Author: Gerard Magliocca

1

Justice Breyer and International Copyright

Justice Breyer has a new book out that discusses the importance of international and comparative law to the Court’s work. I find this ironic given Justice Breyer’s position in several of the Court’s major copyright decisions.  In Eldred v. Ashcroft (2003), Golan v. Holder (2012), and Kirtsaeng v. Wiley (2013), Breyer’s analysis consistently discounted international or comparative factors in either assessing the constitutionality of a copyright statute or interpreting such a statute.  To wit:

In Eldred, Justice Breyer dissented and argued that Congress’s extension of the copyright term for existing works was invalid.  He took this view in spite of the fact that Congress took this step (in part) to match a decision by the European Union on the appropriate length of copyrights.

In Golan, Justice Breyer dissented and argued that Congress could not constitutionally remove works from the public domain.  He took that position in spite of the fact that Congress took this step to bring the United States into compliance with the Berne Convention.

Finally, in Kirtseang Justice Breyer authoring the Court’s opinion construing the Copyright Act as providing that the first sale doctrine applied to copies of a copyrighted work made abroad.  He did this in spite of the assertion (made in dissent by Justice Ginsburg) that the Court’s interpretation contradicted the United States’s position in global copyright negotiations on “international exhaustion.”

Now all of these positions might be perfectly justified.  (Indeed, I think that Breyer was right in Golan, though wrong in Eldred.) I just think it shows that “taking certain considerations into account” says little about how cases should be resolved.

11

A Possible Lawsuit

I want to solicit opinions on the following constitutional question that I am thinking of litigating.

Indiana bans the sale of alcohol in grocery stores on Sundays.  This is an old statute and at this point we are either the only state or one of the few that has such a law.  Every year noises are made in the Legislature about repealing this Sunday alcohol ban, but so far nothing has happened.

It seems to me that this is a classic (if rare) example of an irrational statute that should be declared unconstitutional.  I find it hard to come up with any logical rationale for this.  It’s not as if all alcohol sales are banned here on Sundays (restaurants can sell drinks and so can the stadium where the Indianapolis Colts play).  Why, then, is a distinction made between these vendors and grocery stores?  More broadly, what is the purpose served by banning alcohol sales on a Sunday that isn’t purely religious, which I assume was the original idea?

I would invite groups that want to subject economic regulation to judicial scrutiny to consider litigating this issue.  I’m toying with the idea of doing it myself (largely because I think it would be fun and that I can win), but perhaps I’m missing something.

UPDATE:  Michael Risch correctly points out in a comment that the Court upheld various “Sunday” laws in the 1960s. I would submit, though, that those cases are distinguishable because Indiana’s decision to restrict the sale of one type of good through one type of retail channel cannot survive rational basis review.

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State Sovereign Immunity in Another State

In looking over the cases that the Court will be hearing in the next few months, one notable (if less sexy) one is Franchise Tax Board of California v. Hyatt.  Hyatt presents the question of whether a state can deny sovereign immunity to other states in circumstances where the home state gets sovereign immunity in its state courts.  One of the Questions Presented asks the Court to overrule Nevada v. Hall, a 1979 decision holding that states did not have sovereign immunity in the courts of other states.

Hall would appear to be on thin ice.  It is inconsistent with the line of decisions that began in 1996 with Seminole Tribe and give the states broad sovereign immunity under the 11th Amendment. Justice William Rehnquist, who wrote Seminole Tribe as the Chief Justice, dissented in Hall on grounds similar to what he later turned into law on related issues.

If the Court does overrule Hall, it will be interesting to see whether Justices Sotomayor and Kagan decide to embrace Seminole Tribe under stare decisis.  One can expect Justices Ginsburg and Breyer, who dissented in Seminole Tribe, to adhere to the view that this entire line of authority is wrongheaded.  The new Justices have not opined on this question, though, and thus it is possible that Hyatt will reveal whether Seminole Tribe has become settled law or not.

1

Hoyt v. Florida Oral Argument

I mentioned in a prior post that I’m listening to the Supreme Court oral arguments that are now available on the Oyez Project at Chicago-Kent.  One that was high on my list to listen to was Hoyt v. Florida, a 1961 decision that upheld a Florida law that only made jury service mandatory for men.  Hoyt was convicted of killing her husband by an all-male jury, on her argument on appeal was that Florida’s statute, which said that women had to affirmatively volunteer to be in the venire, denied her a fair trial.  The Court rejected this challenge unanimously.

The argument is fascinating because it contains a mix of modern gender discrimination arguments and traditional stereotypes.  Hoyt’s attorney made some claims that sound familiar (women suffered from broad discrimination, we would be skeptical of a man convicted by an all-female jury for killing his wife), but he also made the curious choice to say that his co-counsel who wrote most of the brief was a woman but he was arguing the case.  He also was more or less forced to rely on gender stereotypes (e.g., women are more emotional) to argue why women should be on juries.

Anyone, it’s well worth a listen.

5

John W. Davis

183px-John_William_DavisIn thinking about other possible subjects for a compelling biography, one person that comes to mind is John W. Davis, who was the leading Supreme Court advocate of his era.  Davis argued over 100 cases to the Justices as Solicitor General and in private practice, including The Steel Seizure Cases (which he won).  He was also a Congressman, the Democratic nominee for president in 1924 (he lost to Coolidge), and a leader of the bar for decades.

Davis is unknown (or infamous) today because he argued the segregationist position in Brown.  Why did he take the case?  The obvious answer is that he was a racist, but the truth appears more complicated.  In 1924, Davis fared poorly in the general election partly because Southern Democrats viewed him as too liberal on race based on his record as SG.  How did that guy become the villain in Brown?  I don’t know, but I’m going to try to learn more.

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The Double Jeopardy Clause and Puerto Rico

One of the cases granted by the Court yesterday raises some intriguing issues that I want to discuss.  In Puerto Rico v. Sanchez Valle, the question presented is whether Puerto Rico and the Federal Government are separate sovereigns for purposes of the Double Jeopardy Clause.  Under Bartkus v. Illinois, a 1959 decision written by Justice Frankfurter, the Double Jeopardy Clause does not bar the United States from prosecuting someone who was acquitted in a state criminal trial.  The Court’s theory was that this part of the Fifth Amendment applies only to a specific level of government–federal or state–that is sovereign. Is Puerto Rico analogous to a state because of its unique commonwealth status, or is it more appropriate to view Puerto Rico as a federal territory that is not a separate sovereign in this context?  Because Justice Sotomayor is Puerto Rican and wrote her Note on the legal status of the island, her perspective should be especially interesting

I hope, though, that some amicus or Justice raises the question of whether Bartkus should be overruled.  The decision rests on a very dubious rationale and, I think, applied incorporation incorrectly with respect to this powerful principle that protects unpopular defendants.  Someone should make this point assuming that the Court decides that Puerto Rico is a separate sovereign.

 

3

“Hamilton, the Musical”

Hamilton_smallI am listening to the Broadway cast recording of “Hamilton,” and it is fantastic.  My definition of a great idea is something that sounds obvious once you hear it but was never thought of or done before.  That is true in this case, but with the additional thought that even if I had considered writing a rap musical about Hamilton, I could never have done it.  Some people are just touched by genius.  (The George III songs are particularly inspired, though there many others.)

With respect to Hamilton, I was thinking yesterday that it’s remarkable that he was so influential given he was never elected to anything.  (He may have been popularly elected to be a delegate at New York’s constitutional ratifying convention, but everything else was appointed.)  Indeed, Hamilton may be the most important unelected official in our nation’s history, though there are some Justices with a claim to that title.

 

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Married Filing Separately

I have a question for all of our readers who are tax attorneys.  What is the point of having a separate federal tax status of “married filing separately?”

When I got married, I looked into this filing and concluded that you should do it only if: (a) you were legally separated from your spouse, or (b) you thought your spouse was crooked and did not want to sign a joint return.  Now I understand that there could be other exotic scenarios where a married couple would pay less filing separately, but I’m wondering why this category was created in the first place?  Was there some problem that Congress was trying to address?

P.S.  This is probably my first tax post in six years of blogging.

1

Voting in Presidential Primaries and Caucuses

A student posed the following question that I thought I’d address:  Is there a federal constitutional right to vote in the presidential nominating contest?  I think that the answer is no. (Suppose a state decided not to have a presidential primary or caucus.  The party bosses could just meet in a room and allocate the delegate’s according to party rules.  Would that violate the Federal Constitution?)

First, there is no right to vote for President.  The Constitution clearly gives state legislatures that right, and the Supreme Court has repeatedly said that there is no individual right to vote here as there is for other offices.  If there is no general right to vote, why would there be one in a party primary or caucus?

Second, there is a long tradition of people not voting for presidential candidates within the two parties.  The Iowa/New Hampshire model of nominating presidents only really got started in 1976, thus I think it would be hard to say that voters have a right to participate in the process.

Now are there any examples of voting restrictions that are specific to a presidential nominating contest that are more likely to be upheld because there is no underlying right to vote?  I don’t think so, but I’m not certain.

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Who Wrote This?

Greetings and salutations.  Chasing a toddler around while writing a book has knocked me offline for a while, but I’ve got some posts coming up this week.  Some of them will relate to my Bill of Rights research, as I’ve been grinding my way through hundreds of newspaper articles and periodicals going back to the 18th century to look at how the term was used.

Here is one tantalizing item that I want to discuss.  In September, 1792, an anonymous article “By a Farmer” appeared in a magazine and criticized future Broadway musical star Alexander Hamilton and his policies at the Treasury.  The author opened the article this way:

“As long as the state of America continue under the present form of government, the PEOPLE will have to lament the want of a bill of rights, which would clearly and unequivocally dictate to the legislature its duty, and to the people their rights.”

Anyone see the problem here?  The Bill of Rights was ratified in December 1791.  Evidently Mr. Farmer did not get the memo that this was a bill of rights or that we should celebrate its enactment into law.  The piece then went on to discuss the French Declaration of the Rights of Men, and then commented that the French were a highly enlightened people who:

“Have prefixed a bill of rights to their form of government, not as being applicable to their own situation alone, but as constituting the foundation of every just government.  Had the constitution of the United States a foundation equally firm and equitable; we should not at this day witness the law of the union stained with . . .” [then the author lists several of Hamilton’s initiatives].

What I want to see is if I can determine who the author of this was.  At that time prominent public men often wrote under a pen name.  This one obviously came from a Jeffersonian, but which one?

UPDATE:  The answer is George Logan of Pennsylvania, who earns his 15 minutes of fame as the namesake of the Logan Act.