Counsel’s Ninth Circuit arguments on behalf of copyright troll Prenda Law did not go well, to put it mildly. Trouble was evident even before Judge Pregerson commented, regarding the clients, “They should have asserted the Fifth Amendment because they were engaged in extortion.” [Ken at Popehat; Joe Mullin, Ars Technica] More on the Prenda Law saga here.
- Judge chides Montgomery County, Md. police for “unlawful invasion” of family’s home [my new Free State Notes post]
- As more offenses get redefined as “trafficking,” state extends its powers of surveillance and punishment [Alison Somin on pioneering Gail Heriot dissent in U.S. Commission for Civil Rights report; Elizabeth Nolan Brown/Reason on legislative proposals from Sens. Portman and Feinstein] Proposal in Washington legislature would empower police to seize/forfeit cars of those arrested for soliciting prostitutes, whether or not ever convicted [Seattle Times]
- Progressives and the prison state: “most of the intellectual and legal scaffolding of the contemporary American carceral system was erected by Democrats.” [Thaddeus Russell reviewing new Naomi Murakawa book The First Civil Right: How Liberals Built Prison America]
- Here comes the next verbal conflation with negative implications for defendants’ rights, “traffic violence” [Scott Greenfield]
- Please don’t pay attention to what goes on inside Florida prisons, it would only spoil your day [Fred Grimm, Miami Herald via Radley Balko]
- Trouble in California: “U.S. judges see ‘epidemic’ of prosecutorial misconduct in state” [L.A. Times, Ronald Collins/Concurring Opinions, video from Baca v. Adams with Judges Kozinski, Wardlaw, W. Fletcher, earlier on California Attorney General Kamala Harris and Moonlight Fire case] But will Ninth Circuit’s strong words change anything? [Scott Greenfield including updates]
- “Plea Bargaining and the Innocent: It’s up to judges to restore balance” [U.S. District Judge John Kane]
- Sorry, National Review, but the marriage rulings are really nothing at all like Dred Scott [my new piece at The Daily Beast] Or Roe v. Wade either [Dale Carpenter, Ilya Shapiro, Charles Lane]
- Ninth Circuit won’t get the message about not expropriating raisin farmers and it’s time for the Court to remind it again [also Ilya Shapiro, earlier]
- Private businesses, even those that are quasi-public like Amtrak, shouldn’t be delegated the right to regulate their competitors [Ilya Shapiro yet a third time]
- “Supreme Court takes case on duration of traffic stops” [Orin Kerr, Rodriguez v. United States]
- Housing disparate impact theory, dodged by administration last time around, returns to Court [Bloomberg, Daniel Fisher; Texas Department of Housing and Community Affairs v. The Inclusive Communities Project; earlier]
- Noteworthy feature of just-argued wage-and-hour case is that Obama Department of Labor is taking the employer side [Denniston, SCOTUSBlog; Integrity Staffing Solutions v. Busk]
- “Supreme Court to hear case on right of Maryland to tax out-of-state income” [Ashley Westerman, Capital News Service]
- Mark your calendar if in D.C.: I’ll be moderating a Nov. 3 talk at Cato by Damon Root about his new book Overruled: The Long War for Control of the U.S. Supreme Court, with commentary from Roger Pilon and Jeffrey Rosen [Reason]
I’ve got a post at Cato at Liberty on today’s big decision in Peruta v. County of San Diego, in which a Ninth Circuit panel struck down a licensing scheme under California law in which even persons with legitimate self-defense concerns were unable to get permission to carry handguns outside the home.
More from David Kopel and Eugene Volokh on how “today’s decision creates a split of the Seventh and Ninth Circuits vs. the Second, Third, and Fourth Circuits,” on the court’s reasoning on open vs. concealed carry (an individual right to bear implies that at least one of the two must be allowed), and on how the substantial majority of states already have laws according respect to the freedoms at issue here (& welcome Jim Geraghty/NRO readers; I was also a guest on the Michael Graham Show Friday afternoon to discuss the ruling).
- “The patent had an interesting enforcement clause: that anyone who copied [ship designer] Brunelleschi’s work would have their own designs set on fire” [Jeremy Kolassa, R Street]
- British government investigates problem of orphan copyright works [U.K. Intellectual Property Office, earlier]
- Hookah’s design not copyrightable, per Ninth Circuit, O’Scannlain, Garber, Bea [Inhale v. Starbuzz Tobacco]
- From EFF’s “Copyright Week”: what if the penalty that accompanied a parking ticket varied unknowably and might amount to a year’s salary? [Mitch Stoltz] “Copyright’s not getting its work done” [Cathy Gellis]
- Nineteenth Century’s sewing machine patent wars resembled today’s smartphone wars, but ended more or less happily [Adam Mossoff, Slate]
- Universities that post papers by their own scholars hear from Elsevier’s lawyers [ABA Journal]
- Likelihood of confusion? Underwear maker Hanes cease/desists hummus maker in Saskatoon, Canada with name derived from “Yohannes” (= “John”)[ABC News, Craig Lederhouse, CBC (auto-plays radio)]
In my offhand judgment, Justice Breyer’s argument about the ATS and its “fit” with the presumption [against extraterritoriality] has force. (The Chief has an answer, but it’s a very close call.) What this is actually about, though, is a monitoring problem; and on that, the Chief is right.
The ATS has become a playpen for a cabal of international law enthusiasts and plaintiffs’ lawyers. Couple the former’s wild-eyed global aspirations with the latter’s eagerness to drag corporations through our one-of-a-kind tort system, and it’s Katy, bar the door. The Chief’s rule blocks all that: if it happened abroad, that’s it. Justice Breyer’s position, in contrast, would compel the Court to monitor all the places and institutions where this stuff gets out of hand: the Ninth Circuit; the wildest district courts in the country; the folks who are in charge of the Restatement of Foreign Relations; and the people who crank up “customary” international law (which becomes “customary” when someone at Yale Law School says it is, and the Swedish Minister of Foreign Affairs agrees). If some foreign employees of a U.S. company sue other employees of that company over tortious sexual harassment at the company’s foreign plants, has the defendants’ conduct “substantially and adversely affect[ed] an important American national interest,” that of serving as a beacon of sexual equality in the world? You tell me.
To ask the Supreme Court to keep an eye on this is to declare surrender. So it’s good that the Court has drawn a line. Whether it’ll hold, we’ll see.
- Ninth Circuit dissent: ruling “jeopardizes academic freedom” by making it too easy for students to sue professors [WSJ Law Blog]
- When the bumptious and sociopathic go after our blogging friend, it’s Ken 1, b./s.-ers zero [Popehat]
- Uh-oh: “Election Results Seen as Victory for Business of Law” [Gina Passarella, The Legal Intelligencer]
- In the mail: “How to Feed a Lawyer: And Other Irreverent Observations from the Legal Underground” [Evan Schaeffer]
- “Cato Files Brief in the First Federal Appeal Regarding the Contraception Mandate” [Ilya Shapiro, earlier here, here, etc.]
- “Judicial independence” campaigners snooze through unfair attacks on D.C. Circuit [WSJ, earlier]
- “Anyone whose blood pressure needs a boost should check out Overlawyered…” [James DeLong, American Thinker]
A new type of Ninth Circuit opinion. [Joe Palazzolo, WSJ Law Blog]
A three-judge panel of the Ninth Circuit led by Judge Stephen Trott has rejected a settlement between class action lawyers and Kellogg over allegedly misleading promotion of its Frosted Mini-Wheats cereal. The settlement involved a smallish refund offer for the class of consumers, an unrelated food giveaway (so-called cy pres relief, given to beneficiaries other than the class initially wronged), and $2 million to the plaintiff’s lawyers, or roughly $2,100 an hour. [Hans von Spakowsky/PJ Media, Ted Frank/PoL, ABA Journal]
As green czars go, the powers of the Environmental Protection Agency and its administrator are at least circumscribed by law, the powers of the Ninth Circuit U.S. Court of Appeals much less so. When a majority of the circuit ruled the other day that California could not resume permitting suction panning of riverbeds for traces of gold, Judge Milan Smith Jr. along with three colleagues dissented with some asperity. “Here we go again,” he began, and went on to cite Gulliver bound by the Lilliputians. To quote the WSJ Law Blog:
No legislature or regulatory agency would enact sweeping rules that create such economic chaos, shutter entire industries, and cause thousands of people to lose their jobs. That is because the legislative and executive branches are directly accountable to the people through elections, and its members know they would be removed swiftly from office were they to enact such rules,” he wrote.
“Unfortunately,” he added, “I believe the record is clear that our court has strayed with lamentable frequency from its constitutionally limited role.”