Editor's Note :

Editor's Note :

We expect additional orders from the January 19 conference on Monday at 9:30 a.m.

lee

Thomas Lee has a storied pedigree in both his home state of Utah and the legal field. His father, Rex Lee, served as the U.S. solicitor general and the president of Brigham Young University. Lee’s brother, Mike, serves as a U.S. senator from Utah and is also on President Donald Trump’s list of potential Supreme Court nominees. If nominated and confirmed, Lee would be the court’s first Mormon justice.

Thomas Lee graduated from Brigham Young University and the University of Chicago Law School and went on to two clerkships: the first for Judge J. Harvie Wilkinson on the U.S. Court of Appeals for the 4th Circuit, and the second for Supreme Court Justice Clarence Thomas. After his Supreme Court clerkship, Lee worked in private practice before becoming a full-time professor at BYU’s law school. From 2004 until 2005, Lee served as a deputy assistant attorney general in the civil division of the U.S. Department of Justice, where he headed the department’s Federal Programs Branch, which defends federal agencies, federal statutes, and the president in high-profile cases. In 2010, Utah governor Gary Herbert appointed Lee to the state’s supreme court, where the 52-year-old now serves as the associate chief justice.

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Oyez has posted audio and transcripts from this week’s oral arguments at the Supreme Court.

The court heard argument this week in:

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Friday round-up

By on Jan 20, 2017 at 7:26 am

After its conference yesterday, which was held a day early because of the presidential inauguration, the justices granted cert in two cases. Amy Howe covers the grants for this blog. In The National Law Journal (subscription or registration required), Tony Mauro reports on one of the grants, Bristol-Myers Squibb Co. v. Superior Court of California, a “key business dispute over a California court ruling that made it easier for nonresidents to join in mass class action lawsuits,” noting that the case “is one of several jurisdiction-related petitions filed with the court in recent months.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in Bristol-Myers.] In The Washington Post, Robert Barnes reports that yesterday’s other grant, in District of Columbia v. Wesby, a case stemming from an arrest for trespassing that raises questions about the Fourth Amendment and qualified immunity, “appears to have split the Supreme Court justices,” who “considered nine times whether to accept the case before agreeing to review it.” Mark Sherman also covers the grant in Wesby for the Associated Press.

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Petition of the day

By on Jan 19, 2017 at 11:26 pm

The petition of the day is:

16-692

Issues: (1) Whether a choice-of-law provision in a foreign state’s contract automatically waives sovereign immunity under 28 U.S.C. § 1605(a)(1), regardless of the contract’s other terms indicating an intent not to waive immunity; and (2) whether, given the requirement that any waiver of foreign sovereign immunity be narrowly construed, an implied waiver of immunity in one agreement between the parties gives a court license to extend the waiver to claims not premised on that agreement.

With the Supreme Court closed tomorrow for the inauguration of President-elect Donald Trump, the justices met today, one day early, for their private conference. One week after adding 16 new cases to their docket, today the justices granted review in two more – potentially filling out their merits docket for the term.

The first grant came in District of Columbia v. Wesby, a case that presents important questions regarding the assessment of probable cause by police officers and qualified immunity. The case arose when police officers in Washington responded to a noise complaint about a vacant house, where they found scantily clad women and the smell of marijuana. No one seemed to know who owned the house or precisely what the occasion was, but some of the partygoers told police that they had been invited by someone named “Peaches” or “Tasty” – who was not at the party, but who admitted that she did not have the owner’s permission to use the house.

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When walking into a play titled Roe, one might expect a dry analysis of a legal case or a fiery pro-choice rally. Instead, Roe delivered a clever, often comic portrayal of the two women at the center of the story behind the controversial Supreme Court abortion decision — Sarah Weddington, the young lawyer who argued the case, and Norma McCorvey, aka Jane Roe — and their divergent recollections of events. Lisa Loomer based the play on Weddington’s and McCorvey’s books, and the play often breaks the fourth wall to explain points of contention in the two accounts.

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Thursday round-up

By on Jan 19, 2017 at 7:44 am

Yesterday the court heard two hours of oral argument. The first hour featured Lee v. Tam, a First Amendment challenge to a government refusal to trademark a disparaging name. Amy Howe analyzes the argument for this blog. Also covering the oral argument in Lee v. Tam are Mark Walsh at Education Week, Daniel Fisher at Forbes, Tony Mauro at Law.com (subscription or registration required), and Robert Barnes at The Washington Post, who reports that a “majority of the Supreme Court seemed highly skeptical” “that the federal government can refuse to register all trademarks that may be disparaging, casting this as the government improperly taking sides in free speech disputes.” Commentary on the argument comes from Erica Goldberg at In a Crowded Theater and Ruthann Robson at the Constitutional Law Prof Blog. Additional coverage of the case comes from Maggie Baldridge at Constitution Daily.

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In 2011, Simon Tam tried to register The Slants, the name of his rock band, as a trademark – a word, name or symbol used to identify a product and to identify its source. Tam had named his band The Slants to bring attention to discrimination against Asian-Americans, but the U.S. Patent and Trademark Office rejected his application. The PTO explained that a provision of the Lanham Act bars the government from approving trademarks that contain “matter which may disparage … persons, living or dead, institutions, beliefs, or national symbols.”

The U.S. Court of Appeals for the Federal Circuit reversed. It agreed that the mark Tam was seeking to register was “disparaging,” but it concluded that the Lanham Act’s ban on the registration of disparaging marks violates the Constitution. The Supreme Court agreed to weigh in last year, and after nearly an hour of oral argument yesterday it seemed poised to agree with the lower court. That could be good news for the Washington Redskins, whose case is now on hold in the U.S. Court of Appeals for the 4th Circuit after the NFL team’s trademarks were cancelled in 2014.

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Petition of the day

By on Jan 18, 2017 at 11:20 pm

The petition of the day is:

16-683

Issues: (1) Whether, for a defamation plaintiff to be deemed a limited-purpose public figure, the defamatory statement must be directly related (or “germane”) to the plaintiff’s voluntary involvement in the particular public controversy; and (2) if the court grants certiorari on the above question, whether a court may grant summary judgment in an actual-malice case on the ground that the plaintiff has not proven that the defendant “actually possessed subjective doubt” about the truth of a story, even if, based on the admissible evidence, a reasonable jury could find that the defendant actually possessed subjective doubt.

When Acting Solicitor General Ian Gershengorn took the lectern today in Ziglar v. Abbasi, he attempted to paint a portrait of déjà vu all over again. The three consolidated cases before the Supreme Court today were brought by a group of Muslim and Arab men who were in the United States illegally and were arrested after the September 11, 2001, attacks; they claim that their rights were violated when they were held in detention centers under unreasonably harsh conditions until they were cleared of any connection to terrorism, even though federal officials knew that they had no connection to terrorism, solely because of their race and ethnicity. According to Gershengorn, today’s cases were simply a reprise of 2009’s Ashcroft v. Iqbal, in which the justices ruled that a complaint filed by another Muslim detainee, alleging that his harsh treatment in prison violated the Constitution, needed to contain enough facts to demonstrate that the officials he was suing had implemented the policy to discriminate: The plaintiffs in today’s cases, Gershengorn contended, were essentially seeking to hold the same government officials responsible for the same conduct. By the end of the hour, it seemed likely that today’s detainee cases will meet a similar fate as that of Javaid Iqbal. Even strong advocacy from Rachel Meeropol, the lawyer representing the detainees, did not appear to be enough to overcome the justices’ reservations about holding government officials personally responsible for their role in implementing policy following a national emergency – particularly when Justices Sonia Sotomayor and Elena Kagan, two members of the court more likely to be sympathetic to the plight of the detainees, were recused from the case.

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