The opposing lawyer from Glaxo SmithKline Beecham objected, arguing it was impermissible to bar a potential juror based on sexual orientation.  The trial judge rejected the challenge.

Glaxo sued Abbott Labs claiming antitrust, contract violations and unfair trade practice in a licensing agreement and pricing of HIV medication, which raised considerable controversy in the gay community.

“Strikes exercised on the basis of sexual orientation continue this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation’s most cherished rites and rituals,” wrote Judge Stephen Reinhardt for the panel.

In an odd twist, the potential juror in the case said he worked for the 9th Circuit.  He said he was a computer technician in San Francisco and revealed during questioning that his “partner” studied economics and investments.  During follow-up questions, the prospective juror referred to his partner three times as “he” and said he had friends with HIV.  But the juror also said he had no knowledge of the medications, Norvir, Kaletra and Lexiva, which were subject of the antitrust trial.

Abbott’s attorney struck the juror and the Glaxo attorney immediately objected because it appeared to be based on the juror’s apparent homosexuality.

Existing case law already bars exclusion of jurors based on race, ethnicity or gender.  When a minority juror is struck the lawyer must explain the non-discriminatory basis for striking the juror.

At the end of a four-week trial, the jury returned a mixed verdict.  It favored Abbott on the antitrust claim and sided with Glaxo on the contract claims.  It awarded $3.4 million in damages to Glaxo.

Abbott appealed the contract verdict.  Glaxo also appealed seeking a new trial.

Judge Stephen Reinhardt applied the U.S. Supreme Court’s 2013 precedent in Windsor, which struck down the portion of the Defense of Marriage Act that discriminated in the tax treatment of a widowed lesbian.  He said Windsor “requires that heightened scrutiny be applied to equal protection claims involving sexual orientation.”

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Party Like It’s 1999 — the Denial of a Press Credential to SCOTUSblog

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by Publius
Posted June 24, 2014, 8:19 AM

Eugene Volokh comments at the Volokh Conspiracy:

The Standing Committee of Correspondents of the Senate Press Gallery — a reporters’ organization, not a government entity — has upheld the denial of a press credential to SCOTUSblog. Because the Supreme Court’s press credential decisions generally turn on whether an entity has gotten a credential from the Senate Press Gallery, this means SCOTUSblog won’t have a credential to cover the Court, either. This will make it harder for SCOTUSblog to cover the Court than it is for mainstream media organizations, though it won’t make such coverage impossible. (Tom Goldstein of SCOTUSblog has his own post about this.)

This, it seems to me, is more than just a mistake in this case — a denial of a credential to the most important and valuable source of news and analysis about the Supreme Court. Rather, the decision shows that the Press Gallery (whether because of the structure of its rules or because of its application of the rules) is missing one of the key advances brought about by Internet media technology.

By making it possible for anyone to communicate to the world at large, the Internet makes feasible (among other things) reporting and analysis by experts in the field — not just reporters who often lack the experts’ experience, education, or specialization, and not just by large mainstream media organizations that understandably lack a commitment to truly deep coverage of a particular issue.

If you’re interested in the latest decisions about computer crime law, you are no longer limited in reading what reporters who know little about computer crime law have to say about it; you can also come to this blog and read Orin Kerr, the leading American expert on computer crime law. If you’re interested in breaking news stories about appellate decisions, you can read appellate lawyer Howard Bashman’s posts on How Appealing. If you’re interested in linguistics stories in the news, you can read the linguistics professors at Language Log. If you’re interested in the Supreme Court, you can read the unparalleled resources put together by SCOTUSblog, which was founded by Tom Goldstein, one of the nation’s leading Supreme Court litigators.

And you can read these items without the filtering, oversimplification, and distortion that usually happen when nonexpert journalists write about technical issues — and that often happen even when the best, most knowledgeable nonexpert journalists write about such issues. Of course, you can still choose to read nonexpert journalists’ stories on the subject, precisely because you value the filtering and simplification that the nonexpert journalists provide; often, that’s what one wants, especially on subjects in which one has only modest interest. But sometimes, you want to go straight to someone who has decades of professional experience actually working on what he’s writing about.

Yet the Senate Press Gallery decision excludes a wide range of such expert writers. . . .

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Supreme Court Limits EPA Power to Regulate Greenhouse Gas Pollution

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by Publius
Posted June 23, 2014, 1:39 PM

McClatchy News Service reports:

A fractured Supreme Court on Monday limited but did not eradicate the Environmental Protection Agency’s power to regulate certain greenhouse gas emissions.

In a complex 5-4 decision, the court’s conservatives declared the EPA cannot require stationary polluters to get permits solely because they might emit greenhouse gases. But if a permit is needed because of other emissions, the court acknowledged, regulators can compel use of certain greenhouse gas control technologies.

“We think it beyond reasonable debate that requiring permits for sources based solely on their emissions of greenhouse gases...would be incompatible with the substance of Congress’ regulatory scheme,” Justice Antonin Scalia wrote for the majority.

At the same time, the court agreed that for polluters already regulated for non-greenhouse gas emissions, the EPA can require use of so-called best available control technology.

“Applying BACT to greenhouse gases is not so disastrously unworkable, and need not result in such a dramatic expansion of agency authority, as to convince us that EPA’s interpretation is unreasonable,” Scalia wrote.

Scalia further stressed that the ruling Monday would only restrain the EPA from regulating a small percentage of greenhouse-gas polluters. The ruling, moreover, does not affect other Obama administration proposals to control greenhouse gases under different Clean Air Act provisions.

More than half of the nation’s states took sides in the dispute over federal authority to regulate stationary greenhouse gas emissions. Conservative lawmakers such as Senate Minority Leader Mitch McConnell, R-Ky., faced off against Southern California air pollution managers.

The decision consolidated six lawsuits that challenged Environmental Protection Agency rules. The lawsuits boiled down to one central question: Did the EPA overstep its bounds in regulating stationary greenhouse gas emissions based on an earlier determination that it could regulate such emissions from motor vehicles?

The Supreme Court’s four dissenters said Monday the EPA acted reasonably.

“What sense does it make to read the Act as generally granting the EPA the authority to regulate greenhouse gas emissions and then to read it as denying that power with respect to the programs for large stationary sources at issue here?” Justice Stephen Breyer questioned in dissent.

In a 2007 case, a closely divided court held that the Clean Air Act gave the EPA authority to regulate greenhouse gases, which contribute to global climate change. A hotter planet, in turn, has been linked to worsening ozone pollution, more intense forest fires, increased drought and a host of human respiratory problems, among other things.

Targeting six greenhouse gases, including carbon dioxide and methane, the EPA set tailpipe emission standards for cars and light trucks.

The EPA further reasoned that since the six greenhouse gases were deemed dangerous enough to regulate as tailpipe emissions, they must also fall under the pre-construction permit requirements for stationary emission sources, such as small industrial plants and agricultural facilities. . . .

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ABA: Lawyers Can Scour Jurors’ Social Media Sites

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by Publius
Posted June 23, 2014, 8:10 AM

The Associated Press reports:

Lawyers have been given the green light to scan the social media sites of jurors.

The American Bar Association says it's ethical for lawyers to scour online for publicly available musings of citizens called for jury service - and even jurors in deliberations.

But the ABA does warn lawyers against actively "following" or "friending" jurors or otherwise invading their private Internet areas.

Though judges now universally admonish jurors to refrain from discussing trials on social media, the nationwide lawyers group for the first time is addressing how deeply attorneys, their investigators and their consultants can probe for information that might signal leanings of potential jurors, or unearth juror misconduct during trials.

Jurors' online postings have disrupted many legal proceedings over the years, causing mistrials and special hearings over the effects of Facebook musings, tweets and blog writings about their trial experiences. Lawyers and judges have also been wrangling over how far attorneys can go in assembling a jury with help from online research of jurors' social media habits.

A few judges have denied lawyers permission to research social media sites as overly invasive while others have allowed it. One company has gone so far as to develop a software product that promises to create a juror profile through social media posts and monitor jurors during the trial.

The ABA's ethics committee began reviewing the issue about two years ago and concluded in April that looking at Facebook posts, Twitter tweets and other information gathered passively is ethical research.

"It's like any other publicly available information," said Donald Lundberg, an Indianapolis, Indiana, attorney who helped draft the ABA's opinion as an ethics committee member.

Lundberg said one of the thornier issues for the committee was whether lawyers could view LinkedIn and other social media sites that notify members that they have been searched.

Ultimately, the ABA committee decided a LinkedIn search was ethically sound, which runs counter to an opinion issued by the New York City Bar Association in 2010 that said any notice sent to a potential juror about a search amounts to an unauthorized communication. . . .

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New Post-Decision SCOTUScast: Burt v. Titlow

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by SCOTUScaster
Posted June 19, 2014, 3:32 PM

On November 5, 2013, the Supreme Court issued its decision in Burt v. Titlow. This case involves an appeal by the State of Michigan from a federal grant of habeas relief to a state prisoner. The question was whether a federal appellate court, the Sixth Circuit, erred in granting habeas relief to a prisoner on the grounds that she was denied effective assistance of counsel when her attorney allowed her to withdraw a manslaughter plea and maintain a claim of innocence, with the result that she was convicted of second-degree murder, a more serious crime.

By a vote of 9-0, the Supreme Court reversed the Sixth Circuit. In an opinion delivered by Justice Alito, the Court held that the Sixth Circuit failed to apply the "doubly deferential" standard of review recognized by the Court's case law when it refused to credit a lower state court's reasonable factual finding and assumed that counsel was ineffective where the record was silent. Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, Breyer, Sotomayor, and Kagan joined Justice Alito's opinion. Justice Sotomayor also filed a concurring opinion and Justice Ginsburg concurred in the judgment only.

To discuss the case, we have Ron Eisenberg, Deputy District Attorney, Philadelphia District Attorney's Office.

Click here to view this article on the source site »

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Argentina’s Supreme Court Loss May Serve as a Wake-Up Call

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by Publius
Posted June 19, 2014, 8:49 AM

Charles Lane comments in the Washington Post:

The world would be a much better place if Argentina were more like Detroit. Messed up as the Motor City’s finances may be, at least the city is covered by U.S. bankruptcy law, under which the municipal government and its creditors are working out a binding settlement under the supervision of a federal judge. One way or another, Detroit’s debt nightmare will end, and the city will get a fresh start.

No bankruptcy system applies to nations, though. “The entire sovereign debt system is set up around unenforceable contracts,” Anna Gelpern, a Georgetown University law professor who specializes in this arcane area, told me. Scary thought, that.

So, when a country like Argentina defaults, strange things can happen. In years gone by, the U.S. Navy might show up demanding gold. Nowadays, we have epic legal clashes such as the one between Buenos Aires and Wall Street hedge funds, which has just culminated in victory for the hedgies at the U.S. Supreme Court.

Fought out in courtrooms and the pages of major newspapers, where the two sides hurled vitriolic rhetoric at each other in paid advertisements, the case pitted the irresponsible populists who ran Argentina into the ground against financiers who insisted on every last dollar owed them. Argentina’s hard-pressed people will be the losers no matter what happens, you can be sure.

Still, the hedge funds’ victory may ultimately serve the global public interest, if there is such a thing. For both sovereign debtors and those who would lend them money, it amounts to a needed reminder about the actual risks involved in borrowing and lending on lightly regulated global financial markets and, possibly, an incentive to deal with those risks more transparently.

Absent global bankruptcy law, countries and creditors seek a second-best solution: bond agreements, a key provision of which is that any disputes get decided in U.S. courts. Humiliating as that may be to the Argentinas of the world, no one would lend them money without contractually guaranteed recourse to a venue where the rule of law is well established.

The Supreme Court left intact New York court rulings to the effect that a standard provision of Argentina’s bonds, the pari passu clause, put a small minority of holdout hedge funds in line to get paid ahead of the majority that accepted pennies on the dollar when Argentina “restructured” its debts. And the courts put teeth in that ruling by forbidding other New York banks from facilitating bond payments by Argentina until the holdouts are satisified.

The legal reasoning was complex but boiled down to this: Tough luck, Argentina. You knew — or should have known — what you were getting into when you sold the bonds, which included a waiver of your sovereign immunity.

Checkmated, Buenos Aires faces this choice: Pay the hedgies $1.3 billion, which might open the door to an additional $15 billion in claims by others, or lose access to the U.S. financial system. A separate Supreme Court ruling empowers the hedge funds to identify Argentine assets around the world, the prelude to seizing them.

This threatens Argentina’s economy but probably not the world’s. . . .

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U.S. Patent and Trademark Office Cancels Redskins Trademark Registration, Says Name Is Disparaging

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by Publius
Posted June 18, 2014, 4:08 PM

According to the Washington Post:

The United States Patent and Trademark Office has canceled the Washington Redskins trademark registration, calling the football team’s name “disparaging to Native Americans.”

The landmark case, which appeared before the Trademark Trial and Appeal Board, was filed on behalf of five Native Americans. It was the second time such a case was filed.

“This victory was a long time coming and reflects the hard work of many attorneys at our firm,” said lead attorney Jesse Witten, of Drinker Biddle & Reath.

Federal trademark law does not permit registration of trademarks that “may disparage” individuals or groups or “bring them into contempt or disrepute.” The ruling pertains to six different trademarks associated with the team, each containing the word “Redskin.”

“We are extraordinarily gratified to have prevailed in this case,” Alfred Putnam Jr., the chairman of Drinker Biddle & Reath, said. “The dedication and professionalism of our attorneys and the determination of our clients have resulted in a milestone victory that will serve as an historic precedent.”

The ruling does not mean that the Redskins have to change the name of the team. It does affect whether the team and the NFL can make money from merchandising because it limits the team’s legal options when others use the logos and the name on T shirts, sweatshirts, beer glasses and license plate holders.

In addition, Native Americans have won at this stage before, in 1999. But the team and the NFL won an appeal to federal court in 2009. The court did not rule on the merits of the case, however, but threw it out, saying that the plaintiffs didn’t have standing to file it. The team is likely to make the same appeal this time. . . .

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Second Circuit Adopts a Fourth Amendment Right to the Deletion of Non-Responsive Computer Files

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by Publius
Posted June 18, 2014, 12:36 PM

Orin Kerr comments at the Volokh Conspiracy:

The Second Circuit has handed down a very important new Fourth Amendment case, United States v. Ganias. In an opinion by Judge Chin, the court held that the government violates the Fourth Amendment when it indefinitely retains computer files that were seized pursuant to a search warrant but are not responsive to the warrant.

By way of background, courts have long held that the practicality of computer search and seizure allows government agents to seize computers and search them later for responsive files. In Ganias, the Second Circuit makes clear that the government’s right to overseize is temporary, and that it has no right to continue to retain the non-responsive files indefinitely. The court doesn’t say exactly when the government has to destroy, delete, or return its copy of the non-responsive files. But the Second Circuit does make clear that the government has such a duty: Continued retention of the files is a Fourth Amendment “seizure,” the Court holds, and eventually the retention goes on for so long that the retention is unreasonable. Put simply, individuals have a right to the deletion or return of non-responsive computer files.

This is a hugely important case.

A quick recap of the facts. In 2003, the government obtained a warrant to search the Ganias’s accounting business for evidence of fraud. When executing the 2003 warrant, the agents did not seize any physical computers. Instead, they made images of several computers (that is, perfect copies of every file on the computers) and took away the images while leaving the original computers behind. The agents copied the images onto 19 DVDs. Investigators took their time in searching the DVDs, but by a year later they had searched the images for the files that were responsive to the warrant. The agents kept the DVDs, which they saw as government property. Later on, agents came to think that Ganias was involved in tax offenses, too. They realized that the evidence of tax crimes could be on the DVDs in their possession. The agents obtained an additional warrant to search the DVDs again, this time for evidence of tax offenses. The government ended up searching the DVDs under the second warrant in 2006, about two-and-a-half years after it had initially entered Ganias’s business and copied his computer files pursuant to the 2003 warrant.

The Second Circuit held that retaining the files on the DVDs that were not responsive to the first warrant was an unreasonable seizure in violation of the Fourth Amendment. The Court suppressed the fruits of the second warrant because that search should never have occurred. Here’s the key language . . . .

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Josh Blackman: Our Gun-Shy Justices

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by Publius
Posted June 18, 2014, 9:05 AM

Josh Blackman, assistant professor at South Texas College of Law, writes at his blog:

In the July issue of the American Spectator, I have an essay that chronicles the Supreme Court’s abdication of the Second Amendment since Heller and McDonald, through denial of certiorari on every single petition. The article is titled, “OUR GUN-SHY JUSTICES The Supreme Court abandons the Second Amendment.” Here is the Marquez-inspired introduction:

After two hundred years of solitude, the Second Amendment now means what it has always said: Our Constitution guarantees the people a right to keep and bear arms. But since McDonald v. City of Chicago, the Supreme Court’s landmark decision of 2010, the justices seemingly have taken a vow of silence on the meaning of this fundamental right.Over the last four years, in case after case, lower courts have accepted interpretations of the Second Amendment that have rendered it weak or nonexistent. Each time, a gun control scheme was found constitutional. Each time, once Second Amendment advocates reached the final request for appeal, the Supreme Court declined to review the ruling.With each additional attempt, a sense of déjà vu sets in, always with the same emptiness: “The petition for a writ of certiorari is denied.” There is no indication whether the lower courts are right or wrong, whether they have strayed from precedent or followed it faithfully. The Supreme Court, content with the status quo, has knowingly and willingly abandoned the Second Amendment to the judges below….

The Second Amendment is trapped somewhere between legal limbo and constitutional purgatory. 

In the article , I focus on 7 of the most high-profile cases that all challenged whether the Second Amendment applies outside the home—the logical follow-up to deciding that the Second Amendment protects a right to own a gun at home. Though the lower courts fractured about how to approach this issue, the Justices turned each appeal away.

  1. Williams v. Maryland (Md. 2010), cert denied on 10/3/11.

  2. United States v. Masciandaro (4th Cir. 2010), cert denied on 11/28/11

  3. Kachalsky v. Westchester County (2nd Cir. 2012), cert denied on 4/15/13.

  4. Woollard v. Gallagher (4th Cir. 2012), cert denied on 10/15/13.

  5. Chardin v. Police Commissioner of Boston (Mass. 2013), cert denied on 11/4/13.

  6. National Rifle Association v. McCraw (5th Cir. 2013), cert denied on 2/24/14.

  7. Drake v. Jerejian (3rd Cir. 2013), cert denied on 5/5/2014.

And, after the issue went to press, the Court denied Kwong v. DeBlasio (2nd Cir. 2013).

There is still hope, as the Peruta case from the 9th Circuit, currently pending en banc review, gives the Court one more, potentially last chance, to weigh on whether the Second Amendment applies outside the home. But, as I close in the article:

But if the Supreme Court denies review in Peruta, we may find ourselves running out of options. By ignoring this issue, the Court will have left the Second Amend- ment to wither on the vine. The right to keep and bear arms will be reduced to a hollow privilege in many states. Regardless of how the Court would resolve the tangled mess of lower precedents, the failure to even confront it, and rule on it, stands as a jur- isprudential abandonment of the Second Amendment.

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Argentina Refuses to Pay $1.5 Billion Judgment

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by Publius
Posted June 17, 2014, 12:10 PM

The AP reports:

President Cristina Fernandez says Argentina can't possibly comply with U.S. court orders to pay $1.5 billion in cash to winners of a decade-long debt dispute, the position her country was left in Monday when the U.S. Supreme Court refused to hear her government's final appeal.

Delivering a nationally broadcast address Monday night, Fernandez expressed willingness to negotiate, but said there is simply no way that Argentina can pay in cash, in full, starting just two weeks from now, which is what the U.S. courts have ordered.

"What I cannot do as president is submit the country to such extortion," Fernandez said.

Under the U.S. court orders, Argentina must hand over $907 million to the plaintiffs, or lose the ability to use the U.S. financial system to pay an equal amount due June 30 to holders of other Argentine bonds.

Fernandez said the total owed to the plaintiffs is $1.5 billion including interest, and paying it all immediately in cash the way the courts ordered could trigger another $15 billion in other cash payments to the remaining holders of defaulted debt. That "is not only absurd but impossible," since it represents more than half the Central Bank's remaining foreign reserves, she said.

She repeatedly vowed to keep making payments on the vast majority of the country's performing debts, which are held by bondholders who agreed previously to provide debt relief that enabled Argentina to rebound from its economic crisis of 2001. Even if Argentina can't use the U.S. financial system to do so, she said, teams of experts are working on ways to avoid such a default and keep Argentina's promises.

Meanwhile, she suggested that she has a moral obligation not to make the court-ordered payments to NML Capital Ltd. and other investors she calls "vulture funds."

"It's our obligation to take responsibility for paying our creditors, but not to become the victims of extortion by speculators," Fernandez said.

The president said her government has repeatedly shown its willingness and ability to negotiate debt accords, and called on her countrymen to "remain tranquil" despite the Supreme Court loss. "It was known that this would happen," she said.

Earlier Monday, the markets reacted in fear that Fernandez would take just such a stance. Argentine stocks plunged as economists, analysts and opposition politicians practically begged her to comply.

The justices not only rejected Argentina's appeal without comment - they also ruled 7-1 that bondholders could force Argentina to reveal where it owns property around the world. That could make it easier to collect on other debts that have gone unpaid since Argentina's economy collapsed. . . .

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Split Supreme Court Shoots Down “Straw” Gun Purchases

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by Publius
Posted June 17, 2014, 9:18 AM

The Christian Science Monitor reports:

The US Supreme Court on Monday upheld the conviction of a former police officer who purchased a $400 Glock handgun for his uncle but failed to disclose his role as a straw purchaser on federal firearms disclosure forms.

The 5-to-4 decision is important because it embraces a broad reading of the disclosure requirements in federal gun regulations.

The decision comes at a time of heightened public concern about mass shootings in the US and finding ways to prevent weapons from falling into the wrong hands.
Recommended: How much do you know about the Second Amendment? A quiz.

The case before the high court involved a Virginia man, Bruce Abramski, who was sentenced to five years probation for claiming that he was the actual buyer of the weapon.

Mr. Abramski’s lawyers argued on appeal that he was wrongly convicted because his role in the purchase was not material to the lawfulness of the sale.

They argued that Abramski and his uncle, Angel Alvarez of Pennsylvania, were both legally eligible to purchase and possess firearms and that it didn’t matter whether Abramski made the purchase or Alvarez did so.

Abramski said he was involved in the purchase in an attempt to obtain a law enforcement discount for the firearm and pass the savings on to his uncle.

The uncle sent a check for the $400 purchase price. Abramski later transferred the gun to his uncle at a federally licensed gun dealer.

Nonetheless, federal prosecutors said Abramski committed a federal crime during the purchase because he failed to disclose on forms that he was not the actual purchaser of the weapon.

In a 5-to-4 ruling, the high court agreed with the prosecutors that Abramski’s actions violated federal firearms statutes.

“No piece of information is more important under federal firearms law than the identity of a gun’s purchaser,” Justice Elena Kagan wrote in the majority opinion. “Had Abramski admitted that he was not that purchaser, but merely a straw … the sale here could not have gone forward.”

Justice Kagan said Abramski’s misrepresentation on the federal form was, therefore, material to the lawfulness of the transaction.

In a dissent, Justice Antonin Scalia said Abramski’s false statement was not material to the lawfulness of the sale because both Abramski and his uncle could have lawfully purchased the weapon.

He said the government and the majority justices engaged in a strained interpretation of the statute to render Abramski’s conduct illegal. . . .

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