Archive for the 'law' Category
stem cell research standing

The judge also finds that the two adult stem cell researchers who brought the case would suffer imminent and irreparable harm without the injunction because they would have to compete with embryonic stem cell researchers for research funds. That is absurd. Adult stem cell research is funded far more generously than work with embryonic stem cells. And there is no firm limit on the amount of money that can be spent on each. NYT editorial

How did this case not get knocked out on standing? Competing for funding? In two different fields ??? Absurd.

But for this absurdity we have to blame the D.C. Circuit Court of Appeals, not Judge Lamberth; it was the D.C. Circuit Ct. which granted the researchers “competitor standing”.

The Guidelines, by allowing federal funding of [embryonic stem cell] research, increases competition for NIH’s limited resources. This increased competition for limited funds is an actual, imminent injury. See Sherely, 2010 WL 2540358 at *5 (explaining that the increased competition that plaintiffs face is “substantial enough to deem the injury to them imminent”). There is no after-the-fact remedy for this injury because the Court cannot compensate plaintiffs for their lost opportunity to receive funds. Sherley v. Sebelius, D.D.C. 2010

Stacking the D.C. Circuit for years with pro-life Republicans has finally paid off!

The mind boggles: Any agency that funds more than one thing is open, now, to scrutiny by the possible fund-ees for potential legal suit. I suddenly see a future for all those laid-off New York law firm associates.

And, a fine example of how Congress works: Default BS caving in to lobbyists. In this instance, the “Dickey-Wicker amendment, that has been attached to annual appropriations bills for the Department of Health and Human Services since 1996″ — i.e., more absurd religious BS around abortion and fetal rights, affecting science and medicine.

And did the Obama administration tackle this problem directly? No, they avoided the problem the same way the other administrations have.

Disgraceful all around.

cite: quotes from NYT Editorial 8/25. opinion available at uscourts.gov (PDF).

eviscerating Miranda

The Supreme Court on Tuesday released its decision in Berghuis v. Thompkins, reversing the 6th Circuit and eviscerating the simple bright line rule of Miranda: The police must advise suspects of their rights; for responses to police questioning to be admissible in court, the suspects must make a knowing, intelligent and voluntary waiver of those rights. This 5-4 decision, penned by J. Kennedy, eviscerates the letter of the law — it’s bright-line-ness — as well as the spirit of it — eliminating the incentive for cops to mistreat suspects through browbeating and other forms of coercive behavior.

hat tip to michele, who was listening to npr and found out the opinion was out, when for some reason the NYT failed to cover it, at least in any meaningful way …

American Needle is out

American Needle v. NFL is out ….

libertarianism, state action, and private discrimination

Some great commentary coming out in the wake of Rand Paul’s floundering attempts to dodge explaining his philosophy. For instance, this from No More Mister Nice Blog:

Here’s the thing: segregation at lunch counters didn’t exist because individual privately owned businesses were determining for themselves that they would not serve black people. They relied on the local government to enforce this discrimination. Otherwise it would have been possible for non whites to sue white businesses for physical assault. Just because something isn’t statutory doesn’t mean that it isn’t taking place with government aid. A truly libertarian stance on the Civil Rights Act that wasn’t covertly conservative/racist would be to argue that the government must withdraw all legal aid, police help, and rights to sue for damages from discriminatory businesses *and then* leave the business free to discriminate. … The line between public and private property is guaranteed by government action and its something we all pay for and no private business has the right to take our money and then refuse service to us.

Rand Paul, weasel extraordinaire

Oh man, Rand Paul was on Rachel Maddow weaseling around a straight-up answer on his views of whether the federal government can prohibit discrimination in public accommodations.

A, I thought this guy was supposed to be glib and personable? This was one of the least smooth, least adept weaseling’s I’ve ever seen. Maybe that’s all just due to Rachel Maddow, who is a far more kick-ass journalist than most in terms of straight-up asking for a yes/no answer (and still not getting it).

B, wow, is he just stupid, or completely disingenuous, about the differing rationales that might justify (a) a ban on guns in establishments serving alcohol versus (b) a ban on racial discrimination?

C, again, is he just stupid? Or did he not realize that by picking on the ADA that he was also picking on the rationale underlying all civil rights laws? and that his ass would be busted on this issue? not because it’s “hypothetical” but because it’s real, live, and current — as even he must concede, since he’s picking on the ADA!

D, He’s seriously confused about law and regulation. Nobody has ever explained to this guy one of the fundamental rationales underlying the permissibility of banning some forms of private behavior — that state action would in fact otherwise be involved in enforcing those private behaviors. If someone is trespassing on your private property, you can call the police and get them to bust heads for you. That’s state action. You can sue the trespassers and get the courts involved. That’s also state action. So allowing “private businesses” to ban Black people or gay people necessarily involves state action, since the definition of a “civil right” involves the possibility of invoking the law to enforce the right. He’d like to hand that right not to individuals of color (or queer folks, or disabled folks) but instead to racist, homophobic, short-sighted business-people. Nice.

Along with other areas of law, Paul must also be unfamiliar with the long tradition, far predating the Civil Rights Act, enforcing different rules on hospitality and traveler businesses and such public accommodations. (eta: that’s common carriage, folks, although the wikipedia article is woefully inadequate on the history.)

E, Entirely unsurprisingly, he is also seriously confused about what “institutional racism” is, apparently thinking it is just state action.

F, I like how Paul pulls out the “It’s interesting…” line just before he weasels. I myself have a tendency to pronounce that things are “interesting” but not, I think, when I’m weaseling; more when I think there’s some contradiction or something a little surprising that piques my interest.

Anyway, I’ll be interested to see if Rand Paul & his libertarian policies really get him up to the U.S. Senate. How backwards-ass are my old neighbors in Kentucky? I guess we’ll find out come November.

take 5 minutes — Congressmember hilariously questioned on Constitution

Yesterday Rep. Alan Grayson questioned Rep. Paul Broun of Georgia on the meaning of Bills of Attainder, in regards to one of the anti-ACORN bills / amendments floating through Congress. Delightful. I’m linking to it through Glenn Greenwald’s blog, who brought it to my attention, because Greenwald is almost always worth reading.

Speechless

Just like Maddow after Jindal, I am rendered speechless by the DOJ memos released on Monday. Most were by my former Con Law professor; among the notable exceptions was the repudiation of these policies last October.

Holy Constitutional Law, Batman.

* DOJ – Office of Legal Counsel memos

* NYT (3/3)
* LAT (3/3)
* links to the memos with brief annotations at salon.com

* Jack Balkin @ Balkinization (3/3 7am)
* Scott Horton @ Harper’s (3/3 716am)
* Dan Froomkin @ the Washington Post (3/3 12:52 pm)
* Glenn Greenwald, 3/3

gay marriage & Equal Protection jurisprudence

Well, I loved the California same-sex marriage decision. Not just because it granted same-sex marriage, and not just because it said that the state needs to use the same term to refer to same-sex and opposite-sex unions, but because it significantly expanded Equal Protection jurisprudence.

For the non-law-geeks out there, federal and state constitutional guarantees of “equal protection” apply only to certain protected classes (“suspect classifications”), and now homosexuality, in California, gets the highest protection. Here’s how it works. When determining whether a law or action violates equal protection, a court will determine whether (a) a fundamental right is being violated, in which case the court will apply “strict scrutiny”; or (b) what classes of people are being treated differently. If the class is race, the court applies “strict scrutiny”, as it does with violations of fundamental rights. Gender gets “intermediate” scrutiny. The lowest level of scrutiny is a “rational basis review”. If the class has not been deemed a “discrete and insular minority” that has routinely and historically suffered discrimination, then the court applies a rational basis review — a much lower standard of review. Basically, a law that discriminates a class of people is okay under rational basis review, so long as the government has any rational basis for the action. Any law that creates multiple classes is subject, by default, to this review. For instance, “taxpayers” and “non-taxpayers”.

Courts have consistently declined to apply any heightened scrutiny to laws that discriminate on the basis of sexual orientation. Instead, they have applied “rational basis review with bite” — finding that some laws that discriminated against homosexuals did not even have a rational basis. For instance, Colorado’s Amendment 2 failed rational basis review. This is nice on the one hand, because it is an affirmative slap at the law, making it plain that really nasty discrimination is irrational. On the other hand, it makes it very hard to strike down such laws, because it doesn’t recognize the “class-ness” of homosexuality — the fact that gay people are treated as a class and routinely discriminated against.

So the California decision is the first to recognize that gay people are treated as a class and routinely discriminated against. Which means that, in California, we have a lot more protection now. And even if the right-wingers who are freaking out manage to define California’s marriage laws to exclude me and Michele, that won’t undo the strict scrutiny holding.

Ha.

linda greenhouse leaving NYT

Sadly, Linda Greenhouse is leaving the NYT. I hope she enjoys her retirement, and I hope the NYT manages to get another legal reporter who’s as good as Greenhouse. And, dare I say it, another high-profile woman on staff.

carl malamud, freeing the law

Go Carl Malamud, freeing the law! The same Carl Malamud that pushed SEC’s EDGAR database to be open has now published 1.8 million United States court opinions. The project was announced in November, and just three months later, it’s online.

The opinions are at Malamud’s main website, resource.org, and there is now a special website for the court opinions: http://bulk.resource.org/courts.gov/ .

More info:

ethical vs. legal

Randy Cohen’s NYT “The Ethicist” column took on “ethics” versus “legality” and got it right. The Ethicist, Feb. 24, 2008.

of penumbral emanations and scholarly trends

Speaking of penumbra yet again (1, 2) , I had previously blogged about a Circuit split on laws banning sex toys — it was Valentine’s Day, and I was feeling a bit whimsical, so I wished for a “penumbra” that would strike down stupid laws.

LawPundit “ha[s] an opinion” on my wish for a penumbra that covers “no stupid laws”; I thought it was pretty amusing & worth checking out.

LawPundit also annotated my use of the word “penumbra” with a link to google:define:penumbra. Unfortunately, I don’t think that quite captures the legal nuance. Legal scholar/lawyer-types know the reference, of course, but for those non-lawyers, “penumbra” is famous in Constitutional law as a reference to Griswold v. Connecticut. In Griswold, the Supreme Court overturned a Connecticut statute that made it a crime to buy contraceptives. Justice William O. Douglas, looking at the Constitutional guarantees of individual liberties as a whole, wrote that the statute violated the individual right to privacy, which could be found looking at the “penumbras” and “emanations” of Constitutional protections. The language is a little funny, but standing alone, or with Eisenstadt (which extended to unmarried people the right to buy contraception), this case, and the words “penumbra” and “emanations”, would provide simply a pleasant diversion to while away the afternoons in contemplation of rarely-used words in legal opinions. The concept of “penumbras” of a set of enumerated rights is not that bizarre, especially in light of the Ninth Amendment (which notes that “the enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people”) and the Tenth Amendment (which states clearly that powers not delegated to the US, nor prohibited to the States, “are reserved to the States respectively, or to the people”). These Amendments practically beg for penumbral analysis, and “privacy” (a concept theoretically defined and refined only in the last 125 years, but whose spirit animates much of the Constitutional protections) and “autonomy” (not considered one of the Constitutional “rights”, per se, but I keep wishing) are ripe concepts for that sort of analysis.

But conservatives have freaked out when the penumbras that protect privacy were extended to abortion in Roe v. Wade and to other matters of sexual privacy since then, and and now excoriate the very notion of penumbras. And emanations. (One could argue that the very essence of conservatism is a certain distaste for emanations.) So, “penumbras” the concept has acquired a certain air of disrepute in many legal circles, because even scholars who find it perfectly reasonable to examine the Constitution as a whole as well as in its discrete little parts, tend to back off a bit from Douglas’ sweeping penumbras and emanations, so successfully have right-wingers trashed those ideas. A damn shame, because the concept is perfectly reasonable, and it’s only the rabid dog opposition to abortion that has cast the shadow over Griswold and its penumbral emanations.

gender-specific names or go to jail

In Venezuela, the National Assembly is considering restricting all baby names to a total list of 100 names. This will eliminate the wide variety of inventive names that people assign, and will eliminate names that “generate doubt” about gender. NYT 9/5

Because there just aren’t enough laws dictating gender now.

good news in SCO case

The District Court of Utah has issued a decision and order finding that SCO does not own parts of Linux (D.Utah 2007/8/10). The lengthy litigation (funded in part with Microsoft’s investments in SCO) was the only serious shadow hanging over Linux, although the claims seemed bogus when examined closely. (I also liked this chart that geekly picked over the possible harms to linux.) It’s good to see Judge Dale Kimball come to the same conclusion.

The D. Court of Utah website was down yesterday and for some reason has labeled all SCO filings and orders as available only through PACER (a fee-based access service to public court filings). However, groklaw posted the decision.

technological mandates

I’ve written before about the ways in which criminalizing specific medical procedures — e.g., the “partial birth abortion act” — is a technological mandate. As a technological mandate, bans on specific abortion procedures are subject to all the same flaws, overreaches, underreaches, definitional problems, and obsolescence problems that mandates involving technological protection measures for copyrighted works are. As with people’s experiences with DRM, the best way to see the problems with these kinds of rules is to hear the stories of women who have had “partial birth abortions”. I encourage geek liberators to think about technological mandates more broadly.

political grandstanding: SO annoying

I really can’t stand it when politicians engage in cheap & sleazy grandstanding, knowing that what they’re doing is actually irrelevant. I’m speaking of Mitt Romney’s “lawsuit” to get the Mass. courts to step in to force the Mass. legislature to vote on an anti-same-sex-marriage amendment. [nyt 11/25]

Cheap & sleazy political grandstanding may be characterized by (a) someone making a gesture that appears potentially functional, but (b) is actually known to be ineffective, and (c) is undertaken for purposes of making a point.

I have no objection to Romney just making the frickin’ point, already. He could, and should, decry the legislature for not voting on the amendment. Sure, it’s tedious, hateful, and boring, but it’s to the point.

On the other hand, filing an obviously meritless lawsuit, rather than just making speeches, wastes government resources. I honestly think Romney and his co-litigants should be sanctioned for filing frivolous litigation.

Not only is this lawsuit legally frivolous, but it’s stupid: Even if he did force a vote, he doesn’t have the votes!

Thanksgiving weekend research questions: (1) Does Massachusetts have a political question doctrine to get this thing done with quickly; and (2) what are the possible sanctions for filing frivolous litigation.

Update 10 minutes later:

(more…)

france ipod/DRM legislation passed

(edited & corrected as I learn more)

According to MacObserver, the French legislation opening DRM (like that on apple’s ipod) has now passed into law. Presumably, this was supposed to open up Apple’s scheme to competitors so music purchased at iTunes store will play on other devices. According to consumer groups this portion was quite weakened; however, Forbes still seems critical so presumably there must be some consumer-friendly benefit left?

A few months ago, amendments had been introduced that would have made this the the first national law, so far as I’m aware, to aggressively target the anti-competitive / anti-consumer aspects of DRM. Unfortunately those were significantly watered down from the original proposal. The *rest* of the bill is pretty bad, largely anti-P2P and anti-circumvention provisions. The “fair use” pieces are interesting: France added in recognition of educational uses, disability, web caching, etc.; but then weakened all these, plus preexisting “fair use” type exceptions by importing the Berne three step test which says exceptions “cannot hamper the normal exploitation of the work … [nor] cause an undue loss to the legitimate interests of the author.”

In the meantime, Wikipedia has the most current info (Eng). Also see commentary on the bill at Ars Technica (Eng), BoingBoing (Eng), Stop DRM (Fr). I’m laboriously reading thru it the bill at http://www.assemblee-nationale.fr/12/ta/ta0596.asp (PDF) (Fr, of course).

marriage under attack in massachusetts

The Supreme Judicial Court of Massachusetts finally issued its ruling on out-of-state residents marrying in Massachusetts, upholding a previously moribund statute that had been dusted off especially for same-sex marriages. [nyt 3/30; Cote-Whiteacre v. Mass. Dept. of Public Health, SJC-09436 (Mass. SJC 2006/3/30)]

will right-wingers finally appreciate international law?

Right-wing homophobes have been freaking out over the Åke Green’s conviction under a Swedish hate speech code. They were particularly incensed because Green made his anti-gay comments from a church pulpit, and hailed the conviction as a sign of the treacherous path of hate speech codes. His conviction was reversed on appeal and then the Supreme Court of Sweden took it up. Now, interestingly, I found out that at the end of November, the Supreme Court also acquitted Green. Why? Because although he did violate the Swedish hate crime legislation, a sentence against him would likely violate the European Convention on Human Rights. So, right-wingers have to recognize … international law … for protecting human rights. I’m sure I’ll see that on the same blogs where right-wingers thank the ACLU.

(Caveat: I don’t read Swedish so my understanding of the Supreme Court opinion is based on this short synopsis by a Swedish attorney.)

alito on copyright, first amendment, cyberlaw

DRAFT: a work in progress; will be updated as I review more cases (or find typos)

Well, according to NPR, Judge Sam Alito from the Third Circuit is nominated. I’m sure that everyone will be all over his record on every conceivable issue in no time at all, but I’m looking at his copyright etc. for a few minutes just to see what’s out there.

copyrightprivacyfirst amendment & speechconsumer rights in telecomm, clickwrap, EULAs, antitrust, etc.other cyberlawalso interesting

copyright

I haven’t found much in the 3rd Circuit case law that suggests Alito has dealt with a lot of the most pressing copyright questions or the constitutional copyright questions, beyond originality. He has been good on originality, and in general he appears to be careful and thoughtful about copyright. So far, I’ve found:

Four opinions signed or written by Alito relate to originality: Alito wrote one opinion (Southco) and signed two (Southco en banc and R&B v. Needa (unpublished)) finding that part numbers lack sufficient originality for copyright protection. Alito also signed the troll doll opinion (Dam Things) which basically said that a derivative work needed to be carefully parsed for originality.

Two opinions on copyright registration technicalities. Alito signed a per curiam in Gallup v. Kenexa, and dissented in Raquel; the Raquel majority opinion was specifically criticized by the Copyright Office and then reversed by Supreme Court. In both instances Alito was critical of technical readings of registration requirements that stripped registrants of their copyright protections.

Two opinions on copyright preemption in Orson v. Miramax: Alito dissented in Orson I, and then signed the 3rd Cir en banc opinion, reversing Orson I, and holding that the a Pennsylvania film distribution statute was preempted by the Copyright Act.

Alito signed an unpublished copyright licensing opinion in Operating Systems Support v. Wang. I’ll have to read it very closely, but at a quick glance, it looks like a business-to-business software licensing agreement. Looks mostly like a close contractual reading of the terms of the various licensing agreements, without much analysis of the Copyright Act. As Seth Finkelstein pointed out on copyfight, business-to-business licensing cases don’t give a good sense of a judge’s opinion of consumer issues in contracting. But, Ideoblog looked at Alito’s contract cases, and said that

Alito has displayed a marked tendency to enforce contracts as written, specifically including choice of law/forum and arbitration provisions that are intended to mitigate litigation costs.

That could bode ill for any shrinkwrap cases that make it to the Supreme Court, including anti-reverse engineering clauses, anti-resale/First Sale clauses, or other consumer-unfriendly clauses.

copyright cases with brief cites & descriptions:

  • Alito wrote the first 3d Circuit opinion in Southco v. Kanebridge, 258 F.3d 148 (3rd Cir. 2001) holding that part numbers are not copyrightable. He also signed the en banc opinion that also held part numbers are not copyrightable. [I discussed Southco; William Patry did a detailed analysis; and madisonian.net promises analysis later today]

  • Gallup v. Kenexa Corp, 2005 WL 2271271 (3rd Cir. 2005) – A very recent per curiam opinion from Sept. 19, 2005. Reversing summary judgment to defendant Kenexa on a copyright infringement claim, because the District Court erred in declaring Gallup’s copyright registration invalid on a technical reading of the registration requirements.

  • Orson v. Miramax, 189 F.3d 377 (3rd Cir. 1999) – Alito joined the majority en banc holding that a Pennsylvania statute was preempted by Copyright Act. The statute (Pennsylvania Feature Motion Picture Fair Business Practices Law) restricted movie distributors use of exclusive first run licensing contracts. Alito dissented in the reversed 3rd Cir. ruling, 174 F.3d 377 (3rd Cir. 1999), which held that the Pennsylvania statute was not preempted.

  • Raquel v. Education Management Corp., 196 F.3d 171 (3rd Cir. 1999). Alito dissented in another copyright registration case. Taken with Gallup, Alito really doesn’t like technicalities getting in the way of copyrights (at 182):

    I believe that the majority’s decision elevates form over substance and works a forfeiture of a valid copyright because of a misstatement that the trial court had already labeled inadvertent.

    This is another instance in which Alito has a good record with the Supremes: Cert. was granted & judgment was vacated by 531 US 952 (2000) which simply said:

    Petition for writ of certiorari granted. Judgment vacated, and case remanded to the United States Court of Appeals for the Third Circuit for further consideration in light of the position asserted by the Solicitor General in his brief for the United States, as amicus curiae, filed September 20, 2000, and the Copyright Office’s July 5, 2000, Statement of Policy, 65 Fed.Reg. 41,508.

    Basically the Copyright Office wrote that the 3rd Cir had gotten it wrong (65 FR 41508-01):

    [T]he court appears to have misunderstood the Copyright Office’s longstanding published practices relating to the “nature-of-work” space.

  • Alito was on a (the?) troll doll court! Dam Things from Denmark a/k/a Troll Company ApSm v. Russ Berrie & Company, Inc., 290 F.3d 548 (3rd Cir. 2002). The troll dolls from the 60s fad had copyright restored by 104A. The court held that the copyright qualified for restoration and was not abandoned, but that the District court had not properly considered the 104A safe harbor for derivative works, or properly done the infringement analysis. After spanking the District Court for its “somewhat conclusory treatment of the issues” and for not carefully distinguishing which troll was which, the 3rd Cir. remanded “for further consideration in light of this opinion.” (at 552) The 3rd Cir. went on to strongly suggest there was infringement, then said that the District Court needed to closely evaluate each work for infringement AND for originality to see if the minor differences noted between the various trolls constituted sufficient originality to qualify for the derivative works exception to 104A.

  • Operating System Support, Inc. v. Wang Laboratories, Inc., 52 Fed.Appx. 160 (3rd Cir. 2002) (not published). Alito joined an unpublished copyright license opinion. At a quick glance, it looks like a business-to-business software licensing agreement, with some close contractual reading of the terms of the various licensing agreements, and little analysis of the Copyright Act. Business-to-business is not very informative for consumer rights by itself, but see above, where I mentioned Ideoblog’s analysis of Alito’s contract cases that do implicate consumer rights. (Thanks to Seth Finkelstein’s comment on copyfight for making it clear that I needed to be a bit more descriptive about why I was distinguishing the case as a business-to-business contracts.)

  • R&B, Inc. v. Needa Parts Mfg., Inc., 50 Fed.Appx. 519 (3rd Cir. 2002) (not published). Per curiam. Another parts number copyright case affirming District Court finding that part numbers not copyrightable and plaintiffs not likely to succeed on trademark infringement claim.

consumer rights & public interest in telecomm, shrinkwrap, etc.

The picture that emerges from looking broadly at consumer rights and interests is not a good one. Alito appears to be quite concerned with enforcing the letter of contracts and working through the nuances of textual interpretation. However, consumer interests are protected in contract law through broad policies that inform the interpretation of clauses and doctrines. If Alito is, as he appears to be, very concerned with the trees, he may miss the forests. [The NYT 11/5 had a good review of his business opinions, including antitrust law; also covering arbitration decisions, employee discrimination, environmental law and investor claims.]

  • Ooh, TCPA. ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d 513 (1998). Alito dissented from a holding that the TCPA (Telephone Consumer Protection Act) did not create right to bring action in federal court. A close reading of a negative implication case.

  • Ethical Esquire pulls together some of the antitrust commentary & suggests that Alito is not a fan of private enforcement of antitrust.
  • Operating System Support, Inc. v. Wang Laboratories, Inc., 52 Fed.Appx. 160 (3rd Cir. 2002) (not published). Analysis copied from above: Alito joined an unpublished copyright license opinion. At a quick glance, it looks like a business-to-business software licensing agreement, with some close contractual reading of the terms of the various licensing agreements, and little analysis of the Copyright Act. Business-to-business is not very informative for consumer rights by itself, but see above, where I mentioned Ideoblog’s analysis of Alito’s contract cases that do implicate consumer rights. (Thanks to Seth Finkelstein’s comment on copyfight for making it clear that I needed to be a bit more descriptive about why I was distinguishing the case as a business-to-business contracts.)

first amendment (speech clause)

Alito seems to be involved in a lot of First Amendment caselaw, both speech and establishment/free exercise. I imagine this will be reviewed closely elsewhere but I started going through some of decisions. [New World Man looked at Alito's First Amendment speech clause jurisprudence, as did the First Amendment Center. The FAC says

A preliminary examination of his First Amendment opinions suggests that Alito is: (1) quite protective of several categories of expression, including religious and commercial expression; (2) far less protective of First Amendment claims raised by prisoners; (3) guardedly protective of First Amendment rights in defamation cases, and (4) generally concerned about prior restraints on expression.

which seems about right to me. Prisoners' 1A rights are not significantly protected; that fits in with a general conservative law-and-order perspective.

  • Saxe v. State College Area School District, 240 F.3d 200 (3rd Cir. 2001). First Amendment; struck down school anti-harassment policy.

  • Tucker v. Fischbein, 237 F.3d 275 (3rd Cir. 2001) - a defamation case. Alito wrote opinion that "held that: (1) statements were capable of a defamatory meaning under Pennsylvania law; (2) fact issue existed as to whether attorney acted with actual malice with respect to statements made after he was served with amended complaint naming him as party in prior action; and (3) fact issue existed as to whether statements made by attorney to reporters, and published in articles, were false; but (4) magazines and reporters did not act with actual malice sufficient to support recovery."

  • Pitt News v. Pappert, 379 F.3d 96 (3rd Cir. 2004) - First Amendment

  • White v. Communication Workers of America, AFL-CIO Local 1300, 370 F.3d 346 (3rd Cir. 2004) - labor / First Amendment

  • Edwards v. California Univ of Pennsylvania, 156 F.3d 488 (3rd Cir. 1998) - Alito wrote court's opinion in an academic freedom case. Professor challenged public university's restrictions on curriculum & teaching material. This one should make the "academic bill of rights" people happy: the professor was teaching instructional methods and included as examples information about religion, censorship, etc. The university restricted his teaching methods, and he claimed retaliation; Alito held that the university "the University can make content-based decisions when shaping its curriculum" (at 492). This is interesting (at 493):

    In sum, we conclude: (1) that Professor Edwards does not have a First Amendment right to choose classroom materials and subjects in contravention of the University's dictates; (2) that Edwards failed to state a procedural due process liberty claim because he did not allege a deprivation of employment; and (3) that the district court properly dismissed Edwards's equal protection claim after Edwards's own counsel conceded that the complaint failed to adequately state such a claim. We find Edwards's remaining arguments on appeal to be without merit. Accordingly, we affirm. We emphasize that we only pass on the narrow legal issues presented to us. Nothing in our opinion should be read to mean that we condone all of the conduct of the University officials that was revealed at trial.

privacy, 4th amendment

Robert Gordon wrote a good piece for Slate laying out Alito's conservative jurisprudence with respect to Fourth Amendment search and seizure cases, and individual liberties cases generally. He found:

At least in my research, Lexis/Nexis revealed exactly one case in which Alito protected individual rights more vigorously than colleagues. That wasn't really an individual-rights case at all; it was the states' rights case in which Alito would have vacated the conviction for owning a machine gun. So, for example, Alito sat on a dozen panels in which judges disagreed regarding a citizen's Fourth Amendment rights. ... In each of those cases, Alito adopted the view most supportive of the government's position. Of course, caveats apply. All of the cases are more complicated than short summaries can capture. In any given case, Alito's position often seems reasonable; it is the accumulation of consistent results that surprises.

Alito prepared a report on privacy for a 1972 conference. [posted by EPIC; link from MT Law Blog 11/3]

  • US v. Williams, 124 F.3d 411 (3rd Cir. 1997) – Federal Wiretapping Statute, video surveillance

  • The corker is the Doe v. Groody case in which Alito thought it okay for a 10-year-old and her mother to be strip-searched. That will be well covered elsewhere, I suspect.

Other CyberLaw

CyberJurisdiction

  • Toys’R’Us, Inc. v. Step Two, S.A., 318 F.3d 446 (3rd Cir. 2003). Alito signed opinion reversing District Court’s refusal to grant limited jurisdictional discovery and granting dismissal for lack of personal jurisdiction. Question was whether Step Two’s websites were cybersquatting, trademark infringement, unfair competition, etc. Step Two is a Spanish company with web presence in the US. the court looked to Zippo‘s purposeful availment test; also cited ALS Scan (4th Cir) and Cybersell (9th Cir). The court noted that the evidence thus far didn’t look like it met the Zippo purposeful availment test but said the District Court had erred in not granting jurisdictional discovery, by focusing solely on the website and ignoring other Internet and non-Internet contacts. The court dismissed the contention that Step Two met New Jersey’s ‘express aiming’ test.

other IP & cyberlaw issues: trademark & unfair competition

  • Marshak v. Treadwell, 240 F.3d 184 (3rd Cir. 2001). Alito wrote opinion. Trademark & common law mark case.

  • Times Mirror v. Las Vegas Sports News, 212 F.3d 157 (3rd Cir. 2000)

  • A&H Sportswear, Inc. v. Victoria’s Secret Stores, Inc., 166 F.3d 197 (3rd Cir. 1999) – en banc trademark.

  • Iberia Foods Corp. v. Romeo, 150 F.3d 298 (3rd Cir. 1998) – trademark

other links & areas of interest

The individual liberties versus institutional rights (business, government) framework, laid out by Robert Gordon in Slate, appears to be a helpful one in examining Alito’s jurisprudence.

Ideoblog looks at Alito’s contract cases; New World Man provides an Alito primer which sums up and links to a variety of other analyses. New World Man also looked at First Amendment speech clause and religion. ThinkProgress does a press-release style rundown of some of Alito’s hot-button civil liberty cases.

SCotUS blog links to a lot of other blog commentary and also to the wikipedia entry which is unsurprisingly very current & detailed.

SCOTUSblog has some other notable cases, including a dissent on the abortion husband-consent statute from Casey. We’ll all be verrrry familiar with that one before long. The quick read I gave it said that Pennsylvania legislators could have reasonably thought that forcing a woman to discuss her medical options with her spouse was permissible because she might be mistaken about whether they could afford the baby or not … Paraphrased for heightened sarcasm.

news.com reviews some of the tech decisions & has some commentary from attorneys on copyright and electronic surveillance. On the electronic surveillance, the only discussion seems to support the notion that Alito is a law-and-order kind of guy; no surprise there. My take is that he is law & order, and will support police technologies generally. Purely private surveillance will be more interesting. On employment, I would bet he finds employer surveillance of employees permissible.

IPTA Blog Blawg Review nicely wraps up a lot of coverage of Alito.

Kurt Opsahl @ EFF Deep Links summarizes the cyberlaw / 1st Amendment / 4th Amendment privacy caselaw, and links to other coverage.

religion:

  • Child Evangelism Fellowship of NJ v. Stafford Tp. School Dist., 386 F.3d 514 (3rd Cir. 2004) – an establishment clause case.
  • Blackhawk v. Pennsylvania, 381 F.3d 202 (3rd Cir. 2004) – a free exercise clause
  • ACLU-NJ v. Township of Wall, 246 F.3d 258 (3rd Cir. 2001) – establishment (public display) case
  • ACLU-NJ ex rel. Lander v. Schundler, 168 F.3d 92 (3rd Cir. 1999) – establishment (public display) case
  • FOP Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3rd Cir 1999) – Alito wrote court’s opinion holding that refusal to grant religious exception to no-beard policy violated Sunni Muslim employees’ free exercise rights.

prisoners’ rights:

  • Reynolds v. Wagner, 128 F.3d 166 (3rd Cir. 1997) – charging inmates for medical care does not violate the 8th Amendment; failure to translate it into Spanish does not violate Spanish-speaking inmates’ rights