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Petition of the day

By on Jun 22, 2018 at 8:00 pm

The petition of the day is:


Issue: Whether a finding of willful infringement based on In re Seagate’s “should have been known” negligence standard violates the requirement that subjective willfulness must be “intentional or knowing,” as set forth by the Supreme Court in Halo Electronics Inc. v. Pulse Electronics Inc.

Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. He filed amicus briefs supporting the petitioner in Lucia v. SEC and the respondents in South Dakota v. Wayfair.

June 21 was “government structure day” at the Supreme Court. In four separate cases, interpreting four different administrative-law or separation-of-powers doctrines, the justices produced opinions that will keep law professors updating syllabi for their constitutional and administrative law classes all summer. I initially focused on Lucia, given both my previous writings about the case and my general interest in the appointment and removal powers, but then I discovered the common theme to the quartet: Structure matters.

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[NOTE: This post, originally published at 11:26 a.m., was updated with additional analysis at 2:11 p.m.]

Over 40 years ago, the Supreme Court outlined what has come to be known as the “third-party doctrine” – the idea that the Fourth Amendment does not protect records or information that someone voluntarily shares with someone or something else. Today the Supreme Court ruled that, despite this doctrine, police will generally need to get a warrant to obtain cell-site location information, a record of the cell towers (or other sites) with which a cellphone connected. In an opinion by Chief Justice John Roberts, the five-justice majority pointed to “seismic shifts in digital technology,” which have allowed wireless carriers to collect “deeply revealing” information about cellphone owners that should be protected by the Constitution. Roberts characterized the ruling as a narrow one; indeed, the majority at least left open the prospect that police might not need a warrant to get information about where someone was on the day that a crime was committed. But the decision still drew sharp criticism from the dissenting justices, who complained that it is likely to imperil, in the words of Justice Samuel Alito, “many legitimate and valuable investigative practices on which law enforcement has rightfully come to rely.”

Chief Justice Roberts announces opinion in Carpenter v. United States (Art Lein)

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This morning the court issued a 5-4 opinion in Carpenter v. United States, ruling that the government generally can’t access historical cell-site location records without a warrant. Amy Howe cover the ruling for this blog; her coverage first appeared at Howe on the Court. Other early coverage comes from Pete Williams of NBC News; Roberts Barnes of The Washington Post; Josh Gerstein of Politico; Lydia Wheeler of The Hill; Mark Sherman of the Associated Press; Lawrence Hurley of Reuters; Adam Liptak of The New York Times; Christian Farias of New York Magazine; Chris Geidner of Buzzfeed; Richard Wolf of USA Today; and Kevin Daley of The Daily Caller. An infographic about the decision comes from Mariam Morshedi of Subscript Law.

Early commentary comes from Scott Lemieux of Lawyers, Guns & Money; Orin Kerr of The Volokh Conspiracy; Kent Scheidegger of Crime and Consequences; Louise Matsakis of Wired; Barry Friedman for The New York Times; Aziz Huq for Vox; and Sabrina McCubbin for Lawfare.

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This morning’s opinion in WesternGeco v. Ion Geophysical Corp., holding that the Patent Act authorizes a damage award for patent-infringing exports, is far from what you would have expected from the argument. In April when the justices heard from counsel for the parties, the bench engaged in a heated and far-ranging debate that touched on extraterritorial application of the Patent Act as well as basic tort-theory concepts of proximate cause in the like. This morning, though, the justices disposed of the matter with a short and highly formalistic opinion from Justice Clarence Thomas, which barely alludes to those topics. With seven votes for Thomas’ opinion, the concerns of the oral argument and the briefing were relegated almost entirely to a dissent from Justice Neil Gorsuch, joined only by Justice Stephen Breyer.

The case involves Section 271 of the Patent Act, which defines the types of conduct that amount to infringement of a patent. In general, the section applies only to conduct that occurs in the United States. There is an exception, though, in Section 271(f), a provision adopted in response to (and overruling) a notorious Supreme Court case that exonerated a defendant who had manufactured the components of an invention in the United States but had shipped them abroad for assembly into an infringing device. Specifically, Section 271(f) includes within its definition of “infringement” the act of supplying the components of a patented device from the United States. In this case, for example, ION Geophysical manufactured in the United States components that it shipped to companies abroad; when assembled by ION’s customers, those components produced a system for surveying the seafloor that duplicated patented technology held by WesternGeco (perhaps better known by its earlier name Western Geophysical).

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In a 5-4 decision authored by Justice Neil Gorsuch, the Supreme Court upheld the Virginia state courts’ conclusion that a defendant’s agreement to statutory severance of a felon-in-possession count from substantive burglary counts waived his right to invoke the issue-preclusion protection of the double jeopardy clause after he was acquitted of the substantive offenses. In a separate concurrence, Justice Anthony Kennedy refused to join the portion of the opinion that attempted to place the final nail in the coffin of Ashe v. Swenson’s constitutional issue-preclusion protection for acquittals. Justice Ruth Bader Ginsburg, joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, dissented.

Briefly, Michael Currier was charged with three crimes growing out of a residential break-in during which a safe containing firearms was taken: breaking and entering, larceny and possession of a firearm following a felony conviction. The felon-in-possession charge was based on the allegation that Currier had possessed the guns in the safe during the break-in. A Virginia court rule permits a felon-in-possession charge to be severed unless either party objects, and both sides agreed to the severance. Currier was tried first on the substantive charges and was acquitted. He then argued that the jury’s acquittal resolved the question of whether he had participated in the burglary and theft, so that the state was barred from introducing any evidence of his alleged involvement in those crimes. Because the possession-of-the-weapon charge required proof of that participation, he contended, issue preclusion precluded the second trial. Virginia argued that Currier’s consent to the severance waived his issue-preclusion claim. The court agreed, Currier was tried and convicted, and the conviction was upheld on appeal. The Virginia Supreme Court affirmed.

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Today the Supreme Court ruled that the simultaneous service of military officers on both the criminal courts of appeals (CCAs) for the armed forces and the United States Court of Military Commission Review (CMCR) does not violate a longstanding rule that bars active-duty military officers from holding a second job that requires presidential nomination and Senate confirmation – sometimes known as the “dual-officeholding ban.” The decision means that the conviction of Keanu Ortiz, who served as an Airman First Class in the U.S. Air Force, will stand.

The dispute now before the court arose after Ortiz was convicted by a military court-martial of knowingly possessing and distributing child pornography, sentenced to two years in prison and dishonorably discharged. He appealed to the Air Force CCA, where his conviction was upheld by a panel that included Colonel Martin Mitchell, who approximately a month earlier had been confirmed to serve as a judge on the CMCR.

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Jennifer Mascott is an assistant professor of law and the faculty director of the Supreme Court and Administrative Law Clinics at the Antonin Scalia Law School. She filed an amicus brief in support of Raymond Lucia in Lucia v. Securities and Exchange Commission.

Yesterday the Supreme Court ruled in Lucia v. SEC, evaluating whether the Securities and Exchange Commission had used improper methods to hire its administrative law judges. A fairly lopsided 7-2 margin of justices concluded that it had. Standing alone, Justice Stephen Breyer found that the SEC had committed a statutory violation by improperly delegating appointments authority to staff — similar to an argument previously raised by professor Jennifer Nou. Six of the remaining justices held that the SEC’s staff-level appointments of ALJs constituted a constitutional violation. In an opinion written by Justice Elena Kagan, the court concluded that the SEC’s ALJs are “officers of the United States” who must be appointed by “the President, a court of law, or a head of department” — not by staff.

In addition to the somewhat surprising margin of decision in what at times seemed a controversial case, the Lucia litigation had several atypical twists along the way. The U.S. Court of Appeals for the District of Columbia Circuit had agreed to rehear the Lucia decision en banc even though the panel opinion was a straight-up application of D.C. Circuit precedent from 2000. Then the en banc court split 5-5, issuing just “a per curiam order denying Lucia’s claim.” Finally, at the cert stage, the government changed its litigating position, agreeing with the petitioner that the ALJs are “officers.” Further, the solicitor general asked the court to consider whether the ALJ’s good-cause removal protections improperly restrict executive supervision.

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It’s a rainy day in Washington, and some people entering the courtroom have wet shoulders. This opinion day was added only yesterday, and the public gallery is not completely full. The bar section is even emptier than it was yesterday, with a few regulars in attendance again because they are awaiting one decision or another.

Solicitor General Noel Francisco leads the contingent from his office, joined by his deputies Edwin Kneedler and Malcolm Stewart, as well as a handful of others.

In the VIP box, Jane Roberts, the wife of Chief Justice John Roberts, is here today. Across the courtroom, in the press seating, this leads to speculation that a decision could be coming from the chief justice in Carpenter v. United States, about warrantless police searches of cell-site location information. The chief justice is the only member of the court who hasn’t written a majority opinion out of the December sitting. Reporters’ guesses are usually correct, as long as one ignores all the times that our speculation misses the mark.

The bench as Chief Justice Roberts announces opinion in Carpenter v. United States (Art Lien)

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Eight justices sided with Wescley Fonseca Pereira in his argument that a government-issued document notifying him of the government’s intention to initiate removal proceedings against him did not stop the clock on his continuous physical presence in the United States, leaving him eligible for potential relief from removal. At a time when immigrants are frequently dehumanized, it is worth noting that the majority opinion, signed by eight members of the court, not only expressly affirms Pereira’s contributions to his community, but also eschews entirely the use of the statutory term “alien” in favor of “noncitizen,” a term that the court defines in footnote 1.

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