Calling All Commentary on TWC and Charter Merger

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Just yesterday, the Justice Department and Federal Communications Commission moved to allow the merger of Time Warner Cable and Charter, a $78 billion dollar deal that would have far-ranging effects on American telecommunications. The company created by this combination would be known as "New Charter," and would have unprecedented control over the nation's media.

The lawsuit, settled the same day it was filed, alleged that the merger would hurt online video distributors, or OVDs, that rely on their ability to obtain licensing for television materials. The proposed settlement precludes New Charter from "entering into or enforcing any agreement with a programmer that forbids, limits or creates incentives to limit the programmer's provision of content to one or more OVDs," and also disallows usage-based data caps. This serves to protect streaming apps and services dependent on access to video or music content.

However, even though the settlement protects OVDs, it does little to protect the general population from the anticompetitive environment this combination would create. For example, it does not address the effects New Charter's market dominance might have on over-the-air broadcast television or consumer Internet use. This omission could lead to the decreased availability of free, quality programming - but we can work to correct that oversight.

A 60-day public comment period will soon commence as the settlement is published in the Federal Register, and we at PlanetGreen encourage our readers to voice their concerns about the merger. Our opinions do matter, and can effectively preserve the airwaves as a public and free resource. All submitted comments will be posted online and made available to the U.S. District Court considering the settlement, giving regulators and the Court the added perspective of a public that will be deeply affected by their decisions.
Just yesterday, the Supreme Court denied review in Brooker v. Alabama, the Eighth Amendment case of a seventy-six year old man condemned under Alabama's "three strikes" law to life in prison on nonviolent charges. Despite compelling briefs from the petitioners and the obvious inequity of the sentencing practices, the Court chose continued inaction over a much-needed second look at our outdated, largely ineffective justice system.

This is not the first time that our nation's highest tribunal has declined to address the problem and consider all the relevant constitutional issues. However, it is still highly surprising that it would avoid the issue amid both the ongoing national debate over mandatory minimums and the changing political reality of criminal justice reform.

$150 = 50 Years


In November of 1995, an Army veteran named Leandro Andrade walked into a California Kmart store and left with five children's videotapes, which he had not paid for. Fourteen days later, he repeated the performance at another Kmart location, and was charged with shoplifting nine tapes worth, in all, roughly one hundred and fifty-three dollars. The theft of Batman and Casper is not usually worthy of much mention in the important debate over the criminal justice system, and it should never have been a major issue. After all, petty theft is a misdemeanor that usually carries only six months in jail - not two consecutive terms of twenty-five years to life, which is what Andrade got.

But he had two prior convictions on his record, and therefore was a casualty of the "three strikes" laws. These statutes impose mandatory minimum penalties on those already convicted of two felonies, no matter how trivial the third infraction is. Their proponents argue that they effectively deter habitual offenders and increase accountability for crime; but, in reality, they often result in blatantly disproportionate sentences that hinder the goal of eventually reintegrating transgressors into society.

In a later challenge, the Ninth Circuit granted relief to Andrade on the grounds that his sentence was "cruel and unusual punishment," and the Supreme Court subsequently agreed to hear the case. It appeared to be a clear-cut example of inordinate, unrealistic penal practices, and the lower court's decision was almost universally expected to stand. However, the Court chose to reverse, reasoning per Justice O'Connor that because a possibility of parole still existed (in 2046, when Andrade would be eighty-seven years old), the sentence was not "contrary to, or an unreasonable application of, clearly established Federal law" (28 U.S.C. §2254). By invoking an ordinary statute to avoid addressing a constitutional question, the Court narrowed its own ability to grant relief further, resulting in the untrammeled long-term incarceration of relatively petty offenders across the country.

However, even though the Court may have rejected the Eighth Amendment argument against mandatory sentencing, the Constitution and common-law decisions interpreting it still indicate the illegality of the practice.

Separation of Powers

Despite the ruling in Lockyer v. Andrade, the courts have always recognized that the ability of a judge to tailor the law to the facts of a case is essential to substantive justice. As Justice Holmes famously observed: "The life of the law has not been logic; it has been experience... and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics" (The Common Law, 1881). Justice Frankfurter seconded this from the bench when he called due process "the least frozen concept of our law -- the least confined to history and the most absorptive of powerful social standards of a progressive society" (Griffin v. Illinois, 351 U.S. 20-21 (1956)). Now, though, the legislature encroaches on that judicial function through its ill-considered mandatory minimum laws. Not only does this interfere with the historical procedure of the courts, but it violates the constitutional system of checks and balances.

The 1965 case of United States v. Cox concerned a U.S. Attorney threatened with contempt of court after he refused to sign an indictment, even though he was acting under the direction of then-Attorney General Nicholas Katzenbach. In a landmark decision, the Fifth Circuit Court of Appeals decided that the prosecutor was a member of the executive branch, and therefore that the contempt order unlawfully infringed upon the separation of powers (342 F.2d 167). The mandatory minimum laws have a similar effect, forcing judges to impose heavy penalties regardless of the dictates of individualized justice.

As Blackstone once noted in his Commentaries, "In all tyrannical governments the supreme magistracy, or the right both of making and of enforcing the laws, is vested in one and the same man, or one and the same body of men; and wherever these two powers are united together, there can be no public liberty." 1 B.C. 146. In today's system of compulsory inclemency, it appears that this basic tenet has been forgotten.

"Making One Year Count" for Don Blankenship

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Blankenship.jpgJust yesterday, the "Making One Year Count" movement made its social media debut. This letter-writing campaign addresses the blatant miscarriage of justice in the Don Blankenship mine explosion trial. The initiative's goal is to deliver three hundred and sixty-five letters to Blankenship during his year in prison, showing him that though the courts may have been lenient, citizens have neither forgotten the lives lost in the tragedy nor the injuries caused daily by the coal industry.

Today, I made my contribution to this endeavor:


Dear Mr. Blankenship,

Whatever words I can write on this page feel pitifully insufficient, to say the least, but in honor of those your negligence killed, those still alive but suffering daily from the hurting you caused, and those living in a country pained by pollution and the injurious practices of your industry as a whole, I have to try.  It's the most I can do to send you a letter like this one, and hope that you get three hundred and sixty-four more reminders of what justice truly is and should have been in your case. I am going to start by reminding you of something else: that if things had been different, and you had been one of the unlucky ones, compelled by the basic necessity to provide for oneself to descend into your Tartarean "workplaces," you probably would have received four hundred and thirty-five times what you did get (fifteen years, the penalty for manslaughter, multiplied by twenty-nine counts).

But even that isn't a victory, except in the hollowest sense. And maybe that's enough for you, but somehow I doubt it. Because even after you do return to the outside world, you will sometimes unavoidably think back on everything that happened. The last time somebody tried to caution you, and you brushed them off and went back to business as usual. The explosion you could have prevented at marginal cost to your company. The twenty-nine people whose dreams of a better life were powerful enough to send them into your mines, whose dreams will now never be realized. The families and friends of the killed, everyone who had grown accustomed to having them around. Somehow, I just don't believe you'll always be able to smirk at all that.

When I was reading about your trial, it called to mind another case that took place in Idaho over a hundred years ago. You may know about it. It was the trial of William "Big Bill" Haywood, a labor leader of the Western Federation of Miners. He was unfairly framed by the mining interests with the murder of Frank Steunenberg, and represented against those charges by Clarence Darrow. Anyway, the passage of Darrow's summation that reminded me of you goes like this:

"But, gentlemen, he and his mother, his wife and his children are not my chief concern in this case. If you should decree that he must die, ten thousand men will work down in the mines to send a portion of the proceeds of their labor to take care of that widow and those orphan children, and a million people throughout the length and the breadth of the civilized world will send their messages of kindness and good cheer to comfort them in their bereavement. It is not for them I plead.

Other men have died, other men have died in the same cause in which Bill Haywood has risked his life, men strong with devotion, men who love liberty, men who love their fellow men have raised their voices in defense of the poor, in defense of justice, have made their good fight and have met death on the scaffold, on the rack, in the flame and they will meet it again until the world grows old and gray. Bill Haywood is no better than the rest. He can die if die he needs, he can die if this jury decrees it; but, oh, gentlemen, don't think for a moment that if you hang him you will crucify the labor movement of the world.

Don't think that you will kill the hopes and the aspirations and the desires of the weak and the poor, you men, unless you people who are anxious for this blood--are you so blind as to believe that liberty will die when he is dead? Do you think there are no brave hearts and no other strong arms, no other devoted souls who will risk their life in that great cause which has demanded martyrs in every age of this world? There are others, and these others will come to take his place, will come to carry the banner where he could not carry it."

This year will soon be through, and this tragic story will be consigned to the casebooks alongside Haywood's. But long after both of us are forgotten, that century-old devotion will still be there, because you can't kill solidarity. You should know that better than I do, actually. I've never tried.

Before you can finally put me down and go back to what you were doing, I want to say one thing more. I believe in justice, but I am not the vengeful sort. I never have wanted to see a man killed, whether by a misguided criminal or by the state. That's the chief irony: for all the technical defenses you concocted and resources you invested in the attempt to thwart a single prosecution, you cannot say that for yourself. Those miners' only crime was in being poor, having to make a living for themselves from the earth with their own hands, and yet in your Upper Big Branch that was a capital offense.

Think about that.

Sincerely,
Katrianna Brisack

Our earlier coverage of the case, both a historical perspective on the issues and an announcement of the verdict, can be found here.

Update: SC Split over Labor, 4-4

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Just this Tuesday, the Supreme Court handed down a one-page per curiam decision in the controversial case Friedrichs v. California Teachers Ass'n, (14-915), which concerned whether or not teachers could be compelled to subsidize a union they had not joined. The Court effectively ruled that they could, simply by failing to muster a fifth vote for reversal.

This ruling sets no lasting precedent, but it is unlikely that the Court will overturn both Abood v. Detroit Board of Education and this opinion in the future. President Obama's current nominee to fill the vacant seat, Judge Merrick Garland, has frequently sided with organized labor in the lower courts, and will probably join the liberal bloc in a possible rehearing, denying Friedrichs' claim more permanently. Even if this specific case, or another presenting a similar question, is reheard before the Court changes, it is unlikely to have a different result.

Though this may appear to be a triumph of the right to collective bargaining, in reality it weakens the protection of individual opinions that is essential to the preservation of our constitutional framework. As the Court observed more than seventy years ago, "It seems trite but necessary to say that the First Amendment was designed to avoid these ends by avoiding these beginnings... We set up government by consent of the governed, and the Bill of Rights denies to those in power any legal opportunity to coerce that consent" West Virginia v. Barnette, 319 U.S. 624 (1943). That statement seems equally applicable now.

Our earlier "On Certiorari" discussion of this case with Michael Carvin, petitioner's lawyer

Enjoin Yourself! (From Using Apple Gadgets)

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"Apple core!"

"Baltimore!"

"Who's your friend?"

"Some criminal insurgent guerrillas. Why do you ask?"


Just today, Apple unveiled the newest version of their popular smartphone, called the iPhone SE. Not much is different about the SE model - it is merely a smaller version of the current iPhone. It uses the same microprocessor, essentially the same camera, and roughly the same features.

It also has the same embattled encryption technology, and chances are very good the date of its release - one day before the first major hearing in the Syed Farook case - is an intentional attempt to sidestep our government and continue marketing devices which pose a significant risk to public safety.

Searches of personal effects conducted without a warrant, including searches of smartphones, are prohibited by the Fourth Amendment to our Constitution. See Mapp v. Ohio, 367 U.S. 643, and Katz v. United States389 U.S. 347. However, the Supreme Court has never ruled that evidence procured with such a warrant is invalid under the exclusionary rule, and resisting such an order when lawfully procured is traditionally referred to not as a stand for liberty, but an instance of obstruction of justice.

Apple is deliberately misconstruing our founding charter in its protracted battle with the DOJ and the FBI, attempting to siphon profit and publicity from a national tragedy. Though this behavior from a billion-dollar corporation is nothing new, the ambivalence towards and even admiration of this conduct shown by those who continue to purchase the company's overpriced products is surprising.

Therefore, we at PlanetGreen ask you to join us in refraining from the use of all technologies created or marketed by Apple. Though the company definitely won't have a patriotic epiphany its profits keep skyrocketing, if we band together we can prove that Democratic candidate Al Smith was right when he declared in 1928: "The best way to kill anything un-American is to drag it out into the open, because anything un-American cannot live in the sunlight."

UPDATE - Even though our government has been successful in unlocking Farook's phone without enlisting Apple's help, the boycott is still on, at least until the company recognizes that our national security is more important than protecting a criminal's so-called "right" that has never been recognized as such.
herblockcp.jpgJust yesterday, President Obama nominated appeals judge Merrick Garland, currently of the D.C. Circuit Court of Appeals, to replace the late Antonin Scalia on the Supreme Court. This nomination, made while the Court was on break, immediately rekindled debate over whether a lame-duck President should be allowed to appoint candidates of his choice to the Court. Ironically, though, while Judge Garland has been publicly cast as an unpredictable centrist, it is the GOP's politicians who have done the majority of the swing-voting in this situation: first supporting him and praising his qualifications for years, then vowing to keep him off this country's highest bench at all costs.

However, in refusing to even consider Judge Garland, these conservatives have failed to realize that they could be worsening their own party's position. With each new contest, it seems increasingly unavoidable that Hillary Clinton will be the Democratic nominee. For the Republicans, Donald Trump is likely unstoppable, having already aggregated 673 out of 1,237 necessary delegates (that's a 119-delegate lead over both his opponents combined). In all probability, however, the billionaire insurgent will perform poorly in the general election, forcing the hard-liners to confirm a potential Justice named by a Democrat. And if they succeed in compelling Obama to withdraw Garland's name, they could face an even more liberal appointee.

Another misconception about this development is that Democrats should be unhappy with the choice simply because he was not the farthest-left candidate on the short list. To be sure, his experience as a federal prosecutor in many high-profile domestic terrorism cases may have helped to shape his views on criminal procedure, which would probably be solidly to the right of the Court's current liberal wing. However, his record on the D.C. Circuit still evinces a more progressive viewpoint on those issues than that of Sri Srinivasan, who has never overturned a single criminal conviction.

In labor law cases, Judge Garland has consistently upheld the NLRB's decisions and safeguarded the liberties of workers and the right to collective bargaining. His environmental record shows a similar deference to administrative rulemaking, even when taking these stands entails creating disparities between circuits or even weakening the effect of a deleterious Supreme Court decision. This regard for substantial justice could only benefit the Court and the nation.

In a final note, the Republicans regularly attribute to their own party a profound concern about governmental overreach and a deep belief in the separation of powers, but their refusal to perform a necessary part of the political process belies their rhetoric. In this polarized climate, both parties would do well to heed Justice Frankfurter's comments on the comparatively minimal political gridlock existing in 1952: "It would stultify one's faith in our people to entertain even a momentary fear that the patriotism and the wisdom of the President and the Congress, as well as the long view of the immediate parties in interest, will not find ready accommodation for differences on matters which, however close to their concern and however intrinsically important, are overshadowed by the awesome issues which confront the world." (Youngstown v. Sawyer, 343 U.S. 579). Or they could start by simply acknowledging that, as Justice Jackson (who once occupied the now-vacant S.C. seat) once said, "Process which is a mere gesture is not due process." (Mullane v. Hanover, 339 U.S. 306).

Boycott Food: Progressive Cookies

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Mondelez.jpgWe at PlanetGreen thoroughly understand the love-hate relationship between liberals and boycotts. On the one hand, they're empowering illustrations of how a little solidarity truly can go a long way. But on the other, even the most dedicated activists still cannot escape those basic human weaknesses that so often hamper attempts to rise above corporate wrongdoing, like the need to stay on a budget, the search for that perfect Christmas-y touch, or the craving for cookies.

Fortunately, this time, the quest to steer clear of Oreos and the other products of grocery conglomerate Mondelez International does not have to result in sugar deprivation, thanks to Robert and Belle La Follette.

LaFollette 1.jpgIn 1909, the Wisconsin Senator founded an eponymous magazine which primarily featured articles by many leading liberals of the day, such as Lincoln Steffens, Ida Tarbell, and Louis Brandeis, on subjects ranging from the Red Scare to the emerging Civil Rights Movement. Senator Bob, in the introduction to the first issue, set forth the mission of his publication:

"In the course of every attempt to establish or develop free government, a struggle between Special Privilege and Equal Rights is inevitable. The battle is just on. It is young yet. It will be the longest and hardest ever fought for Democracy. In other lands, the people have lost. Here we shall win. It is a glorious privilege to live in this time, and have a free hand in this fight for government by the people."

Alongside the exposes and editorials, it also contained a section by his wife and co-editor, Belle, on economical living, education reform, healthy habits - and recipes. Her century-old "Butter Cookies" taste remarkably like Nilla wafers (a Mondelez product), and are an easy, inexpensive, and delicious substitute for the off-limits snacks:

PROGRESSIVE COOKIES

La Follette 3.jpgIngredients:
1 cup flour
1/2 teaspoon baking powder
1/2 stick butter, melted
2/3 cup sugar
1 egg
Small pinch salt

Directions:
Preheat oven to 325 degrees.
Combine dry ingredients in medium-sized bowl, then add eggs, butter, and sugar. Stir until smooth (batter will be wet).
Spoon in small teaspoonfuls onto cookie sheet. Bake for 15-20 min or until golden brown around edges.
Enjoy (and bask in the knowledge of your fidelity to the cause!)

While There Is a Criminal Element...

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serverpic.jpg...Socialists have, historically, been lumped in with it. Many liberals have noted the uncanny parallels between Bernie Sanders' current campaign and the Presidential bid that Eugene Debs made from his prison cell in 1920, after being incarcerated in the Red Scare crackdown on the political left. As he famously declared after his conviction, he was only jailed for his belief in the equality of all people: " Your Honor, years ago I recognized my kinship with all living beings, and I made up my mind that I was not one bit better than the meanest on earth. I said then, and I say now, that while there is a lower class, I am in it, and while there is a criminal element I am of it, and while there is a soul in prison, I am not free." This time around, however, it isn't Sanders who faces a potential run-in with the law on his road to the White House; rather, it is his opponent, establishment favorite Hillary Clinton.

Though Hillary herself does not seem very concerned about the potential indictment of herself or her close associates for her mishandling of classified information, it remains a distinct possibility. If there are charges, prosecutors have multiple options for how to pursue the case, and rampant speculation concerning possible counts against the Secretary has clouded the conversation. Realistically, though, an indictment concerning the server incident would probably be based in the following statutes:

hillary.jpgThe most straightforward avenue is the Espionage Act, which subjects "Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States... any classified information" to up to ten years in prison. Title 18 U.S.C. §798. Though a sentence containing any prison time is highly unlikely, Hillary would have to turn over the servers if convicted - a dramatic consequence that her opponents would have no difficulty converting into a campaign spectacle. Even though she is unlikely to receive anywhere close to the prescribed penalty, an eventual prosecution would doubtlessly draw off this section because of its unquestionable relevance to the facts. Ironically, this is also the same law that Debs was imprisoned under another portion of, but no serious constitutional challenges have yet been sustained.

Prosecutors will likely compound that count with 18 U.S.C.
§1519, an obstruction-of-justice law which, for most of its career, has been restricted to instances of paper shredding. However, its actual language is quite broad, criminalizing conduct that "alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object." Interestingly, the Supreme Court ruled last Term in Yates v. United States (13-7451) that an illegally caught grouper fish was not a "tangible object" within the meaning of the statute, because it was not analogous to the corporate records the legislature intended to preserve by passing the law. This could result in a drawn-out challenge on the grounds that emails are not technically "tangible objects" either, potentially redefining the rule yet again.

Given the prospective infirmities of §1519 and the fact that Hillary has long been the establishment candidate in the Democratic race, a conviction is not expected. Rather, this controversy will probably resolve itself in either dropped charges, an inconclusive plea deal that does not distinctly assign fault to the Secretary or, if such a deal is not offered, in lengthy litigation over the technical wording and application of the apposite laws. Whichever occurs, however, this story will indubitably continue to dominate political headlines in the coming months.

Reversed and Remanded - and Reversed

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Last year, in Michigan v. EPA (14-46, 576 U.S. 14), the Supreme Court ruled that the EPA incorrectly neglected to thoroughly consider the economic costs of its lifesaving Mercury and Air Toxics Standards (MATS). Expanding on that ruling, the Court deviated from its usual procedure and granted an application to stay enforcement of Obama's Clean Power Plant just last month.

Now, just yesterday, Chief Justice Roberts unexpectedly denied Michigan's request to stay enforcement of the MATS. After the Supreme Court handed down its ruling in Michigan, the cause was remanded to the D.C. Circuit, which (in the petitioners' words) "refused to vacate the unauthorized Rule, and instead left it in place with the effect of binding law." On Thursday, one of the S.C.'s most conservative members declined to take any action on that.

This case is important to the entire legal and environmental community, but it is also personally relevant to me. Ever since the certiorari petition was filed in Michigan, I had followed that case intently, and when it was granted I attempted to write and file an amicus curiae brief in support of the respondents. I was fourteen years old at the time, as enthusiastic as I was inexperienced and still more than a decade away from satisfying the S.C.'s bar admission requirements. My chances of procuring consent to file the brief were exceedingly slim.

The chances of everything that happened next were even slimmer.

I had listened to the recordings of almost every Supreme Court oral argument for years, but my familiarity with the cases and advocates only made it more surreal when I made one last phone call and, much to my surprise, found myself talking to Roman Martinez about the bar-admission situation. Far from dismissing my brief, as I fully expected, he took the time out to write me over the course of the next days, forward my pleading to Solicitor General Verrilli, and even invite me to attend the hearing.

The respondents' argument, on March 25th of 2015, was among the most forceful and engaging presentations I have read or listened to. General Verrilli opened for the EPA, carefully navigating hostile questions from Chief Justice Roberts and Justice Kennedy before launching into an accessible, cohesive explanation of the rules' background and effects in a manner strongly reminiscent of Louis Brandeis' renowned Muller v. Oregon (208 U.S. 412 (1908)) brief. To conclude, he outlined the EPA standard for reasonable administrative action, and deftly dealt with the preclusion undertones B&B v. Hargis had introduced. Then Paul Smith took over, speaking for industries supporting the regulations. He dealt mainly with the more technical aspects of the EPA's studies before subtly and effectively invoking the mootness question by describing how the majority of emissions sources had already implemented the MATS.

The decision in the case did not come down until June 29th, the last day of the Term. The D.C. Circuit's earlier ruling in favor of the EPA was reversed and remanded without vacatur 5-4, the late Justice Scalia speaking for the majority. The Circuit, pursuant to that disposition of the case, allowed the MATS to remain in force until the Agency was able to update them taking costs into consideration. Subsequently, Michigan et al. sought this stay of the rules, employing the preclusion and mootness angles to make their claims appear urgent. These arguments, however, were just sanctioned by Roberts in his denial of their application, unexpectedly strengthening administrative discretion instead of weakening it further.

Through all the twists and turns of this case, from the excitement of a pending litigation to the disappointment of what appeared to be final defeat and, now, to Roberts' surprising decision to render the earlier opinion unenforceable, I remain extremely grateful to everyone at the Department of Justice, and especially to General Verrilli and Mr. Martinez, who allowed me to feel like a small part of this unforgettable ride. Thank you for the incredible experience I call my first case.

K letter.png(Katrianna posted the text on this entry and left out this image, so I went maverick on her and added it. -Her big sister)

On Certiorari with Carter G. Phillips

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If you're reading this, you're currently using surface-mount technologies. These extremely small apparatuses are components of almost every technological device, from the flash drive in your pocket, to the phone in your bag and the computer in front of you, to the television flashing in front of you, the stereo in the background, and even the car outside your house. STMs were revolutionary when they were first invented in the 1960s, but they have now become commonplace facts of modern life.

Maybe that's why it's surprising that these diminutive devices are at the heart of a currently pending Supreme Court case poised to potentially redefine the standards federal courts use to determine whether punitive damages are appropriate. On February 23rd, the Supreme Court heard oral arguments in Halo Electronics v. Pulse Electronics (14-1513). This case, originating in the U.S. District Court for Nevada, deals on its face with the alleged infringement of Halo's patents for three types of STM by Pulse, which, the district court found, occasioned enhanced damages.

Although this case might seem, at first, to be technical and narrow in its scope, in reality it could profoundly affect the controversial issue of judicial discretion. The trial order and the Federal Circuit's eventual decision were both rather vague on this question, and during oral arguments the Supreme Court remained equivocal as to its view of the subject. Therefore, I invited Carter G. Phillips, the respondents' counsel, to share his perspective on the case with us.

During the argument, Phillips seemed concerned about the fairness of the relevant statute, 35 U.S. §284, which only plaintiffs in patent actions can invoke. When I asked, he expressly named that as the factor that differentiates this case from Octane Fitness v. ICON Health, 134 S. Ct. 1749, which was argued and decided in 2014. The Court's issuance of another certiorari writ in circumstances so similar to Octane except for this fact seems to establish this as the central contention, a fact that could favor the respondents. In the past, the Court has rejected practices that have acted as disproportionate obstacles to either party, down to and including the traditional burden of proof (see Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970)), and without Justice Scalia it is unclear whether the Court could return to its Adickes-era vision of substantial justice.

Another major issue is the Seventh Amendment quandary stemming from the fact that these enhanced damages are a question both of law and of fact. If the Court was to decide on this, it could set itself up to re-examine the controversial divide between judicial power and jury discretion. Phillips, however, believes this is unlikely: "Facts are generally for the jury under the Seventh Amendment. So to avoid that problem, the Court should stick with de novo review and recognize that the question is really a legal issue." The Justices' interests in oral argument further hinted that they are unlikely to conclusively decide this.

The dynamics of this argument are also fascinating. The intervention of the United States in  what would otherwise seem to be a settled matter signals the importance of this case as a precedent in the area of judicial discretion, and materially changes the atmosphere of argument. As Phillips put it, "The United States invariably captures the Justices and law clerk's attention. That is a brief that will always be read carefully." The participation of the US was also unusual because the respondents' time was not divided, even though Phillips maintains that the facts of Halo do differ from those of its companion case, Stryker v. Zimmer. Once again, though, the Justices maintained a narrower view of the case, choosing not to probe deeply into these discrepancies.

Halo is the first case Phillips has argued in the S.C. since Justice Scalia's passing, and I had to ask how the Justice's famously rigorous questioning impacted his style of advocacy. He told us that he was personally able to anticipate most of their exchanges over the years: "I sometimes misjudged how he felt about a particular case, but the questions that flowed from what he thought about the merits were generally pretty predictable." He also said that Scalia's "absence did not seem to affect the pace of the argument, except perhaps both sides were given a little more of an opportunity to answer each question." Subsequent events, most notably the shattering of Clarence Thomas' long silence, prove that perhaps there will also be more opportunities to ask questions in the future.

Though on its surface Halo may appear to be an unexceptional dispute between two corporations over the particulars of patent infringement penalties, in reality the precedent it sets could deeply influence the future of American civil procedure.

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