Professor Abraham and the Justices

Marcia Coyle had the idea for this drawing of UVa professor Henry J. Abraham and the eight chief justices who served during his lifetime, so far (Abraham is 92).

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Between Scylla and Charybdis

I neglected to post sketches from the March 31 arguments in Alice Corporation v. CLS Bank International. Here they are, better late than never.

Each day CLS Bank does about $5 trillion in transactions and uses a computer program to insure that everything balances out at the end of the day. Alice Corporation has a patent on an application that does the same thing by creating shadow accounts for all parties and not allowing transactions to go through unless all credits and debits balance out above zero.

The Court has previously held that natural processes (Mayo) and abstract ideas (Bilski) are not patentable. Is Alice Corporation’s patent really just the idea of solvency applied by a computer to balance the books?

Justice Breyer’s pharaohic hypothetical put it this way: “I mean, imagine King Tut sitting in front of the pyramid where all his gold is stored, and he has the habit of giving chits away.  Good for the gold, which is given at the end of the day.  And he hires a man with an abacus, and when the abacus keeping track sees that he’s given away more gold than he has in storage, he says, stop.”

On the other hand, software developers won’t have much incentive if their computer programs are unpatentable.

Again, Justice Breyer, “. . . there are a number of suggestions as to how to go between Scylla and Charybdis.  . . . I need to know what in your opinion is the best way of sailing between these two serious harms.”

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Goodbye Campaign Finance Reform

In an opinion that came as little surprise to anyone the Supreme Court today in McCutcheon v. FEC did away with aggregate limits on individual campaign contributions. Although the cap remains on individual contributions to a candidate, wealthy contributors are now free to give to as many candidates or political organizations as they please.

Dissenting, Justice Breyer responded to Chief Justice Roberts’ assertion that the possibility of circumventing the remaining base contribution limits are purely hypothetical and remote. “We react to (that claim) rather like Oscar Wilde reacted to Dickens’ depiction of the death of Little Nell. ‘One would have to have a heart of stone,’ said Wilde, ‘to read it without laughing.’”

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Hobby Lobby and Conestoga Wood Specialities

Supporters lined up behind the owners of two family owned businesses, Anthony Hahn, second from right, and Dave Green, far right, on the lower level of the Supreme Court building this morning. They were waiting to hear arguments in two cases concerning Obamacare’s required contraceptive coverage by for-profit employers. Hobby Lobby and Conestoga Wood Specialities both embrace Christian principles that cause them to object to forms of contraception that they believe are tantamount to abortion.

It’s been a long day of lively arguments, lots of drawings, and even a little bit of snow, so forgive me if I forgo further comments and simply post the day’s sketches. There are links at the bottom to reporting on the arguments.

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bSC140325_Kagan

Lyle Denniston’s argument recap here.

NYT story here.

WaPo story here.

And a must-read from Dahlia Lithwick here.

 

 

 

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Posted in Arguments, Supreme Court

Fraud-On-The-Market Theory, What’s That?

This morning before the Supreme Court convened to hear a securities fraud case I spotted lawyer David Boies, who would be arguing for the class action plaintiffs (here the respondents), standing by himself as if in reverie, gazing at the statue of Justice John Marshall. Unfortunately Tom Goldstein, another veteran of the Court, sketchbombed my drawing under the pretense of having a chat with Boies.

The argument itself, Halliburton v. Erica P. John Fund, was way over my head. Fraud-on-the-market theory? Price impact v. market efficiency ? Better that I leave it alone and just post my sketches.

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Posted in Arguments, Supreme Court

Lethal Force and the High-Speed Chase

Frigid temperatures this morning means that, no, I didn’t sketch that Carolina wren al fresco outside the Supreme Court. A friend took a picture of it yesterday in Ellicott City which I stole for this composition. So, sue me.

Do police officers who fire shots at a vehicle during a high-speed chase violate the Fourth Amendment by using “unreasonable” force?  Most of the Justices seemed not to think so, as long as the chase itself poses a danger.

Chief Justice Roberts: “is there any situation in which it would violate clearly established constitutional law for the police to use lethal force?”

Michael Mosley: “I hate to use television as an example, but perhaps the way the white Ford Bronco fled in the early 90′s that everybody saw on TV.”

The lawyer arguing for the daughter of the driver slain in the volley of shots fired by the police was peppered with questions from the bench, often incredulous or sarcastic.

Justice Scalia: “Okay, . . . You think it is clearly established law that you cannot shoot to kill a driver whose car is moving? Is that it?” 

Gary K. Smith: “If . . . “

Scalia: “Is that the principle you say is clearly established?”

Smith: “If doing so . . . “

Scalia: “My goodness, they do it all the time. You watch the movies . . . it happens all the time. Are these movies unrealistic? You cannot shoot to kill somebody in a moving car?”

Smith: “In a . . . “

Scalia: “And that is not just your view. It is, you say, clearly established law?”

The case is Plumhoff v. Rickard

 

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A Little Excitement at the Staid Court

SCOTUS in Snow
After a slippery sloppy commute on a snowy morning a couple of quiet hours listening to patent law arguments seemed like a good opportunity for a snooze. I was sketching on auto-pilot as the first argument, Octane Fitness v. Icon Health & Fitness, was concluding when a loud voice coming from the back of the courtroom startled me out of my somnolence. “Corporations are not people, money is speech. Overturn Citizens United.” shouted a young man before Court security officers whisked him away.

He was later identified as Noah Newkirk and charged with making “a harangue or oration . . . in the Supreme Court Building.” I think this may be him. The young man, it turns out, is Noah Kia Newkirk, a member of a group called 99Rise.org whose aim is to “get big money out of American politics.” It appears his outburst was in part staged for a video camera that was smuggled into the courtroom. The video shows that this is not the first time this group has captured the Court on camera. Footage at the beginning is from McCutcheon v. FEC, a campaign Finance case argued in October and yet to be decided. It also turns out that the footage at the beginning, though labeled McCutcheon v. FEC, is actually from arguments in  Burt v. Titlow, another case argued the same day.

I initially sketched him with a moustache and goatee, but on reflection I think he just had a heavy five o’clock shadow. It all happened very fast and I am not possessed of a photographic memory. Not a very good drawing.

Anyway, here are a couple sketches from the argument that I managed to finish. I think they are more successful.

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Baseball Bats and Rotten Tomatoes

The lawyer for a home mortgage loan fraudfeasor (I learned a new word today) had a number of colorful hypotheticals tossed at him by the Justices as they tackled a question of restitution. Here’s what he had to juggle, starting with Justice Breyer who is the Talmudic scholar of hypotheticals:

Breyer: “Mrs. Smith, I have a bridge I’d like to sell you.”. . “But I also gave her my valuable Babe Ruth bat.”

Alito: “Suppose what the person who perpetrated the fraud returns is a truckload of tomatoes . . . and by the time the tomatoes can be sold they’re all rotten.”

Scalia: “You’re really confusing me. I . . I . .both the baseball bat and the truckload of tomatoes?”

The case is Robers v. United States

 

 

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Justices Hear Arguments On EPA’s “Tailoring Rule”

Even before the Justices took the bench for what might have, mistakenly, seemed like a blockbuster argument on global warming – there was even a demonstrator in polar bear costume on the plaza – the spotlight shifted to the Court’s decision not to hear two NRA challenges to gun regulation laws.

Today’s case, actually six different lawsuits rolled into one, was not about the Environmental Protection Agency‘s power to regulate greenhouse gases. That was settled seven years ago in Massachusetts v. EPA. The arguments heard by the Justices today focused on the EPA’s “tailoring rule” under which the agency adjusts, or tailors, the threshold at which certain pollutants must be regulated.

Under the Clean Air Act limits were established for stationary sources of pollution such as factories and refineries, but the limits for those traditional pollutants like sulfur and nitrous oxides, 100-250 tons per year, are much too low for greenhouse gases which are emitted in much higher volumes.

It is interesting that the usually pro-regulation side supporting the EPA was today arguing for less regulation, saying that applying the limits, without tailoring, would mean regulating every mom & pop factory and overburden an already overburdened bureaucracy. The EPA’s opponents, on the other hand, hope that overturning the rule and expanding regulation to include small sources will cause a backlash against the agency.

Lyle Denniston’s recap of the arguments in Utility Air Regulatory Group v. EPA is here.

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“Don We Now Our Gay Apparel . . . “

. . said Justice Scalia as he delivered the opinion in Sandifer v. U.S. Steel, explaining the use in this case of the somewhat archaic terms “don” and “doff”, as in “a well bred gentleman still doffs his hat to a lady”.In this case the union had an agreement with U.S. Steel that “time spent in changing clothes at the beginning or end of each workday” would not be compensated. The petitioners argued that they weren’t changing clothes, but donning and doffing protective gear. The Court did not go as far as U.S. Steel wanted and say “everything that a person wears” is clothing, but everything else is “de minims non curate lex”*.

* Trans.: the law does not take account of trifles

There once was a lawyer named Rex
With minuscule organs of sex.
        Arraigned for exposure,
        He maintained with composure,
"De minimis non curat lex."

 

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