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Nothing to do with Kelo, just after discussing things with you, it's my assessment of how you approach issues. If I'm wrong, please feel free to correct me.
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Jun 23, 2019 19:00
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Ogmius815 posted:“Debt that eventually results in a profit can’t possibly be bad for chronically cash-poor local governments” said the person who clearly has never actually paid attention to local government in even a superficial way. It can't. But it's also irrelevant because the public use argument for affordable housing on disused land is completely different from the Kelo argument of "uh maybe we'll collect more taxes eventually perhaps maybe (not really)" Dead Reckoning posted:Nothing to do with Kelo, just after discussing things with you, it's my assessment of how you approach issues. If I'm wrong, please feel free to correct me. If you want to make the argument that I'm doing that here, make it, if you're just nebulously complaining about a strawman argument you imagine I made some other time, I don't see what that adds to the conversation.
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Jun 23, 2019 19:10
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VitalSigns posted:It can't. Have you never read DR's posts in this thread or what?
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Jun 23, 2019 20:33
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 Opinions! UNITED STATES v. DAVIS ET AL. Holding / Majority Opinion (Gorsuch): In our constitutional order, a vague law is no law at all. Only the people’s elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements. They hand off the legislature’s responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct. When Congress passes a vague law, the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again. Today we apply these principles to 18 U. S. C. §924(c). That statute threatens long prison sentences for anyone who uses a firearm in connection with certain other federal crimes. But which other federal crimes? The statute’s residual clause points to those felonies “that by [their] nature, involv[e] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Even the government admits that this language, read in the way nearly everyone (including the government) has long understood it, provides no reliable way to determine which offenses qualify as crimes of violence and thus is unconstitutionally vague. So today the government attempts a new and alternative reading designed to save the residual clause. But this reading, it turns out, cannot be squared with the statute’s text, context, and history. Were we to adopt it, we would be effectively stepping outside our role as judges and writing a new law rather than applying the one Congress adopted. … Vague laws contravene the “first essential of due process of law” that statutes must give people “of common intelligence” fair notice of what the law demands of them. Vague laws also undermine the Constitution’s separation of powers and the democratic self-governance it aims to protect. Only the people’s elected representatives in the legislature are authorized to “make an act a crime.” Vague statutes threaten to hand responsibility for defining crimes to relatively unaccountable police, prosecutors, and judges, eroding the people’s ability to oversee the creation of the laws they are expected to abide. In recent years, this Court has applied these principles to two statutes that bear more than a passing resemblance to §924(c)(3)(B)’s residual clause. In Johnson v. United States, the Court addressed the residual clause of the Armed Career Criminal Act (ACCA), which defined a “violent felony” to include offenses that presented a “serious potential risk of physical injury to another.” The ACCA’s residual clause required judges to use a form of what we’ve called the “categorical approach” to determine whether an offense qualified as a violent felony….Johnson held this judicial inquiry produced “more unpredictability and arbitrariness” when it comes to specifying unlawful conduct than the Constitution allows. Next, in Sessions v. Dimaya, we considered the residual clause of 18 U. S. C. §16, which defines a “crime of violence” for purposes of many federal statutes. Like §924(c)(3), §16 contains an elements clause and a residual clause. The only difference is that §16’s elements clause, unlike §924(c)(3)’s elements clause, isn’t limited to felonies; but there’s no material difference in the language or scope of the statutes’ residual clauses. As with the ACCA, our precedent under §16’s residual clause required courts to use the categorical approach to determine whether an offense qualified as a crime of violence....And, again as with the ACCA, we held that §16’s residual clause was unconstitutionally vague because it required courts “to picture the kind of conduct that the crime involves in the ordinary case, and to judge whether that abstraction presents some not-well-specified-yet-sufficiently-large degree of risk.” … For years, almost everyone understood §924(c)(3)(B) to require exactly the same categorical approach that this Court found problematic in the residual clauses of the ACCA and §16. Today, the government acknowledges that, if this understanding is correct, then §924(c)(3)(B) must be held unconstitutional too. But the government thinks it has now found a way around the problem. In the aftermath of our decisions holding the residual clauses of the ACCA and §16(b) unconstitutionally vague, the government “abandon[ed] its longstanding position” that §924(c)(3)(B) requires a categorical analysis and began urging lower courts to “adopt a new ‘case specific’ method” that would look to “the ‘defendant’s actual conduct’ in the predicate offense.” Now, the government tries the same strategy in this Court, asking us to abandon the traditional categorical approach and hold that the statute actually commands the government’s new case-specific approach. So, while the consequences in this case may be of constitutional dimension, the real question before us turns out to be one of pure statutory interpretation. … Right out of the gate, the government faces a challenge. This Court, in a unanimous opinion, has already read the nearly identical language of 18 U. S. C. §16(b) to mandate a categorical approach. And, importantly, the Court did so without so much as mentioning the practical and constitutional concerns described above. Instead, the Court got there based entirely on the text. … Consider the word “offense.” It’s true that “in ordinary speech,” this word can carry at least two possible meanings. It can refer to “a generic crime, say, the crime of fraud or theft in general,” or it can refer to “the specific acts in which an offender engaged on a specific occasion. But the word “offense” appears just once in §924(c)(3), in the statute’s prefatory language. And everyone agrees that, in connection with the elements clause, the term “offense” carries the first, “generic” meaning. So reading this statute most naturally, we would expect “offense” to retain that same meaning in connection with the residual clause. After all, “[i]n all but the most unusual situations, a single use of a statutory phrase must have a fixed meaning.” … Things become clearer yet when we consider §924(c)(3)(B)’s role in the broader context of the federal criminal code. As we’ve explained, the language of §924(c)(3)(B) is almost identical to the language of §16(b), which this Court has read to mandate a categorical approach. And we normally presume that the same language in related statutes carries a consistent meaning. … Section 924(c)(3)(B)’s history provides still further evidence that it carries the same categorical-approach command as §16(b). It’s no accident that the language of the two laws is almost exactly the same. The statutory term “crime of violence” traces its origins to the Comprehensive Crime Control Act of 1984. There, Congress enacted the definition of “crime of violence” in §16. §1001(a), 98 Stat. 2136. It also “employed the term ‘crime of violence’ in numerous places in the Act,” Leocal, 543 U. S., at 6, including in §924(c). §1005(a), 98 Stat. 2138. At that time, Congress didn’t provide a separate definition of “crime of violence” in §924(c) but relied on §16’s general definition. The two statutes, thus, were originally designed to be read together. … With all this statutory evidence now arrayed against it, the government answers that it should prevail anyway because of the canon of constitutional avoidance. Maybe the case-specific approach doesn’t represent the best reading of the statute—but, the government insists, it is our duty to adopt any “‘fairly possible’” reading of a statute to save it from being held unconstitutional. We doubt, however, the canon could play a proper role in this case even if the government’s reading were “possible.” True, when presented with two “fair alternatives,” this Court has sometimes adopted the narrower construction of a criminal statute to avoid having to hold it unconstitutional if it were construed more broadly. But no one before us has identified a case in which this Court has invoked the canon to expand the reach of a criminal statute in order to save it. Yet that is exactly what the government seeks here. Its casespecific reading would cause §924(c)(3)(B)’s penalties to apply to conduct they have not previously been understood to reach: categorically nonviolent felonies committed in violent ways. The judgment below is affirmed in part and vacated in part, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Lineup: Gorsuch, joined by Ginsburg, Breyer, Sotomayor, and Kagan. Dissent by Kavanaugh, joined by Thomas and Alito, and Roberts (other than Part II-C). Other Opinions: Dissent (Kavanaugh): [T]oday, after 33 years and tens of thousands of federal prosecutions, the Court suddenly finds a key provision of §924(c) to be unconstitutional because it is supposedly too vague. That is a surprising conclusion for the Court to reach about a federal law that has been applied so often for so long with so little problem. The Court’s decision today will make it harder to prosecute violent gun crimes in the future. The Court’s decision also will likely mean that thousands of inmates who committed violent gun crimes will be released far earlier than Congress specified when enacting §924(c). The inmates who will be released early are not nonviolent offenders. They are not drug offenders. They are offenders who committed violent crimes with firearms, often brutally violent crimes. A decision to strike down a 33-year-old, often-prosecuted federal criminal law because it is all of a sudden unconstitutionally vague is an extraordinary event in this Court. … I fully understand how the Court has arrived at its conclusion given the Court’s recent precedents in Johnson v. United States, 576 U. S. ___ (2015), and Sessions v. Dimaya, 584 U. S. ___ (2018). But this case presents an entirely different question. Those cases involved statutes that imposed additional penalties based on prior convictions. This case involves a statute that focuses on the defendant’s current conduct during the charged crime. The statute here operates entirely in the present. Under our precedents, this statute therefore is not unconstitutionally vague. It is a serious mistake, in my respectful view, to follow Johnson and Dimaya off the constitutional cliff in this case. I respectfully dissent. … [A] defendant can fall within the scope of §924(c) either (1) because of the elements of the underlying crime or (2) because of the defendant’s conduct in committing the underlying crime. Either (1) the judge finds that an element of the underlying crime entails the use of physical force or (2) the jury finds that the defendant’s actual conduct involved a substantial risk that physical force may be used. Put another way, the underlying crime itself may automatically bring the defendant within the scope of §924(c). Or if the underlying crime does not automatically qualify as a crime of violence, then the defendant’s conduct during the crime may still bring the defendant within the scope of §924(c). Sensible enough. The basic question in this case is whether the substantial-risk prong of §924(c)(3)’s definition of “crime of violence” is unconstitutionally vague. It is not. As this Court has explained multiple times, criminal laws that apply a risk standard to a defendant’s conduct are not too vague, but instead are perfectly constitutional. … Indeed, the Government’s brief in Johnson collected more than 200 state and federal statutes that imposed criminal penalties for conduct that created a risk of injury to others. … A statute is unconstitutionally vague only if “it fails to give ordinary people fair notice of the conduct it punishes,” or is “so standardless that it invites arbitrary enforcement.” Section 924(c)(3)(B) is not unconstitutionally vague. To reiterate, §924(c)(3)(B) defines “crime of violence” as “an offense that is a felony and . . . that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Section 924(c)(3)(B) affords people of ordinary intelligence ample notice that they may be punished if they carry or use a gun while engaging in criminal conduct that presents a risk that physical force may be used. There “is a whole range of conduct that anyone with at least a semblance of common sense would know” is covered by §924(c)(3)(B). … This case therefore should be straightforward. But the Court complicates things by engaging in a two-step dance that ends with the Court concluding that §924(c)(3)(B) is unconstitutionally vague. The Court’s first step is to construe §924(c)(3)’s substantial-risk prong to require an ordinary-case categorical approach rather than a conduct-specific approach. In other words, the Court says that a defendant’s guilt or innocence under §924(c)(3)’s substantial-risk prong hinges on a judge’s assessment of how a hypothetical defendant would ordinarily commit the underlying crime. In the Court’s view, a defendant’s guilt or innocence under §924(c)(3)’s substantial-risk prong does not depend on a jury’s finding about how the actual defendant actually committed the underlying crime. The Court’s second step is based on the Court’s decisions in Johnson and Dimaya. The Court says that the ordinary-case categorical approach makes §924(c)(3)(B) unconstitutionally vague. For purposes of this case, the Court’s error is its first step—that is, in construing the substantial-risk prong of §924(c)(3) to require an ordinary-case categorical approach. For three reasons, I disagree with the Court’s analysis. First, the Court’s justifications in Johnson and Dimaya for adopting the categorical approach do not apply in the context of §924(c). Second, the text of §924(c)(3)(B) is best read to focus on the actual defendant’s actual conduct during the underlying crime, not on a hypothetical defendant’s imagined conduct during an ordinary case of the underlying crime. Third, even if the text were ambiguous, the constitutional avoidance canon requires that we interpret the statute to focus on the actual defendant’s actual conduct. … Two important principles drove the Court’s adoption of the categorical approach in the prior-conviction context in Johnson and Dimaya. First, in the prior-conviction cases, the Court emphasized that the categorical approach avoids the difficulties and inequities of relitigating “past convictions in minitrials conducted long after the fact.” … Second, in the prior-conviction cases, the Court insisted on the categorical approach to avoid “Sixth Amendment concerns.” … In short, the Court in Johnson and Dimaya employed something akin to the constitutional avoidance doctrine to read the statutes at issue to avoid practical and Sixth Amendment problems. In the words of JUSTICE THOMAS, the “categorical approach was never really about the best reading of the text.”...But neither of the two reasons identified in Johnson and Dimaya applies to 18 U. S. C. §924(c)(3)(B)—not even a little. First, §924(c) does not require examination of old conduct underlying a prior conviction. Section 924(c) operates entirely in the present. … Second, §924(c) likewise raises no Sixth Amendment concerns. A jury will find the facts or, if the case ends in a guilty plea, the defendant will accept the facts in the plea agreement. … We should recognize that Johnson and Dimaya dealt with an entirely different context: prior convictions. There is no need to follow Johnson and Dimaya off the cliff here. We should read §924(c)(3)(B) like the dozens of other substantial-risk statutes in federal and state criminal law: to focus on the actual defendant’s actual conduct during the actual underlying crime, not on a hypothetical defendant’s imagined conduct during an ordinary case of that crime. … Now to the statutory text of §924(c)(3)(B). Even though the context here is current-offense conduct, not past convictions, the Court says that the statutory language nonetheless compels a focus on a hypothetical defendant’s imagined conduct, not on the actual defendant’s actual conduct. I disagree. Criminal defendants are usually punished based on what they actually did, not based on what a hypothetical defendant might have done. … [This is the part Roberts does not join] But after all of that, suppose that you are not convinced. Suppose that you think that this case is still a close call on the text, even with the background of substantial-risk statutes and the Court’s precedents. Indeed, suppose you ultimately disagree with the above analysis of the text. Even so, the Government still wins—unless it can be said that §924(c)(3)(B) unambiguously requires a categorical approach. Under the constitutional avoidance canon, the precise question before us is not whether §924(c)(3)(B) is best read to require a conduct-specific approach, but rather (as the Court’s cases say) whether §924(c)(3)(B) can reasonably, plausibly, or fairly possibly be interpreted to require a conduct-specific approach. The answer to that question is easy. Yes. The Court says that if §924(c)(3)(B) requires the categorical approach, then it is unconstitutionally vague. But the Court also says that if §924(c)(3)(B) focuses on the defendant’s actual conduct, then it is constitutionally permissible. As the Court puts it, “a case-specific approach would avoid the vagueness problems that doomed the statutes in Johnson and Dimaya.” So the entire ball game is whether it is fairly possible to interpret §924(c)(3)(B) to require a conduct-specific approach. It surely is at least fairly possible. … I respect and entirely understand how the Court got here. Johnson and Dimaya were earth-rattling decisions. But we should not follow Johnson and Dimaya off the constitutional cliff in this different §924(c) context. Unlike the statutes at issue in Johnson and Dimaya, this statute is not a prior-conviction statute. This statute operates entirely in the present and is not remotely vague. I respectfully dissent. https://www.supremecourt.gov/opinions/18pdf/18-431_7758.pdf
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Jun 24, 2019 16:16
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FOOD MARKETING INSTITUTE v. ARGUS LEADER MEDIA, DBA ARGUS LEADER Holding / Majority Opinion (Gorsuch): Congress has instructed that the disclosure requirements of the Freedom of Information Act do “not apply” to “confidential” private-sector “commercial or financial information” in the government’s possession. But when does information provided to a federal agency qualify as “confidential”? The Food Marketing Institute says it’s enough if the owner keeps the information private rather than releasing it publicly. The government suggests that an agency’s promise to keep information from disclosure may also suffice to render it confidential. But the courts below imposed a different requirement yet, holding that information can never be deemed confidential unless disclosing it is likely to result in “substantial competitive harm” to the business that provided it. Finding at least this “competitive harm” requirement inconsistent with the terms of the statute, we reverse. ... Argus Leader asked the USDA for the names and addresses of all retail stores that participate in SNAP and each store’s annual SNAP redemption data from fiscal years 2005 to 2010, which we refer to as “store-level SNAP data.” The USDA tried to meet the paper halfway. It released the names and addresses of the participating stores but declined to disclose the requested store-level SNAP data. As relevant here, the USDA invoked FOIA’s Exemption 4, which shields from disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” Unsatisfied by the agency’s disclosure, Argus sued the USDA in federal court to compel release of the store-level SNAP data. Like several other courts of appeals, the Eighth Circuit has engrafted onto Exemption 4 a so-called “competitive harm” test, under which commercial information cannot be deemed “confidential” unless disclosure is “likely . . . to cause substantial harm to the competitive position of the person from whom the information was obtained.” … As we’ve seen, Exemption 4 shields from mandatory disclosure “commercial or financial information obtained from a person and privileged or confidential.” But FOIA nowhere defines the term “confidential.” So, as usual, we ask what that term’s “ordinary, contemporary, common meaning” was when Congress enacted FOIA in 1966. We’ve done the same with other undefined terms in FOIA. The term “confidential” meant then, as it does now, “private” or “secret.” Contemporary dictionaries suggest two conditions that might be required for information communicated to another to be considered confidential. In one sense, information communicated to another remains confidential whenever it is customarily kept private, or at least closely held, by the person imparting it. In another sense, information might be considered confidential only if the party receiving it provides some assurance that it will remain secret. Must both of these conditions be met for information to be considered confidential under Exemption 4? At least the first condition has to be; it is hard to see how information could be deemed confidential if its owner shares it freely. And there’s no question that the Institute’s members satisfy this condition; uncontested testimony established that the Institute’s retailers customarily do not disclose store-level SNAP data or make it publicly available “in any way.” Even within a company, witnesses testified, only small groups of employees usually have access to it. But what about the second condition: Can privately held information lose its confidential character for purposes of Exemption 4 if it’s communicated to the government without assurances that the government will keep it private? As it turns out, there’s no need to resolve that question in this case because the retailers before us clearly satisfy this condition too. Presumably to induce retailers to participate in SNAP and provide store-level information it finds useful to its adminstration[sic] of the program, the government has long promised them that it will keep their information private. … Notably lacking from dictionary definitions, early case law, or any other usual source that might shed light on the statute’s ordinary meaning is any mention of the “substantial competive harm” requirement that the courts below found unsatisfied and on which Argus Leader pins its hopes. Indeed, when called on some years ago to interpret the similar phrase “information furnished by a confidential source” in FOIA Exemption 7(D), §552(b)(7)(D), this Court looked, as we do now, to “common usage” and never suggested that the government must prove that the disclosure of a source’s information would result in substantial harm. So where did the “substantial competitive harm” requirement come from? In 1974, the D. C. Circuit declared that, in addition to the requirements actually set forth in Exemption 4, a “court must also be satisfied that non-disclosure is justified by the legislative purpose which underlies the exemption.” Then, after a selective tour through the legislative history, the court concluded that “commercial or financial matter is ‘confidential’ [only] if disclosure of the information is likely . . . (1) to impair the Government’s ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained.” Id., at 770. Without much independent analysis, a number of courts of appeals eventually fell in line and adopted variants of the National Parks test. We cannot approve such a casual disregard of the rules of statutory interpretation. In statutory interpretation disputes, a court’s proper starting point lies in a careful examination of the ordinary meaning and structure of the law itself. Where, as here, that examination yields a clear answer, judges must stop. Even those of us who sometimes consult legislative history will never allow it to be used to “muddy” the meaning of “clear statutory language.” … At least where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is “confidential” within the meaning of Exemption 4. Because the storelevel SNAP data at issue here is confidential under that construction, the judgment of the court of appeals is reversed and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Lineup: Gorsuch, joined by Roberts, Thomas, Alito, Kagan, and Kavanaugh. Concurrence-in-Part and Dissent-in-Part by Breyer, joined by Ginsburg and Sotomayor. Other Opinions: Concurrence-in-Part and Dissent-in-Part (Breyer): The Freedom of Information Act (FOIA) requires the government to make information available to the public upon request. It also contains a list of exemptions. Exemption 4 says that the Act does “not apply” to “commercial or financial information obtained from a person and . . . confidential.” The majority holds that “commercial or financial information” is “confidential” and consequently falls within the scope of this exemption “[a]t least” where it is “[1] both customarily and actually treated as private by its owner and [2] provided to the government under an assurance of privacy.” The majority spells out two conditions, but in my view there is a third: Release of such information must also cause genuine harm to the owner’s economic or business interests. Since 1974, when the District of Columbia Circuit decided National Parks and Conservation Assn. v. Morton, nearly every lower court has imposed some kind of harm requirement. … [L]like the majority, I believe that National Parks’ harm requirement goes too far. … Like the majority, I can find nothing in FOIA’s language, purposes, or history that imposes so stringent a requirement. Accordingly, I would clarify that a private harm need not be “substantial” so long as it is genuine. On the other hand, I cannot agree with the majority’s decision to jump to the opposite conclusion, namely, that Exemption 4 imposes no “harm” requirement whatsoever. After all, the word “confidential” sometimes refers, at least in the national security context, to information the disclosure of which would cause harm. And a speaker can more sensibly refer to his Social Security number as “confidential” than his favorite color, in part because release of the former is more likely to cause harm. “Confidential,” in this sense, conveys something about the nature of the information itself, not just (as the majority suggests) how it is kept by those who possess it. … The majority’s reading of Exemption 4 is at odds with these principles. The whole point of FOIA is to give the public access to information it cannot otherwise obtain. So the fact that private actors have “customarily and actually treated” commercial information as secret, cannot be enough to justify nondisclosure. After all, where information is already publicly available, people do not submit FOIA requests—they use Google. Nor would a statute designed to take from the government the power to unilaterally decide what information the public can view, put such determinative weight on the government’s preference for secrecy (what the majority calls the government’s “assurance of privacy”). For the majority, a business holding information as private and submitting it under an assurance of privacy is enough to deprive the public of access. But a tool used to probe the relationship between government and business should not be unavailable whenever government and business wish it so. … I would remand the case for a determination as to whether, in this instance, release of the information at issue will cause that genuine harm. To that extent, I dissent from the majority’s decision. https://www.supremecourt.gov/opinions/18pdf/18-481_5426.pdf IANCU, UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR, PATENT AND TRADEMARK OFFICE v. BRUNETTI Holding / Majority Opinion (Kagan): Two Terms ago, in Matal v. Tam,this Court invalidated the Lanham Act’s bar on the registration of “disparag[ing]” trademarks. Although split between two non-majority opinions, all Members of the Court agreed that the provision violated the First Amendment because it discriminated on the basis of viewpoint. Today we consider a First Amendment challenge to a neighboring provision of the Act, prohibiting the registration of “immoral[] or scandalous” trademarks. We hold that this provision infringes the First Amendment for the same reason: It too disfavors certain ideas. Respondent Erik Brunetti is an artist and entrepreneur who founded a clothing line that uses the trademark FUCT. According to Brunetti, the mark (which functions as the clothing’s brand name) is pronounced as four letters, one after the other: F-U-C-T. But you might read it differently and, if so, you would hardly be alone. That common perception caused difficulties for Brunetti when he tried to register his mark with the U. S. Patent and Trademark Office (PTO). … This case involves another of the Lanham Act’s prohibitions on registration—one applying to marks that “[c]onsist[] of or comprise[] immoral[] or scandalous matter.” The PTO applies that bar as a “unitary provision,” rather than treating the two adjectives in it separately. To determine whether a mark fits in the category, the PTO asks whether a “substantial composite of the general public” would find the mark “shocking to the sense of truth, decency, or propriety”; “giving offense to the conscience or moral feelings”; “calling out for condemnation”; “disgraceful”; “offensive”; “disreputable”; or “vulgar.” Both a PTO examining attorney and the PTO’s Trademark Trial and Appeal Board decided that Brunetti’s mark flunked that test. … This Court first considered a First Amendment challenge to a trademark registration restriction in Tam, just two Terms ago. There, the Court declared unconstitutional the Lanham Act’s ban on registering marks that “disparage” any “person[], living or dead.” §1052(a). The eightJustice Court divided evenly between two opinions and could not agree on the overall framework for deciding the case. (In particular, no majority emerged to resolve whether a Lanham Act bar is a condition on a government benefit or a simple restriction on speech.) But all the Justices agreed on two propositions. First, if a trademark registration bar is viewpoint-based, it is unconstitutional. And second, the disparagement bar was viewpoint-based. … If the “immoral or scandalous” bar similarly discriminates on the basis of viewpoint, it must also collide with our First Amendment doctrine. The Government does not argue otherwise. In briefs and oral argument, the Government offers a theory for upholding the bar if it is viewpoint-neutral (essentially, that the bar would then be a reasonable condition on a government benefit). But the Government agrees that under Tam it may not “deny registration based on the views expressed” by a mark. “As the Court’s Tam decision establishes,” the Government says, “the criteria for federal trademark registration” must be “viewpoint-neutral to survive Free Speech Clause review.” So the key question becomes: Is the “immoral or scandalous” criterion in the Lanham Act viewpoint-neutral or viewpoint-based? It is viewpoint-based…[T]the Lanham Act permits registration of marks that champion society’s sense of rectitude and morality, but not marks that denigrate those concepts….[T]the Lanham Act allows registration of marks when their messages accord with, but not when their messages defy, society’s sense of decency or propriety. Put the pair of overlapping terms together and the statute, on its face, distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation. The statute favors the former, and disfavors the latter. … The facial viewpoint bias in the law results in viewpoint-discriminatory application. … There are a great many immoral and scandalous ideas in the world (even more than there are swearwords), and the Lanham Act covers them all. It therefore violates the First Amendment. We accordingly affirm the judgment of the Court of Appeals. It is so ordered. KAGAN, J., delivered the opinion of the Court, in which THOMAS, GINSBURG, ALITO, GORSUCH and KAVANAUGH, JJ., joined. ALITO, J., filed a concurring opinion. ROBERTS, C. J., and BREYER, J., filed opinions concurring in part and dissenting in part. SOTOMAYOR, J., filed an opinion concurring in part and dissenting in part, in which BREYER, J., joined. Lineup: Kagan, joined by Thomas, Ginsburg, Alito, Gorsuch, and Kavanaugh. Concurrence by Alito. Concurrence-in-Part and Dissent-in-Part by Roberts. Concurrence-in-Part and Dissent-in-Part by Breyer. Concurrence-in-Part and Dissent-in-Part by Sotomayor, joined by Breyer. Other Opinions: Concurrence (Alito): For the reasons explained in the opinion of the Court, the provision of the Lanham Act at issue in this case violates the Free Speech Clause of the First Amendment because it discriminates on the basis of viewpoint and cannot be fixed without rewriting the statute. Viewpoint discrimination is poison to a free society. But in many countries with constitutions or legal traditions that claim to protect freedom of speech, serious viewpoint discrimination is now tolerated, and such discrimination has become increasingly prevalent in this country. At a time when free speech is under attack, it is especially important for this Court to remain firm on the principle that the First Amendment does not tolerate viewpoint discrimination. We reaffirm that principle today. Our decision is not based on moral relativism but on the recognition that a law banning speech deemed by government officials to be “immoral” or “scandalous” can easily be exploited for illegitimate ends. Our decision does not prevent Congress from adopting a more carefully focused statute that precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas. Concurrence-in-Part and Dissent-in-Part (Roberts): The Government concedes that the provision so read is broad enough to reach not only marks that offend because of their mode of expression (such as vulgarity and profanity) but also marks that offend because of the ideas they convey. The Government urges, however, that the provision can be given a narrowing construction—it can be understood to cover only marks that offend because of their mode of expression. The Court rejects that proposal on the ground that it would in effect rewrite the statute. I agree with the majority that the “immoral” portion of the provision is not susceptible of a narrowing construction that would eliminate its viewpoint bias. As JUSTICE SOTOMAYOR explains, however, the “scandalous” portion of the provision is susceptible of such a narrowing construction….I agree with JUSTICE SOTOMAYOR that such a narrowing construction is appropriate in this context. I also agree that, regardless of how exactly the trademark registration system is best conceived under our precedents—a question we left open in Tam—refusing registration to obscene, vulgar, or profane marks does not offend the First Amendment. Whether such marks can be registered does not affect the extent to which their owners may use them in commerce to identify goods. No speech is being restricted; no one is being punished. The owners of such marks are merely denied certain additional benefits associated with federal trademark registration. The Government, meanwhile, has an interest in not associating itself with trademarks whose content is obscene, vulgar, or profane. The First Amendment protects the freedom of speech; it does not require the Government to give aid and comfort to those using obscene, vulgar, and profane modes of expression. For those reasons, I concur in part and dissent in part. Concurrence-in-Part and Dissent-in-Part (Breyer): Following these precedents, I agree with JUSTICE SOTOMAYOR that, for the reasons she gives, we should interpret the word “scandalous” in the present statute to refer only to certain highly “vulgar” or “obscene” modes of expression. … In my view, a category-based approach to the First Amendment cannot adequately resolve the problem before us. I would place less emphasis on trying to decide whether the statute at issue should be categorized as an example of “viewpoint discrimination,” “content discrimination,” “commercial speech,” “government speech,” or the like. Rather, as I have written before, I believe we would do better to treat this Court’s speech-related categories not as outcome-determinative rules, but instead as rules of thumb. … [T]he trademark statute does not clearly fit within any of the existing outcome-determinative categories [of normal First Amendment analysis]. Why, then, should we rigidly adhere to these categories? Rather than puzzling over categorization, I believe we should focus on the interests the First Amendment protects and ask a more basic proportionality question: Does “the regulation at issue wor[k] harm to First Amendment interests that is disproportionate in light of the relevant regulatory objectives”? Based on this proportionality analysis, I would conclude that the statute at issue here, as interpreted by JUSTICE SOTOMAYOR, does not violate the First Amendment. How much harm to First Amendment interests does a bar on registering highly vulgar or obscene trademarks work? Not much. The statute leaves businesses free to use highly vulgar or obscene words on their products, and even to use such words directly next to other registered marks. … Now consider, by way of contrast, the Government’s interests in barring the registration of highly vulgar or obscene trademarks. For one thing, when the Government registers a mark, it is necessarily “involv[ed] in promoting” that mark. The Government has at least a reasonable interest in ensuring that it is not involved in promoting highly vulgar or obscene speech, and that it will not be associated with such speech. ... I would conclude that the prohibition on registering “scandalous” marks does not “wor[k] harm to First Amendment interests that is disproportionate in light of the relevant regulatory objectives.” I would therefore uphold this part of the statute. I agree with the Court, however, that the bar on registering “immoral” marks violates the First Amendment. Because JUSTICE SOTOMAYOR reaches the same conclusions, using roughly similar reasoning, I join her opinion insofar as it is consistent with the views set forth here. Concurrence-in-Part and Dissent-in-Part (Sotomayor): The Court’s decision today will beget unfortunate results. With the Lanham Act’s scandalous-marks provision, 15 U. S. C. §1052(a), struck down as unconstitutional viewpoint discrimination, the Government will have no statutory basis to refuse (and thus no choice but to begin) registering marks containing the most vulgar, profane, or obscene words and images imaginable. The coming rush to register such trademarks—and the Government’s immediate powerlessness to say no—is eminently avoidable. Rather than read the relevant text as the majority does, it is equally possible to read that provision’s bar on the registration of “scandalous” marks to address only obscenity, vulgarity, and profanity. Such a narrowing construction would save that duly enacted legislative text by rendering it a reasonable, viewpointneutral restriction on speech that is permissible in the context of a beneficial governmental initiative like the trademark-registration system. I would apply that narrowing construction to the term “scandalous” and accordingly reject petitioner Erik Brunetti’s facial challenge. ... [W]hile the majority offers a reasonable reading of “scandalous,” it also unnecessarily and ill-advisedly collapses the words “scandalous” and “immoral.” Instead, it should treat them as each holding a distinct, non-redundant meaning, with “immoral” covering marks that are offensive because they transgress social norms, and “scandalous” covering marks that are offensive because of the mode in which they are expressed. What would it mean for “scandalous” in §1052(a) to cover only offensive modes of expression? The most obvious ways—indeed, perhaps the only conceivable ways—in which a trademark can be expressed in a shocking or offensive manner are when the speaker employs obscenity, vulgarity, or profanity. Obscenity has long been defined by this Court’s decision in Miller v. California. As for what constitutes “scandalous” vulgarity or profanity, I do not offer a list, but I do interpret the term to allow the PTO to restrict (and potentially promulgate guidance to clarify) the small group of lewd words or “swear” words that cause a visceral reaction, that are not commonly used around children, and that are prohibited in comparable settings. … A limiting construction like the one just discussed is both appropriate in this context and consistent with past precedent. … Adopting a narrow construction for the word “scandalous”—interpreting it to regulate only obscenity, vulgarity, and profanity—would save it from unconstitutionality. Properly narrowed, “scandalous” is a viewpoint-neutral form of content discrimination that is permissible in the kind of discretionary governmental program or limited forum typified by the trademark-registration system. … Prohibiting the registration of obscene, profane, or vulgar marks qualifies as reasonable, viewpoint-neutral, content-based regulation. Apart from any interest in regulating commerce itself, the Government has an interest in not promoting certain kinds of speech, whether because such speech could be perceived as suggesting governmental favoritism or simply because the Government does not wish to involve itself with that kind of speech. … Freedom of speech is a cornerstone of our society, and the First Amendment protects Brunetti’s right to use words like the one at issue here. The Government need not, however, be forced to confer on Brunetti’s trademark (and some more extreme) the ancillary benefit of trademark registration, when “scandalous” in §1052(a) can reasonably be read to bar the registration of only those marks that are obscene, vulgar, or profane. Though I concur as to the unconstitutionality of the term “immoral” in §1052(a), I respectfully dissent as to the term “scandalous” in the same statute and would instead uphold it under the narrow construction discussed here. https://www.supremecourt.gov/opinions/18pdf/18-302_e29g.pdf DUTRA GROUP v. BATTERTON Holding / Majority Opinion (Alito): By granting federal courts jurisdiction over maritime and admiralty cases, the Constitution implicitly directs federal courts sitting in admiralty to proceed “in the manner of a common law court.” Thus, where Congress has not prescribed specific rules, federal courts must develop the “amalgam of traditional common-law rules, modifications of those rules, and newly created rules” that forms the general maritime law. But maritime law is no longer solely the province of the Federal Judiciary. “Congress and the States have legislated extensively in these areas.” When exercising its inherent common-law authority, “an admiralty court should look primarily to these legislative enactments for policy guidance.” We may depart from the policies found in the statutory scheme in discrete instances based on long-established history, see, e.g., Atlantic Sounding Co. v. Townsend, but we do so cautiously in light of Congress’s persistent pursuit of “uniformity in the exercise of admiralty jurisdiction.” This case asks whether a mariner may recover punitive damages on a claim that he was injured as a result of the unseaworthy condition of the vessel. We have twice confronted similar questions in the past several decades, and our holdings in both cases were based on the particular claims involved. In Miles, which concerned a wrongful-death claim under the general maritime law, we held that recovery was limited to pecuniary damages, which did not include loss of society. And in Atlantic Sounding, after examining centuries of relevant case law, we held that punitive damages are not categorically barred as part of the award on the traditional maritime claim of maintenance and cure. Here, because there is no historical basis for allowing punitive damages in unseaworthiness actions, and in order to promote uniformity with the way courts have applied parallel statutory causes of action, we hold that punitive damages remain unavailable in unseaworthiness actions. … Courts used this power [to dispose of a case as justice may require] to protect seamen from injury primarily through two causes of action. The first, maintenance and cure, has its roots in the medieval and renaissance law codes that form the ancient foundation of maritime common law. The duty of maintenance and cure requires a ship’s master “to provide food, lodging, and medical services to a seaman injured while serving the ship.” … The second claim, unseaworthiness, is a much more recent development and grew out of causes of action unrelated to personal injury. In its earliest forms, an unseaworthiness claim gave sailors under contract to sail on a ship the right to collect their wages even if they had refused to board an unsafe vessel after discovering its condition. Similarly, unseaworthiness was a defense to criminal charges against seamen who refused to obey a ship master’s orders.A claim of unseaworthiness could also be asserted by a shipper to recover damages or by an insurer to deny coverage when the poor condition of the ship resulted in damage to or loss of the cargo. … Unseaworthiness remained a suspect basis for personal injury claims until 1903, when, in dicta, this Court concluded that “the vessel and her owner are . . . liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship.” Although this was the first recognition of unseaworthiness as a personal injury claim in this Court, we took pains to note that the claim was strictly cabined. Ibid. Some of the limitations on recovery were imported from the common law. … In the early 20th century, then, under “the general maritime law . . . a vessel and her owner . . . were liable to an indemnity for injuries received by a seaman in consequence of the unseaworthiness of the ship and her appliances; but a seaman was not allowed to recover an indemnity for injuries sustained through the negligence of the master or any member of the crew.” … In a pair of decisions in the late 1940s, the Court transformed the old claim of unseaworthiness, which had demanded only due diligence by the vessel owner, into a strict-liability claim. In Mahnich v. Southern S. S. Co., the Court stated that “the exercise of due diligence does not relieve the owner of his obligation” to provide a seaworthy ship and, in the same ruling, held that the fellow-servant doctrine did not provide a defense. Mahnich’s interpretation of the early cases may have been suspect, see Tetreault 397–398 (Mahnich rests on “startling misstatement” of relevant precedents), but its assertion triggered a sea-change in maritime personal injury. Less than two years later, we affirmed that the duty of seaworthiness was “essentially a species of liability without fault . . . neither limited by conceptions of negligence nor contractual in character. It is a form of absolute duty owing to all within the range of its humanitarian policy.” … Batterton sued Dutra and asserted a variety of claims, including negligence, unseaworthiness, maintenance and cure, and unearned wages. He sought to recover general and punitive damages. Dutra moved to strike Batterton’s claim for punitive damages, arguing that they are not available on claims for unseaworthiness. … For claims of unseaworthiness, the overwhelming historical evidence suggests that punitive damages are not available. Batterton principally relies on two cases to establish that punitive damages were traditionally available for breach of the duty of seaworthiness. Upon close inspection, neither supports this argument. … The lack of punitive damages in traditional maritime law cases is practically dispositive. By the time the claim of unseaworthiness evolved to remedy personal injury, punitive damages were a well-established part of the common law. American courts had awarded punitive (or exemplary) damages from the Republic’s earliest days. And yet, beyond the decisions discussed above, Batterton presents no decisions from the formative years of the personal injury unseaworthiness claim in which exemplary damages were awarded. From this we conclude that, unlike maintenance and cure, unseaworthiness did not traditionally allow recovery of punitive damages. … In light of this overwhelming historical evidence, we cannot sanction a novel remedy here unless it is required to maintain uniformity with Congress’s clearly expressed policies. Therefore, we must consider the remedies typically recognized for Jones Act claims. The Jones Act adopts the remedial provisions of FELA, and by the time of the Jones Act’s passage, this Court and others had repeatedly interpreted the scope of damages available to FELA plaintiffs. These early decisions held that “[t]he damages recoverable [under FELA] are limited . . . strictly to the financial loss . . . sustained.” … To the extent Batterton argues that punitive damages are justified on policy grounds or as a regulatory measure, we are unpersuaded. In contemporary maritime law, our overriding objective is to pursue the policy expressed in congressional enactments, and because unseaworthiness in its current strict-liability form is our own invention and came after passage of the Jones Act, it would exceed our current role to introduce novel remedies contradictory to those Congress has provided in similar areas. … We are also wary to depart from the practice under the Jones Act because a claim of unseaworthiness—more than a claim for maintenance and cure—serves as a duplicate and substitute for a Jones Act claim. We hold that a plaintiff may not recover punitive damages on a claim of unseaworthiness. We reverse the judgment of the United States Court of Appeals for the Ninth Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered. Lineup: Alito, joined by Roberts, Thomas, Kagan, Gorsuch, and Kavanaugh. Dissent by Ginsburg, joined by Breyer and Sotomayor. Other Opinions: Dissent (Ginsburg): In Exxon Shipping Co. v. Baker, the Court recognized that punitive damages normally are available in maritime cases. Relying on Miles v. Apex Marine Corp., the Court today holds that unseaworthiness claims are an exception to that general rule. Respondent Christopher Batterton, defending the Ninth Circuit’s decision in his favor, relies on the Court’s more recent decision in Atlantic Sounding Co. v. Townsend, In my view, the Ninth Circuit correctly determined that Atlantic Sounding is the controlling precedent. I would therefore affirm the judgment of the Court of Appeals, cogently explained in Senior Circuit Judge Kleinfeld’s opinion. … Some 19 years after Miles, in Atlantic Sounding, this Court held that punitive damages are available in actions for maintenance and cure under general maritime law. Atlantic Sounding’s reasoning had four components. First, the Court observed, punitive damages had a long common-law pedigree. Second, the “general rule that punitive damages were available at common law extended to claims arising under federal maritime law.” Third, “[n]othing in maritime law undermine[d] the applicability of this general rule in the maintenance and cure context,” notwithstanding slim evidence that punitive damages were historically awarded in maintenance and cure actions.Finally, neither the Jones Act nor any other statute indicated that Congress sought to displace the presumption that remedies generally available under the common law are available for maritime claims. While the Jones Act armed seamen with a statutory action for negligence attributable to a vessel operator, that remedy, Atlantic Sounding noted, did not curtail pre-existing maritime causes of action and remedies. The Atlantic Sounding Court rejected as “far too broad” the argument that the remedies available under general maritime law were confined to those available under the Jones Act or DOHSA. The Atlantic Sounding inquiries control this case. As in Atlantic Sounding, “both the general maritime cause of action”—here, unseaworthiness—“and the remedy (punitive damages) were well established before the passage of the Jones Act.” And, unlike the maritime wrongful-death action at issue in Miles, Batterton’s claim of unseaworthiness resulting in personal injury was not created to fill gaps in a statutory scheme. The damages available for Batterton’s unseaworthiness claim, Atlantic Sounding therefore signals, need not track those available under the Jones Act. Applying Atlantic Sounding’s test, punitive damages are not categorically barred in unseaworthiness actions. ... Permitting punitive damages for unseaworthiness, the Court further urges, would create “bizarre disparities.” I see no “bizarre disparit[y]” in allowing an injured sailor to seek remedies unavailable to survivors of deceased seamen. Nor is it “bizarre” to permit recovery of punitive damages against a shipowner “for injuries due to unseaworthiness of the vessel.” Exposure to such damages helps to deter wrongdoing, particularly when malfeasance is “hard to detect.” If there is any “bizarre disparit[y],” it is the one the Court today creates: Punitive damages are available for willful and wanton breach of the duty to provide maintenance and cure, but not for similarly culpable breaches of the duty to provide a seaworthy vessel. * * * For the reasons stated, I would affirm the Court of Appeals’ judgment. https://www.supremecourt.gov/opinions/18pdf/18-266_m6io.pdf [internal citations inconsistently omitted throughout]
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Jun 24, 2019 16:16
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Some weird lineups, there.
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Jun 24, 2019 16:32
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Of the twelve outstanding cases, they released four opinions today, and plan to release more on Wednesday. To my knowledge they haven't said (as they usually would have) that Wednesday will be the last day, so we can expect at least one more release day after that. Probably four Wednesday and four Friday, then, unless the court plans to come in the week of the Fourth to release some stinker opinions, which would at least be nicely ironic. 
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Jun 24, 2019 16:33
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dwarf74 posted:Some weird lineups, there. Definitely wasn't expecting Sotomayor pearl-clutching over swears.
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Jun 24, 2019 16:37
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dwarf74 posted:Some weird lineups, there. I know, right? Never thought I'd see quote:Lineup: Kagan, joined by Thomas, Ginsburg, Alito, Gorsuch, and Kavanaugh.
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Jun 24, 2019 16:37
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loving hell I cannot stand Gorsuch's writing style. Also once again Alito has to bang out a paragraph of his own to  about attacks on hate speech.
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Jun 24, 2019 16:42
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Quorum posted:Of the twelve outstanding cases, they released four opinions today, and plan to release more on Wednesday. To my knowledge they haven't said (as they usually would have) that Wednesday will be the last day, so we can expect at least one more release day after that. Probably four Wednesday and four Friday, then, unless the court plans to come in the week of the Fourth to release some stinker opinions, which would at least be nicely ironic. Last year they issued Monday, Tuesday, Wednesday, and Thursday of the last week in June. With 8 cases to go and Tuesday out, I expect Wednesday and Thursday.
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Jun 24, 2019 17:32
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lol America, has to make a federal case out of whether a clothing line can rhyme with "ducked" because we're a nation of insane pearl-clutching puritans
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Jun 24, 2019 17:43
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VitalSigns posted:lol America, has to make a federal case out of whether a clothing line can rhyme with "ducked" because we're a nation of insane pearl-clutching puritans Three separate concurrence-and-dissents to say "we have to respect the 1A, but swear words are naughty!" and another concurrence that seems to both not-so-subtly hint that Alito is totally on board with normalizing hate speech, while also open to banning trademarks for "vulgar terms that play no real part in the expression of ideas", which I assume to mean things he doesn't personally like.
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Jun 24, 2019 17:51
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VitalSigns posted:lol America, has to make a federal case out of whether a clothing line can rhyme with "ducked" because we're a nation of insane pearl-clutching puritans Well, no. It's whether the federal government must register the trademark and allow the clothing line to use the ®. There is no argument that the clothing line can't use the brand "FUCT."
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Jun 24, 2019 17:52
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ulmont posted:Well, no. It's whether the federal government must register the trademark and allow the clothing line to use the ®. There is no argument that the clothing line can't use the brand "FUCT." And really this case only got brought because of Tam’s success in the Slants case a couple years ago. In that case, PTO refused to register “the Slants” as a TM, claiming it was offensive to Asians; Tam brought a successful 1A claim. After that half of the registration bar died on 1st Amendment grounds, the days of the immoral bar were pretty clearly numbered.
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Jun 24, 2019 17:56
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ulmont posted:Well, no. It's whether the federal government must register the trademark and allow the clothing line to use the ®. There is no argument that the clothing line can't use the brand "FUCT." Has anyone successfully operated a non-trademarked clothing line? Anyone in the world could come and eat your lunch.
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Jun 24, 2019 17:59
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Either way, get ready to root for/against this same DC football team in perpetuity 
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Jun 24, 2019 18:00
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Devor posted:Has anyone successfully operated a non-trademarked clothing line? Anyone in the world could come and eat your lunch. No, they can't, because you can sue for infringement of an unregistered trademark.
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Jun 24, 2019 18:09
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ulmont posted:Well, no. It's whether the federal government must register the trademark and allow the clothing line to use the ®. There is no argument that the clothing line can't use the brand "FUCT." Or FCUK.
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Jun 24, 2019 18:15
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ulmont posted:No, they can't, because you can sue for infringement of an unregistered trademark. https://en.wikipedia.org/wiki/Unregistered_trademark quote:In contrast to federal registration, common law trademarks are usually enforceable only within the geographic region or locale where the trademark owner is using it in business. When an infringement occurs, an unregistered trademark owner may not be able to sue and collect damages or recover attorneys fees. In those jurisdictions with limited protection to unregistered trademark owners, a common law trademark owner's remedies may be limited to injunctive relief (a court order for the defendant to cease and desist the infringement). Not having access to the same remedies and recovery options, and having limited geographic scope for your unregistered trademark. Seems like a reasonable first-amendment case.
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Jun 24, 2019 18:18
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ulmont posted:Well, no. It's whether the federal government must register the trademark and allow the clothing line to use the ®. There is no argument that the clothing line can't use the brand "FUCT." I know what the case is about and it's so absurd
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Jun 24, 2019 18:19
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Silver2195 posted:Definitely wasn't expecting Sotomayor pearl-clutching over swears. To be fair if I read this right this opens the door to things like “N——r Hunting Company” or “Jewish Gas Supply” as trademarks, so I understand the concern here if so. Still, seems like a lot of them were pushing a “restrict this rule a lot more closely and it’ll fly” line so I presume Congress will probably do that eventually.
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Jun 24, 2019 18:47
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MadDogMike posted:To be fair if I read this right this opens the door to things like “N——r Hunting Company” or “Jewish Gas Supply” as trademarks The door to that was already opened by the Slants case.
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Jun 24, 2019 18:51
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MadDogMike posted:To be fair if I read this right this opens the door to things like “N——r Hunting Company” or “Jewish Gas Supply” as trademarks, so I understand the concern here if so. Still, seems like a lot of them were pushing a “restrict this rule a lot more closely and it’ll fly” line so I presume Congress will probably do that eventually. Jewish Gas Supply is totally legit if an ultra-orthodox jewish person doesn't want to buy propane from a goy dwarf74 posted:Some weird lineups, there. Gorsuch + Liberals is always my favorite, but all the partial concurrences/dissents were fun
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Jun 24, 2019 18:57
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Nissin Cup Nudist posted:Gorsuch + Liberals is always my favorite, but all the partial concurrences/dissents were fun Not a surprise that his dismantling of the administrative state will involve knocking down some laws that conservatives like along the way It'll be less funny when he strikes Chevron deference and the new cadre of unqualified right-wing howler monkey federal judges start ruling against agency interpretation of the Clean Water Act
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Jun 24, 2019 19:13
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Chevron deference is kinda dumb in its current iteration anyways though?
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Jun 24, 2019 19:17
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hobbesmaster posted:Chevron deference is kinda dumb in its current iteration anyways though? Yeah but it’s less dumb than not giving deference to agency interpretations of the statutes they administer.
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Jun 24, 2019 19:19
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Ogmius815 posted:Yeah but it’s less dumb than not giving deference to agency interpretations of the statutes they administer. Skidmore v. Swift & Co., 323 US 134, 140 (1944) posted:We consider that the rulings, interpretations and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.
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Jun 24, 2019 20:34
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I am actually interested in the baseline legal analysis given the broad-ranging constitutional authority the government has in IP law.
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Jun 24, 2019 20:58
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Silver2195 posted:The door to that was already opened by the Slants case. Yeah, this is more about trademarking Goatse as the logo mark for your pipe supply company. Discendo Vox posted:I am actually interested in the baseline legal analysis given the broad-ranging constitutional authority the government has in IP law. Their constitutional authority is significantly more limited in the trademark context because it’s interpreted as implicit in the Commerce Clause rather than explicitly via the IP clause.
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Jun 24, 2019 20:58
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I'd completely forgotten that, thank you!
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Jun 24, 2019 21:06
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That really just reads to me as “we’ll interpret the statute de novo but maybe we’ll consider the agency interpretation if we feel like it.” On the other hand, I don’t really know how things worked in practice before Chevron. So shrug.
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Jun 24, 2019 21:11
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Aww yeah, ADMIRALTY COURT  ulmont posted:UNITED STATES v. DAVIS ET AL. This is such a Gorsuch opinion. quote:Dissent (Kavanaugh):  How did Thomas sign on to this?
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Jun 24, 2019 21:13
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Ogmius815 posted:Yeah but it’s less dumb than not giving deference to agency interpretations of the statutes they administer. This was one of the things Sam Bagenstos talked about when I heard him speak recently. His overall take seemed to be that it was probably less to be feared than one might think, because [ to crassly oversimplify his argument] a judge who wants to rule one way or the other is going to find a reason to do so regardless of the deference standard.
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Jun 24, 2019 21:14
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FronzelNeekburm posted:Aww yeah, ADMIRALTY COURT
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Jun 24, 2019 21:16
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Ogmius815 posted:That really just reads to me as “we’ll interpret the statute de novo but maybe we’ll consider the agency interpretation if we feel like it.” On the other hand, I don’t really know how things worked in practice before Chevron. So shrug. More like "we'll listen to the agency, but if they're clearly wrong we don't have to listen to it." This is 100% compatible with Chevron's two step analysis. Hieronymous Alloy posted:This was one of the things Sam Bagenstos talked about when I heard him speak recently. His overall take seemed to be that it was probably less to be feared than one might think, because [ to crassly oversimplify his argument] a judge who wants to rule one way or the other is going to find a reason to do so regardless of the deference standard. Yes. While I haven't done the exercise, I strongly suspect that the number of agency interpretations found "unreasonable" and the number of statutes whose meaning is "clear" both went up after Chevron.
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Jun 24, 2019 21:39
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haveblue posted:Either way, get ready to root for/against this same DC football team in perpetuity I can't believe anyone ever thought a rich guy would lose his trademark that's racist against native Americans, the group the US government enjoys stepping on more than any other.
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Jun 24, 2019 22:29
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Tomorrow is the last day of the current term, so we're definitely going to get the gerrymandering and census citizenship question cases tomorrow.
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Jun 26, 2019 15:51
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I wonder if they'll punt on the citizenship question case. I suspect that the revelation of the proof of racist intent upset some planned opinions there.
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Jun 26, 2019 16:00
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Hieronymous Alloy posted:I wonder if they'll punt on the citizenship question case. I suspect that the revelation of the proof of racist intent upset some planned opinions there. https://twitter.com/JoshMBlackman/status/1143698702831443968 Piell fucked around with this message at 16:06 on Jun 26, 2019 |
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Jun 26, 2019 16:02
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