Supreme Court Original Jurisdiction

The lawsuit by Nebraska and Oklahoma against Colorado is an interesting development on the legalization issue. This case filed by a state against another state would fall under the original jurisdiction of the Supreme Court which like appellate jurisdiction is discretionary. Texas v. New Mexico, 462 U.S. 554, 570 (1983).  They usually appoint a special master to conduct the trial and then review the record if they take the case and if it is justicible.

The lawsuit alleges that Colorado's marijuana legalization provision violates the Supremacy Clause of the United States Constitution.  U.S. Const. Art. VI, Clause 2.  Under federal law marijuana possession is illegal.  21 U.S.C. Section 812; 21 CFR 1308.11(d).  In Section 538 (page 213) of the recently passed Continuing Resolution Omnibus Act, the federal government cannot use federal funds to enforce federal laws that make the possession of marijuana illegal against state licensed medical users of marijuana.  That provision does not apply to non-medical possession and in states that have not legalized medical marijuana.

http://news.yahoo.com/2-states-challenge-colorado-marijuana-legalization-205235212.html?soc_src=mediacontentstory&soc_trk=fb

http://www.natlawreview.com/article/supreme-court-asked-to-decide-whether-colorado-s-marijuana-legalization-violates-con

http://www.ouraynews.com/articles/2014/12/19/colorado-states-file-suit-declare-marijuana-law-unconstitutional

http://www.cato.org/blog/nebraska-oklahoma-sue-colorado

http://www.rollingstone.com/politics/news/oklahoma-and-nebraska-sue-colorado-over-dangerous-marijuana-law-20141219

The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler

Legal Fee Shifting in Patent Litigation

The Supreme Court is considering lowering the requirements for prevailing defendants in patent litigation to recover the legal fees they incurred in defending the lawsuit.

http://www.bloomberg.com/news/2014-02-26/patent-legal-fees-weighed-in-high-court-case-watched-by-apple.html

Software Patents

Software patents will come before the Supreme Court this term.   Generally, abstract mathematics cannot be patented.  Yet the USTPO has issued many many software patents over the last several decades.  Many of these patents cover simple functions and often overlap with other the claims made by other patents.  Many of these patents are owned by non-practicing entities, also known as patent trolls by many, which make and sell nothing.  These entities do, however, produce lawsuits against companies and person that are active in the marketplace.  Major technology companies also race to accumulate these patents as both a defensive measure against lawsuits and as a sword to attack their competition.

LINKS:

http://www.washingtonpost.com/blogs/the-switch/wp/2013/12/06/the-supreme-court-could-abolish-software-patents-next-year-heres-why-it-should/

http://www.forbes.com/sites/timworstall/2013/12/25/the-apple-and-microsoft-backed-rockstar-starts-to-find-problems-with-its-patent-portfolio/

http://www.theregister.co.uk/2013/12/26/google_v_rockstar/

http://arstechnica.com/tech-policy/2013/12/google-files-counter-suit-against-rockstar-seeking-to-avoid-east-texas/

http://www.zdnet.com/microsoft-fat-patent-loss-endangers-its-android-revenue-7000024103/

http://www.usatoday.com/story/money/business/2013/12/06/court-case-could-mean-death-of-software-patents/3894877/
 

Habeas Corpus and Guantanamo

Your Guantánamo Moment from Yale Law School on Vimeo.
P. Sabin Willett discusses his moment of revelation as an attorney, and those moments that will come for the next generation of lawyers Oct. 24, 2011, at Yale Law School.

This video is an interesting discussion by a lawyer who represented some of the Uyghur detainees on habeas corpus and detainee treatment act appeals. I think anyone who has done at least some defense work can relate to his experience in many respects. 

The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler

Retired Supreme Court Justices

The article below is about the role that retired justices of the Supreme Court continue to play in the legal system after their retirement.  Many go on to sit on panels in the various United States Circuit Courts of Appeals deciding cases.

http://www.washingtonpost.com/politics/retired-supreme-court-justices-still-judge--and-get-judged/2013/03/10/1b22943c-897f-11e2-8d72-dc76641cb8d4_story.html

The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler

The Takings Clause and Permits

The United States Supreme Court heard oral arguments today in Koontz v. St. Johns River Water Managment District.  A landowner in central Florida sought a permit to develop his property.  The Water Managment district required him to set aside 11 out of his 14.9 acres for conservation and pay for improvements on state owned land several miles away from his property that would have cost between $10,000 and $150,000.  The landowner refused and was denied a permit to develop his property.  He sued claiming that the refusal to issue a permit constituted a taking without just compensation under the 5th Amendment.


http://www.csmonitor.com/USA/Justice/2013/0115/Supreme-Court-hears-oral-arguments-in-Florida-property-rights-case

Transcript of Oral Arguments: http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-1447.pdf

In Memorium - Judge Bork

I enjoyed taking Judge Bork's class and talking to him while I was at Ave Maria School of Law. He had some great stories particularly about Watergate. It seems my fellow Ave alumni have some interesting stories about him based on the Facebook posts today. Sad to see him go.  
I agree with the assessment of one his former law clerks found here:
http://www.foxnews.com/opinion/2012/12/19/judge-bork-knew/
http://www.washingtonpost.com/local/obituaries/judge-robert-h-bork-conservative-icon/2012/12/19/49453de4-c5da-11df-94e1-c5afa35a9e59_story.html

http://www.nytimes.com/2012/12/20/us/robert-h-bork-conservative-jurist-dies-at-85.html?_r=0

http://www.nationalreview.com/corner/336152/judge-bork-rip-steven-g-calabresi

http://www.nationalreview.com/articles/336115/remembering-judge-bork-nro-symposium

http://www.slate.com/articles/news_and_politics/jurisprudence/2012/12/what_if_robert_bork_had_joined_the_supreme_court.html

http://online.wsj.com/article/SB124294934268945409.html

Books by Judge Bork

s/ Kurt Koehler
308 1/2 S. State Street
Ann Arbor, Michigan (MI) 48198 (Washtenaw County);

Double Jeopardy - Michigan v. Evans

This past week the United States Supreme Court heard oral arguments in Michigan v. Evans.  The issue in this case is whether a defendant can be retried after a judge erroneously grants a directed verdict.  The defendant can move for a directed verdict at the end of the Prosecution's case and before the defense begins to present its case when the prosecution has failed to meet its burden of proof. 

In Evans the defendant was being tried for arson.  The trial court granted a directed verdict of acquittal to the defendant because prosecutor's had not proved that the burnt house was a dwelling.  While proving that the burnt property was a dwelling was required at common law, it is not an element of statutory arson that the prosecution must prove in Michigan and most other jurisdictions.  The Michigan Court of Appeals and the Michigan Supreme Court reversed the trial court's directed verdict as erroneous and allowed the prosecution to try the defendant again.  The Michigan Supreme Court ruled 4-3 that the trial court's action was not an acquital, but a mere dismissal.  The opinion focused on the lack of a factual resolution in the trial court's rationale as the trial court was focused on a matter of law.  Evans appealed to the United States Supreme Court claiming that double jeopardy precluded a retrial. 

From the transcript it seems like the Court may be leaning towards allowing retrial in limited circumstances.  For instance it could take the position of the Justice Department and allow retrial in cases where judges add an additional element to the offense, but not allow it in cases where the trial court misconstrued an element of the offense.  Errors of substance could also be distinguished from errors of procedure.  Additionally, the Court could distinguish between procedural rulings and rulings that there was insufficient evidence to convict as Justice Breyer proposed.  Under this rule Evans would prevail.  Retrial is already allowed in cases of errors of procedure such as most mistrials and most instances of prosecutorial misconduct, but not when there is a verdict of acquittal based on insufficient evidence.  Another possible distinction would be between errors of law and factual errors.  That said, oral arguments are hard to read as many judges and justices will test both sides with difficult questions even if they have a good idea of which way they will rule.  Both sides at times undermined their own arguments.

http://www.reuters.com/article/2012/11/06/us-usa-court-doublejeopardy-idUSBRE8A51BC20121106

The United States Supreme Court Oral Argument Transcript and Audio:

http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-1327.pdf

http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-1327

The Michigan Supreme Court Opinion:

http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/SCT/20120326_S141381_58_evans-op.pdf

The Michigan Court of Appeals Opinion:

http://publicdocs.courts.mi.gov:81/opinions/final/coa/20100513_c290833_45_69o-290833-final.pdf

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

Alien Tort Statute

The Supreme Court reheard arguments in Koibel v. Royal Dutch Shell this past week.  I discussed this case on this blog back in February.  The issue before the court now is whether the alien tort statute can be used when the parties and the case have no connection to the United States. 

http://www.npr.org/2012/10/01/162110683/high-court-takes-up-human-rights-on-first-day-back

Previous Posts on the Alien Tort Statute:

http://koehlerlegal.blogspot.com/2012/03/alien-tort-statute-revisited.html
http://koehlerlegal.blogspot.com/2012/02/corporate-liability-under-alien-tort.html

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

Supreme Court Admission

On June 4 I was in Washington and took the oath to join the bar of the United States Supreme Court.  I went with the annual Phi Alpha Delta Day at the Supreme Court.  There were a couple of other groups there as well for the same purpose.  We got to eat breakfast and wait for the court hearing in the Rehnquist dining room.  The court issued two opinions during the hearing with Justice Thomas giving the opinion summary for Reichele v. Howards and Justice Breyer giving the summary for the opinion in Armour v. City of Indianapolis.  After the opinions were read they had each of us stand in turn after our names were read as part of the motion for admission made by Tom Bentz, a PAD attorney in Washington.  The entire group was then administered the oath by the court clerk Gen. Sutter.  Afterwards we returned to the dining room for a while and then left for pictures outside.  We had a group lunch at B. Smith's in Union station.

http://www.pad.org/upcoming-events/pad-day-at-the-supreme-court/

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

Update on the Alien Tort Statute and torture statute cases

I blogged about the alien tort statute case, Kiobel v. Shell Petroleum, a few months ago.  That case won't be decided until the next Supreme Court term.  The Court did decide a separate case,  Mohamad v. Palestinian Authority, which presented a somewhat similar issue.  The Court unanimously ruled only individuals and not corporations or organizations can be sued under the Torture Victim Protection Act.  The use of the word "individual" in the statute was decisive in the opinion written by Justice Sotomayor. 
http://www.bloomberg.com/news/2012-04-18/torture-suits-against-companies-blocked-by-top-u-s-court.html

The opinion: http://www.supremecourt.gov/opinions/11pdf/11-88.pdf

The oral argument transcript: http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-88.pdf

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)