News on the Apple/Blogger Case

Desktop Wallpaper, Apple, Logo gambar – Bloggers Can’t Shield Sources

CNET – Judge delays decision on Apple trade secrets case

NYTimes – Apple Asks Judge to Order Web Sites to Name Sources – Apple seeks blogger records in information leak case – No Apple ‘Asteroid’ decision yet – Is Apple The New Microsoft? – Loss for online publishers

My original post on the case is here. Judge Kleinberg assured reporters that he would rule as soon as possible.

UPDATE: Bloggers boycotting Apple?

UPDATE II: Marc Perkel has links to the briefs.

UPDATe III: Doug Fisher over at Common Sense Journalism has some interesting comments on the case. His advise to journalists: This is a threat to you as much as it is to bloggers!

Good Question

This one’s a doozy. Via VC but originally posed by Howard Bashman.

October 2018 – How AppealingAssume that the [Supreme] Court issues a decision holding that the U.S. Constitution prevents a State from criminalizing certain specified conduct (e.g., early term abortion or consensual sodomy). Later, assume that the Court reverses course and holds that the U.S. Constitution does not prevent a State from criminalizing that same specified conduct.

Is the effect of the first ruling to wipe from the books in all States, or in any States, the laws criminalizing the specified conduct? Would the second ruling allow States to begin enforcing the laws that were in existence when first ruling issued that the first ruling had declared or implied were unconstitutional? Or would the second ruling require States that wished to criminalize the specified conduct to pass new laws doing so, even if those States had identical laws on the books when the Court’s first ruling issued?

I haven’t the slightest…but if you do head over here to comment.

UPDATE: Stuart Buck points us to this law review article which adresses the question.

One thing to clear up right off the bat, however, is the common misconception that federal courts have the power to “strike” down a law. We usually imagine that a statute, once declared unconstitutional, “is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as thought it had never been passed.”191 But this is not technically accurate. Despite such language used by courts and commentators, there is no such thing as “striking down.” A federal court has no power to erase a statute from a state’s lawbooks.192 As one prominent scholar said, “No matter what language is used in a judicial opinion, a federal court cannot repeal a duly enacted statute of any legislative authority.”


Martin S. Lederman



UPDATE II: This makes sense. Marty Lederman states, “A Court declaration of unconstitutionality…”merely” serves as a de facto injunction against application of the statute.”

Superhighway to Serfdom

Dahlia Lithwick speaks into a microphone when testifying to the House Judiciary Committee.Dahlia Lithwick of Slate filed this report on the Kelo v. City of New London oral arguments. Unfotunately Lithwick’s predictions mirror those of Marty Lederman.

Justice Ruth Bader Ginsburg points out that the city is depressed; what’s wrong with efforts to “build it up and get more jobs?” Bullock says the condemned land in Berman was “blighted,” but this land is merely depressed. O’Connor, never one to tip her hand too early at argument, asks Bullock “What standard should we use to second-guess the legislature?” Bullock insists that once condemned land is passed off to private developers, it’s no longer going to “public use.” Justice Anthony Kennedy interrupts to observe that “everybody knew private developers were the beneficiaries” when slums were condemned in Berman.

And then there’s this.

Justice Antonin Scalia asks what difference it makes that New London is depressed. What if a city acknowledged that it wasn’t doing badly, but just wanted to condemn land to attract new industry? He describes Horton’s position as: “You can always take from A and give to B, so long as B is richer.” And O’Connor offers this concrete example: What if there’s a Motel 6 but the city thinks a Ritz-Carlton will generate more taxes? Is that OK?

Yes, says Horton.

“So you can always take from A and give to B if B pays more taxes?” asks Scalia.

“If they are significantly more taxes,” says Horton.

I’m speechless. Read the whole thing here. As the Iconic Midwesterner puts it, “Welcome to serfdom…”

UPDATE: Here’s the WaPo story.

wapo logo 2“What this lady [Kelo] wants is not more money,” Justice Antonin Scalia said. “She says I’ll move if it’s for the public good, but not just so that someone else can pay more taxes. This is an objection in principle that ‘public use’ in the Constitution seems to be addressed to.”

UPDATE II: Like Prof. Bainbridge says, “It’s a moral outrage.”

Wow. The arrogance is breathtaking. Other than his presumably grudging acceptance of the Constitutional requirement that the city pay fair market value for the land, the city’s counsel – one Wesley W. Horton – would make the creators of the old Soviet kolkhozy proud.

The Looming Nomination Battle

Tom Goldstein photo.jpegTom Goldstein at SCOTUSblog opines that the coming battle over Supreme Court nominations will be the fiercest ever. His proof: the recent Ramesh Ponnuru piece calling out Laurence Tribe on his recent Green Bag article which holds some pretty over the top claims.

Feel free to read the Tribe and Ponnuru pieces yourself. But there is a broader point here: what is a serious publication like National Review doing publishing something so profoundly silly as this long piece? Could it be a short blog post somewhere(heh, like here)? If it’s accurate, perhaps. But this is umpteen words in the print version of the National Review.

The only thing I can figure is that the battle lines for the next Supreme Court nomination are being drawn in frighteningly personal terms. Tribe is an icon of the left who probably would be involved in a nomination fight, so the National Review has now joined the Weekly Standard – you’ll remember its recent piece concluding that sentences in a book Tribe wrote a couple of decades ago had an “uncomfortable reliance” on a book by Henry Abraham, to whom Tribe had sent an advance copy and whom Tribe credited – at trying to take a (lame) crack at Tribe’s personal credibility. Ponnuru seems to hit a new low, however, in spending a lot of words trying to make such a trivial point about an essay that is actually about the death of Tribe’s father – a subject that Ponnuru essentially back-handedly mocks.

I agree with Tom to the extent that the Tribe story could have been relegated to a simple post in the blogosphere(i.e., my post). It must be said, though, that Tribe’s essay was over the top and he therefore is subject to some degree of scrutiny. However, the fact that one side thought the story merits inclusion in the print version of a nationally circulated magazine does provoke the looming fear that the nomination battle will be less than jovial.

On Roper and Stare Decisis

First, in the interest of full disclosure I will admit that I oppose the death penalty in all regards. This bias may or may not interfere with my interpretation of Roper v. Simmons. In any event…many people are having a hard time digesting this ruling not because of the result, but because of the logic behind it. The logic of the opinion goes like this. Courtesy of Mark Stancil,

Roper V Simmons timeline | Timetoast timelinesThe Eighth Amendment reflects an evolving standard of decency, discerning which requires a two-step process. First, look at the “objective indicia of consensus, as expressed in particular by the enactments of legislatures that have addressed the question.” Second, the Court “must determine, in the exercise of our own independent judgment, whether the death penalty is a disproportionate punishment for juveniles.”

The problem that most have with this case is that the justices have taken it upon themselves to decide the “standard of decency” held by the United States population as a whole. They disagree that it is the Supreme Court who is to decide the “standard of decency.” Now it is one thing to disagree with the Court’s finding as to whether the standard of decency has changed. In fact many people take issue witht this alone, but it is entirely different to take issue with whether it is the Court’s responsibility to decide this issue(i.e., whether juvenile death penalties are “cruel and unusual”).

Here’s a quiz. Who wrote this?

[Petitioners argue] their punishment is contrary to the “evolving standards of decency that mark the progress of a maturing society,” They are correct in asserting that this Court has “not confined the prohibition embodied in the Eighth Amendment to ‘barbarous’ methods that were generally outlawed in the 18th century,” but instead has interpreted the Amendment “in a flexible and dynamic manner.” In determining what standards have “evolved,” however, we have looked not to our own conceptions of decency, but to those of modern American society as a whole. As we have said,

Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual Justices; judgment should be informed by objective factors to the maximum possible extent.

I’ll give you a hint, his name starts with an “S” and ends with “calia.” Scalia, writing in Stanford v. Kentucky, acknowledges that when determining whether a particular punishment is “cruel and unjust,” the Court must determine the “conceptions of decency…of modern American society as a whole.”

So what was overruled in Roper v. Simmons? The test certainly remained the same. In determining whether the juvenile death penalty is a “cruel and unusual punishment” the Court used the exact method it used fifteen years ago in Standford v. Kentucky. The logic is virtually unchanged. The difference? They reached a different conclusion this time around.

Did they reach a different conclusion based on shaky evidence? Perhaps. Did they overturn Stanford with the reckless disregard for stare decisis? Absolutely not. Stanford put forth a straightfoward analysis. When defining “cruel and unusual” the Court must look toward the conceptions of decency of the society as a whole. In Standford, the Court recognized that the standard of decency will evolve, and after fifteen years, the Court found that it had. It was a simple application of the law.

As I stated before, taking issue with how the Court’s analysis(i.e., how many states have banned juvenile death penalties) panned out is one thing, but saying that the Court abandoned the law and stare decisis is another. In fact, its fallacious.

UPDATE: Matt Barr provides a coherent argument against the silly notion that because the United States is one of the relatively few nations that does(did) allow juvenile death penalties, it is therefore “unusual.”

UPDATE: Kevin Drum seems to agree. Via Prof. Bainbridge.

Asbestos Bill Update

Reuters reports,

Washington – Destinations | TAP Air Portugal

WASHINGTON (Reuters) – Senate Republicans will meet again on Thursday to discuss a proposal for a $140 billion asbestos compensation fund, Sen. Arlen Specter said after a lengthy session on the issue on Wednesday.

Speaking after more than an hour with Senate Judiciary Committee Republicans and Senate Majority Leader Bill Frist, Specter said he was “considering” changes in his proposal to address Republican concerns. But the Pennsylvania Republican added that he still hoped to attract Democratic supporters as well.

Specter, the Judiciary Committee chairman, canceled what had been planned as a full meeting of the panel for Thursday in order to meet again with Republicans on the asbestos bill draft. Republicans have raised concerns about whether the proposed fund will provide a final cap on asbestos liability for business and insurers.

Ten Commandment Oral Arguments

Here’s Bloomberg’s report. on oral arguments that were heard today. The comments from the justcies were pretty predictable.

Several justices expressed support for letting the monument remain on the Capitol grounds. They noted that many legislatures open their sessions with a prayer and that the high court itself has a decorative frieze that shows Moses, holding a tablet depicting the commandments, among other historical lawgivers.

Out of Order' by Sandra Day O'Connor - The Boston Globe“You don’t object to that,” Justice Sandra Day O’Connor said to Duke University law professor Erwin Chemerinsky, representing homeless lawyer Thomas Van Orden of Austin, who challenged the monument. Later in the argument, though, she told the Texas attorney general that every monument on the state Capitol grounds “conveys a message of state endorsement.”


Justices Anthony M. Kennedy and Antonin Scalia spoke in favor of keeping the Texas monument on the Capitol grounds.

“If an atheist walks by, he can avert his eyes,” Kennedy said. Saying the government can’t accommodate religion is “hypocritical and it’s asking religious people to surrender their beliefs,” he said.

The commandments are “a profound religious message believed in by a vast majority of the American people,” Scalia said. “There’s nothing wrong with the government reflecting that.”

Justice John Paul Stevens questioned how far governments could go, asking Texas Attorney General Greg Abbott whether the state could display a crucifix of the same size outside the Capitol. Abbott said he doubted it, because a crucifix wasn’t a recognized symbol of law.

Noting that the monument contained religious symbols such as the words Chi and Rho and a star of David, Justice David H. Souter said it was hard to find there was “anything here but an expression of approval by the state of Texas for a religious expression.”

UPDATE: Lyle Denniston of SCOTUSblog has filed his report on the oral argument.

Kelo Arguments

From SCOTUSblog, Marty Lederman reports on Kelo v. City of New London oral arguments.

Marty reports that, based on the impression left by the oral arguments, the government-side is going to win today’s property rights cases overwhelmingly.

In Kelo, the plaintiffs may get as many as three votes: Scalia; Thomas (who did not ask any questions); and Rehnquist (who was not there). But it was clear to O’Connor and Kennedy that the Court would have to overrule Midkiff and Berman to rule for the plaintiffs, an approach for which there was no majority. The only possible silver lining for property-rights advocates was that Justices Kennedy, Souter, O’Connor and Breyer all expressed concern that the traditional measures of just compensation under the Fifth Amendment may be subject to reconsideration. Justice Kennedy acknowledged the question wasn’t presented in Kelo, but the Court’s opinion or a concurrence may raise the issue, opening a new avenue of property-rights litigation.

In Lingle, it appears that the government will win unanimously. As Justice Scalia put it at argument, the Court may have to “eat crow” and abandon the suggestion it has made in several cases that there is a “substantially advances” test for what constitutes a taking.

The moment of the day came in Kelo when the city’s counsel attempted to close by saying, “I want to leave you with just four words,” then his time expired. (Although he did say — using more words, “I see my time has expired so I won’t be able to tell you them.”) Justice Kennedy then asked the plaintiff’s lawyer on rebuttal, “You don’t happen to know what the four words were?” Regrettably, he didn’t.

Here’s to hoping the situation isn’t as bleak as the reporter suggests. Furthermore, I’m not sure that the Court would necessarily have to overrule Midkiff and Berman to rule for the plaintiffs. Comments later…if only there were more hours in the day.

Texas Supreme Court Gets Angry and Throws a Rock at Lower Court

…and Texas lower court runs home and tells mommy.

In Creditwatch v. Jackson, Denise Jackson filed suit against Creditwatch alleging sexual harassment. However, once defendants moved for summary judgment, Jackson amended her complaint alleging only…you guessed it…intentional infliction of emotional distress. To make a long story short, the case ended up in the hands of theTexas Supreme Court who whined opined,

For the tenth time in little more than six years, we must reverse an intentional infliction of emotional distress claim for failing to meet the exacting requirements of that tort.


This tort was never intended as an easier and broader way to pursue claims already protected by our expanding civil and criminal laws. If the tort is to remain viable where “gaps” still remain, litigants and judges cannot entertain it as a catch-all that avoids the careful balancing behind alternate legal claims.

Hat tip to Michael Fox

Kelo Optimism

Now all this doom and gloom from these reports must be taken with a grain of salt. I still remain optimistic that the plaintiff’s will salvage at least some nominal win here. Quin Hillyer of Southern Appeal writes,

An image posted by the author.So, why do I think the homeowners will do okay? Because I’m assuming three justices — Scalia, Thomas, and Rehnquist — will posit some fairly bright-line test of what “public use” means, and that the test does not extend as far as “public benefits from greater tax revenues.” I’m then assuming that Breyer and O’Connor will find some way to aggregate more power to the courts by seeing how thinly they can slice the “rational basis” apple. Clearly, those justices sympathize, and rightly so, with the homeowners, and I think they will look for some grounds to avoid killing the homeowners’ hopes. I also believe that Kennedy may join them, although he probably won’t because he’ll want to assert some kind of federalist principle that in this case isn’t really there (being superseded, logically, by the Constitution’s due process protections for property and — I uniquely argue — by its protections of the rights of contract).

Finally, oddly enough, I wouldn’t rule out Stevens coming down somewhere on the side of the homeowners, even if he has to concoct some theory out of thin air. He’ll see the NAACP and the AARP and other liberal advocates coming down on the homeowners’ side, and he’ll continue to see himself as the champion of the “little guy,” and so he may well make some sort of anti-big corporation argument and throw in references to Mussolini for good measure.

UPDATE: Phocion of Ex Post makes a good point. If Berman and Midkiff are so obviously controlling, why grant cert. at all? Either they intend to widen or restrict Midkiff’s ruling. Given the controversies and obvious abuses of eminent domain, it seems strange for this court(which is still by the way considered a conservative one) to widen the definition of “public use.”

Nonetheless, it would be very disappointing if some compromise is struck which only deals with “just compensation.” As Dahlia Lithwick’s article suggested, Kennedy and Breyer really seemed to focus in on the compensation issue.

UPDATE II: For the overly curious, the infamous four words of the respondent at the end of his argument were, “federalism, boundaries, discretion, and precedent.”