January 11, 2018

Article Highlights

Issue 4

Fourth Amendment: Byrd v. United States

By David L. Hudson, Jr.

Drivers of automobiles generally have a reasonable expectation of privacy in the cars they own and operate.Renting an automobile does not deprive one of that expectation of privacy. However, the question in this case is whether a driver of a rental car who is not an authorized driver pursuant to the rental contract has such an expectation of privacy. Does an unauthorized rental car driver Have a reasonable expectation of privacy in the vehicle?

 

Issue 3

First Amendment: Masterpiece Cakeshop v. Colorado Civil Rights Commission

By Steven D. Schwinn

Charlie Craig and David Mullins asked Jack C. Phillips, owner of Masterpiece Cakeshop outside of Denver, Colorado, and self-described “cake artist,” to design and create a cake for their wedding celebration. Phillips declined, saying that he objected to same-sex weddings, but that he would provide any other baked goods for the couple. Craig and Mullins brought a complaint under Colorado’s anti-discrimination law and won. Phillips argued that the law violated his rights to free speech and free exercise of religion under the First Amendment.

 

Issue 2

Criminal Procedure: Wilson v. Sellers

By Kathy Swedlow

After being convicted of murder and sentenced to die, Marion Wilson claimed that his trial lawyers were ineffective. A Georgia Superior Court considered and rejected those claims in a “reasoned opinion,” and the Georgia Supreme Court affirmed in a “summary order.” Now, on federal habeas corpus review, the federal courts must decide which “adjudication on the merits” to review: the Superior Court’s reasoned opinion or the Supreme Court’s summary order.

 

Issue 1

Election Law: Gill v. Whitford

By Steven D. Schwinn

The Wisconsin legislature redrew its state Assembly districts in the wake of the 2010 Census. The legislature took into account traditional redistricting criteria; it also considered politics. The resulting Assembly map was an extreme partisan gerrymander that resulted in significant overrepresentation for the majority party (as compared with the statewide vote) and effectively locked in majority-party control of the Assembly. Voters from 11 Assembly districts sued, arguing that the map violated the First and Fourteenth Amendments. Does the Constitution Prohibit a State from Engaging in Extreme Partisan Gerrymandering in Drawing Its Legislative Districts?

 

Issue 7

Religious Freedom: Trinity Lutheran Church of Columbia v. Comer

By Steven D. Schwinn

Trinity Lutheran Church of Columbia applied for a grant from the state of Missouri Scrap Tire Grant Program to resurface a playground at its affi liated preschool and daycare center. The state Department of Natural Resources (DNR) denied funding, however, only because Trinity Lutheran was a church. The DNR cited a state constitutional provision that prohibits the state from spending any state money, directly or indirectly, in aid of a religion.


Issue 6

Civil Rights: County of Los Angeles v. Mendez

By Steven D. Schwinn

Deputies Christopher Conley and Jennifer Pederson entered the Mendez residence (situated in the back portion of another person’s property) without a warrant and without first knocking and announcing their presence. Upon entering the residence, the deputies thought they saw Mr. Mendez pointing a rifl e at them. (In fact, Mr. Mendez was moving a BB gun as he got out of bed.) The deputies opened fire and seriously injured the Mendezes.


Issue 5

Civil Rights: Hernández v. Mesa

By Steven D. Schwinn

Sergio Hernández, a 15-year-old Mexican national, was playing with his friends in the concrete culvert that separates El Paso, Texas, from Juarez, Mexico. A U.S. border officer, Jesus Mesa, arrived on the scene and caught one of Hernández’s friends. Hernández, who was unarmed and not trying to gain entry into the United States, ran behind a bridge pillar on the Mexican side of the culvert. Mesa shot Hernández in the head as he peered out from behind the pillar, and Hernández died on the spot. Hernández’s parents sued Mesa for violating Hernández’s rights under the Fourth and Fifth Amendments.


Issue 4

First Amendment: Lee v. Tam

By Steven D. Schwinn

Simon Tam is the front man for an all-Asian American dance-rock band called The Slants. Tam formed the band in part to express and promote his views on discrimination against Asian Americans. As part of his effort, he named the band to reappropriate a traditionally derogatory term used to insult Asian Americans and sought to trademark the name. Does Section 2(a) of the Lanham Act, Which Prohibits the Patent and Trademark Offi ce from Registering a “Disparaging” Trademark, Violate the First Amendment?


Issue 3

Antitrust: Visa, Inc. v. Osborn and Visa, Inc. v. Stoumbos

By Barbara L. Jones

As consumers are painfully aware, it frequently costs money to get cash from an ATM. Those “access fees” are paid by banks or ATM operators in return for use of Internet networks operated by petitioners Visa, Inc. and MasterCard. Access fees are controlled by rules imposed by Visa and MasterCard as a condition to access their networks. These rules say that an ATM operator may not charge a fee that is lower than Visa/MasterCard, even if it uses a lower-cost network. It is alleged that Visa/MasterCard and other banks are part of a price-fixing conspiracy by implementing and enforcing these access fee rules. An antitrust conspiracy requires an agreement to fix prices and concerted activity in furtherance of that agreement. But December’s argument is not about whether a conspiracy exists but whether the pleadings of the respondents (petitioners below) adequately alleged a conspiracy under § 1 of the Sherman Act. The District Court said they did not. The Court of Appeals for the District of Columbia Circuit reversed, taking a position contrary to the Third, Fourth, and Ninth Circuits. 


Issue 2

Disability Law: Ivy v. Morath

By Leslie P. Francis

In Ivy v. Morath, five individual plaintiffs claim that the structure of Texas’s driver education program violates Title II of the Americans with Disabilities Act and § 504 of the Rehabilitation Act. Texas requires successful completion of driver education as a prerequisite for applicants under age 25. Texas approves and supervises private driving schools providing the education but does not specifically require accommodations for students with disabilities. The plaintiffs are deaf individuals who are otherwise eligible to obtain Texas driver’s licenses but were unable to find a program that would accommodate their disabilities.

Issue 1

Justiciability and Sovereign Immunity: Campbell-Ewald Co. v. Gomez

By Steven Schwinn

Campbell-Ewald Co. v. Gomez is important for three particular reasons. First, the Supreme Court will tell us whether and when an offer for full settlement can moot an individual case. Next, the Court will tell us whether a defendant’s offer of full settlement to the named plaintiff can moot a yet-to-be-certified class action. Finally, the Court will tell us whether the “derivative sovereign immunity” in Yearsley v. W.A. Ross Construction Co. extends beyond the narrow facts of that case, that is, beyond a government contractor who destroys land as part of a public-works project. 


Issue 2

Criminal Forfeiture: Luis v. United States

By Kimberly A. Jansen

In Luis v. United States, Luis argues that a criminal defendant’s Sixth Amendment right to counsel of choice is violated by a pretrial injunction that prohibits the defendant from using assets unconnected to any crime to retain private counsel.


Issue 3

Equal Protection: Fisher v. University of Texas at Austin

By Alan Raphael

Did the University of Texas violate the Equal Protection Clause when it considered the race of the applicants as a factor in its admissions decisions affecting 20 percent of the entering class? The Supreme Court is likely to issue its decision for Fisher v. University of Texas sometime in the spring, and it may become an issue in the 2016 presidential campaign.


Issue 4

Public Lands: Sturgeon v. Frost

By Richard H. Seamon

For many years, petitioner John Sturgeon used a small hovercraft to hunt moose in the wilds of Alaska. One day, National Park Service (NPS) officials told him that hovercrafts are not allowed on the navigable waters in Alaska’s national parks. Can NPS regulate navigable waters in Alaska’s national parks?


Issue 5

Patent Law: Halo Electronics v. Pulse Electronics & Stryker v. Zimmer

By Coby Nixon

In this consolidated case, the U.S. Supreme Court will consider the standard that district courts must apply when deciding whether to enhance patent damages under Section 284 of the Patent Act. 


Issue 6

Sixth Amendment: Betterman v. Montana

By David L. Hudson

Betterman v. Montana is significant because so many criminal defendants (more than 95 percent) pled guilty to criminal charges. In such an era, will the Court determine that there is a constitutional claim available to those who suffer inordinately long delays between the guilty plea and the sentencing?


Issue 7

Fourth Amendment: Birchfield v. North Dakota, Bernard v. Minnesota, and Beylund v. Levi 

By Steven Schwinn

Does the Fourth Amendment permit a state to penalize a person’s refusal to consent to a warrantless chemical test of his blood, breath, or urine to detect the presence of alcohol?

Issue 8

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<h2><a href="/content/aba-cms-dotorg/en/publications/preview_home/articles/14-15_issue8vol42_schwinn_separationofpowers.html"><u>The Separation of Powers Cases</u></a></h2>

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<p><b>By Steven Schwinn</b></p>

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<p>The Court ruled on three significant separation of powers cases in the 2014-2015 Term, handing the Obama administration victories in two of them and a defeat in one.&nbsp;The two cases that favor the President, Zivotofsky and King, each contain important restrictions on executive authority for future cases, while the one case that went against the President, Michigan v. EPA, probably represents only a minor road-bump and diversion on the Agency’s way to reissuing exactly the same conclusion.</p>