The Law School Magazine  ·  Winter 2013 : Features

All eyes on the court

By - Winter 2013
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Moritz professors are intensely watching the October 2012 term of the Supreme Court of the United States. There are major cases in constitutional law, business law, and copyright law pending this term, which will wrap up in June.

Amgen Inc. v. Connecticut Retirement Plans and Trust Funds

Professor Expert: Paul Rose

Overview: Amgen Inc. made misstatements to the Food and Drug Administration in relation to the safety of its products. The Connecticut Retirement Plan sued Amgen under a “fraud-on-the-market” theory, which posits that when securities trade in an efficient market, all public information, including statements to the FDA, are reflected in the price of the security. Amgen defended that plaintiffs in a class action must first prove reliance on a material representation before it can be certified.

Analysis: “This case is going to mean billions of dollars one way or another,” Rose said. “It is really going to affect the average class action suit for years and years. It affects everyone with a retirement investment in securities. I think it will come down in favor of Amgen, but I have mixed feelings on whether that is good policy. Congress could have addressed this issue in the past, but did not.”

Kirtsaeng v. John Wiley & Sons Inc.

Professor Expert: Guy A. Rub

Overview:  A student came to the United States from Thailand to study at Cornell University and then the University of Southern California. His family sent him textbooks from Thailand, where the cost is considerably less. He ended up importing and selling thousands of textbooks this way, for a nice profit. Under copyright law, if the books are considered to be manufactured in the U.S., the student, who lawfully bought them in Thailand, has the right to resell the books. If the books are considered not manufactured in the U.S., then copyright law, and the resale provision, do not apply; there has been no initial “first sale” in the U.S.; and the book manufacturer still controls the copyright for these books.

Analysis: “This case could have huge implications because just about every good in the U.S. is manufactured somewhere else,” Rub said. “The resale market is also an $18 billion-a-year market. This case is going to be close, and copyright cases do not tend to follow the traditional conservative-versus-liberal breakdown of the court.”

Florida v. Jardines; Florida v. Harris 

Professor Expert: Ric Simmons 

Overview: Both of these cases focus on narcotics detection dogs and the Fourth Amendment. In Jardines, after receiving a Crime Stoppers tip, police brought a trained dog to the front porch of a house, and the dog indicated a hit for marijuana. Based on that information, police obtained a search warrant and found marijuana plants growing in the house. The question presented is whether the police need a search warrant before using a drug dog to sniff a suspect’s home.  In Harris, an officer pulled over a car, and a drug-sniffing dog made a methamphetamine hit on the outside door handle, leading to a search of the interior of the car, where ingredients to make meth were found. The question in this case revolves around whether an alert by a dog is enough to justify a search, and, more specifically, what training the officers must show to ensure the alert is correct.

Analysis: “In a previous case, the court decided that the use of thermal imaging to see if marijuana was being grown in a house constituted a search. That precedent presents a real challenge for the government in the Jardines case. I think the government has a better argument in the Harris case,” Simmons said.

Fisher v. University of Texas at Austin 

Professor Expert: Sharon L. Davies, John C. Elam/Vorys Sater Professor of Law

Overview: The University of Texas uses a Top Ten Percent plan for the majority of its undergraduate admissions. Under this plan, students who graduate in the top 10 percent of their high school class are guaranteed admission. Approximately 75 percent of spots in the freshman class are filled through this system. Out-of-state and international students take up another portion. The remainder is filled with in-state students who did not graduate in the top 10 percent. In this category, race is one of a host of  factors considered. This case will decide if this system is constitutional under Grutter v. Bollinger, a 2003 case involving law school admissions at the University of Michigan.

Analysis: “The question here is whether the Constitution permits college admissions officers to consider the race of an applicant along with multiple other aspects of the applicant’s biography in the effort to create the type of diverse learning environment that benefits all students,” said Davies, who also serves as director of the Kirwan Institute for the Study of Race and Ethnicity. “The last time the Supreme Court took up this issue it said, ‘Yes, provided the process involved a “holistic” review of what each applicant might add to the student body, where race was only one of many other characteristics given weight, and that the institution set no predetermined “quota” of minority students it sought to enroll.’ The case thus provides not only the Supreme Court, but the nation, the opportunity to think about the value of student body diversity to the learning environments of selective universities like The Ohio State University.”

United States v. Windsor; Hollingsworth v. Perry

Professor Expert: Marc Spindelman, Isadore and Ida Topper Professor of Law

Overview: Collectively, these are the gay marriage cases pending before the court. Windsor focuses on the constitutionality of the Defense of Marriage Act and what level of scrutiny should apply to laws that discriminate on sexual orientation. Perry will review the constitutionality of California’s Proposition 8, which brought a halt to gay marriage in the state, under the Equal Protection Clause of the Fourteenth Amendment.

Analysis: “If same-sex marriage ultimately prevails at the Supreme Court in Perry, it’s fair to expect a decision that follows the basic pattern the Ninth Circuit set when striking Proposition 8 down: a narrowly-crafted decision emphasizing the uniqueness of Proposition 8, and so not directly addressing the constitutionality of other states’ marriage bans. But watch for signs of broader rulings to come,” Spindelman said. “Some observers certainly think the court chose Windsor over other DOMA cases because Windsor puts the federal courts too far out ahead of the rest of the country in deciding that discrimination based on sexual orientation is as bad as discrimination based on gender and nearly as bad as discrimination based on race. If the Supreme Court affirms Windsor, it would presumably bring an end not only to the federal Defense of Marriage Act, but also state-level bans on same-sex marriage as well as other forms of anti-gay discrimination under law. This may ultimately be what the U.S. Constitution requires of the federal government and all the states, but the Second Circuit’s decision that today is that day shows just how far New York is from, say, Ohio and Missouri – socially, culturally, and legally.”

Shelby County v. Holder 

Professor Expert: Christopher J. Walker 

Overview: The Shelby County case challenges Congress’s authority to reauthorize Section 5 of the Voting Rights Act in 2006 for another 20 years.  Section 5, one of the most important provisions of the Voting Rights Act of 1965, requires nine states and parts of seven others to obtain official preclearance from the federal government before putting into effect any change in election laws or procedures.  While the Act and Section 5 have been upheld several times in the past, in a decision three years ago the court again avoided striking down Section 5 but strongly questioned the constitutionality of Congress’s decision to continue to use the pre-existing coverage formula to identify the states and subdivisions required to seek preclearance – a coverage formula that has remained largely unchanged since the Act was originally passed in 1965.

Analysis:Shelby County could certainly be one of the blockbuster cases of the term,” Walker said. “The Voting Rights Act is an iconic law in American history, and Section 5 has played a critical role in helping to eradicate voting discrimination based on race.  The court dodged the constitutional issue several years ago in Northwest Austin, so it may try to do so again.  But the district court upheld the law, the court of appeals upheld the law, and the Supreme Court usually doesn’t decide to hear a case just to say everything is fine with the lower courts’ decisions.”

Alleyne v. United States

Professor Expert: Douglas A. Berman, Robert J. Watkins/Procter & Gamble Professor of Law

Overview: This case will take a look at the precedent the court estab-lished in Harris v. United States, which came out two years after the landmark sentencing case, Apprendi v. New Jersey. In Apprendi, the court concluded juries, not judges, must find the facts that could raise a sentence beyond the maximum set fourth in a statute. In Harris and the current case, the question is whether a judge can find a fact that would raise the minimum sentence required by statute. In Harris, the court said a judge could, but it appears it may be willing to overturn that decision. This circumstance can often arise in federal cases  when a defendant is convicted of a drug  crime and, during sentencing, the question of whether the defendant brandished a gun, a fact that would increase the applicable minimum sentence.

Analysis: “ This case could be more important than all of the other cases combined,” Berman said. “This isn’t just about sentencing. This is really a case about stare decisis. The court may completely overturn a previous
de-cision in this case. If you have dreams of overturning Roe, Citizens United, Brown, or some other landmark decision, watch this case closely. This may be the case that sets a new standard stare decisis.”

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