Today's Wall Street Journal Law Blog includes an article about the U.S. Supreme Court's decision to review three cases involving "honest services fraud" (click here). According to the article, "[t]he law makes it a crime to deprive someone of 'the intangible right of honest services.' It’s a head scratcher – a vague standard that can seemingly encompass just about any manner of supposed sin." One case involves Jeffrey Skilling, a former Enron executive. The two other cases involve "Conrad Black, the newspaper titan convicted of defrauding his company, Hollinger International," and "Bruce Weyhrauch, a former Alaska legislator, who allegedly failed to disclose . . . conflicting business dealings." The statute at issue is 18 U.S.C. § 1346 (click here).

A New York Times article to which the Law Blog piece links (click here) states, "[i]n its Supreme Court brief in Mr. Black’s case, the government said the honest services law has an important role to play in attacking frauds that do not involve the loss of money or property but something intangible like candor or loyalty." At least one Supreme Court Justice appears to be skeptical of that argument. "The bottom line, Justice Scalia said in February, is that the courts have not been able to define what separates 'the criminal breaches, conflicts and misstatements from the obnoxious but lawful ones.' The honest services law, he said, 'invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators and corporate C.E.O.’s who engage in any manner of unappealing or ethically questionable conduct.'”

Tags: Supreme Court of the United States, Criminal Law

A blog post dated today at The Volokh Conspiracy concerning the U.S. Supreme Court's website collects helpful links about where to get copies of briefs, opinions, and oral argument audio for its cases (click here). As the post notes, you can't presently do that through the Court's website, which seems strange. The author writes, "it strikes me as sort of a surprising that the Supreme Court’s own website isn’t the primary source of publicly available information about the Court’s cases. It posts the transcripts first, which is very useful, and it has all the docket pages publicly available, both of which are great. But I would think it a good idea for the Court to remake its website to be the first place new opinions are made available; the first place filed briefs are available online; and the first place oral argument audios are posted." (Hat tip to WSJ Law Blog).

Tags: Supreme Court of the United States, Technology

Yesterday's New York Times includes a nice summary of business cases that are on the U.S. Supreme Court's docket this term (click here). "The case that has most transfixed the business community is Bilski v. Doll, No. 08-964, a patent dispute that addresses the consequential question of whether intangible business methods may be patented. A federal appeals court last year rejected Bernard L. Bilski’s attempt to patent a method of hedging risks in commodities trading, ruling that only processes tied to a particular machine or capable of transforming an object into something different can be patented. . . . A broad ruling could affect many aspects of the economy, notably computer software."

Tags: Supreme Court of the United States

Today's Wall Street Journal includes a brief preview of the U.S. Supreme Court's new term (click here).

Tags: Supreme Court of the United States

Today's New York Times contains an article about the size of the U.S. Supreme Court's docket (click here), which is about half of what it was in the early 1980's, although the reasons aren't clear. "A couple of weeks ago, the Supreme Court advocacy clinic at Yale Law School held a conference to explore the mystery of the court’s shrinking docket. Law professors presented data, theories and speculation. Expensive lawyers told rueful stories about can’t-miss cases that somehow did not make the cut. . . . The most striking possible explanation came from David R. Stras, a researcher at the University of Minnesota Law School. A crop of five new justices who joined the court starting in 1986, he found, voted to hear cases far less often than the justices they replaced."

Tags: Supreme Court of the United States

Today's Wall Street Journal contains a thought-provoking piece (click here) concerning the extent to which corporations should be treated as natural persons. The starting point for the article is a comment that U.S. Supreme Court Justice Sotomayor made during arguments last week in a campaign finance case, Citizens United v. Federal Election Commission, Docket No. 08-205.

Tags: Supreme Court of the United States, Federal Constitutional Law, Corporations

On Monday, a group of Native Americans filed a petition for certiorari in the U.S. Supreme Court. They seek review of a decision by the United States Court of Appeals for the D.C. Circuit that rejected their claim, on the basis of a laches defense, that trademarks registered by the Washington Redskins pro football team that incorporate the term "redskins" should be cancelled. (Click here for the story and here for the petition for certiorari.) The case is styled Harjo v. Pro-Football, Inc., No. 09A122. Pro-Football, Inc. is the team's corporate name.

The Native Americans argue in the petition that the marks, which the team registered between 1967 and 1990, "should never have been registered and . . . were therefore void ab initio, justifying immediate cancellation. Section 14(3) of the [Lanham] Act provides for cancellation of a registration 'at any time,' if the subject mark was registered 'contrary to the provisions' of Section 2(a) of the Act. 15 U.S.C. § 1064(3). Pursuant to Section 2(a), no mark shall be registered if it consists of or comprises 'matter which may disparage . . . persons, living or dead, . . . or bring them into contempt, or disrepute . . . .' 15 U.S.C. § 1052(a)." (Petition at p. 3).

The Native Americans prevailed at the Trademark Trial and Appeal Board in 1999, but the U.S. District Court for the District of Columbia reversed on the basis of laches, and, after a remand, the D.C. Circuit affirmed. The D.C. Circuit's opinion states, laches is "an equitable defense that applies where there is '(1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.'"

In the petition, the Native Americans assert that there is a split among circuits on the question of whether laches applies to trademark cancellation petitions. (Petition at 8). The petition cites a Third Circuit opinion that then-Judge (now Supreme Court Justice) Alito wrote in which, according to the petitioners, the court "held that a counterclaim brought under Section 14(3) of the Act was not time-barred" by the doctrine of laches because of the statute's use of the words "at any time." (Id.) Not surprisingly, the cert petition relies heavily on that opinion.

For the most part, I grew up in the Washington, D.C. area, and I've been a fan of the team for a long time, but it's tough for me to see how the term "redskins" isn't disparaging. Whether a court will ever reach that question, however, remains to be seen.

Tags: Supreme Court of the United States, Laches

Today's Wall Street Journal contains a short but interesting piece about former U.S. Supreme Court Justice O'Connor's views on judicial elections (she's against them). In November, she will be attending a judicial selection forum in Columbus concerning the selection process for Justices of the Supreme Court of Ohio (click here for more detail).

Tags: Supreme Court of the United States, Supreme Court of Ohio

Today’s Wall Street Journal has an interesting story about a potentially very important case concerning restrictions on corporate campaign spending, which the U.S. Supreme Court has set for (re)argument on September 9, 2009. Citizens United v. Federal Election Commission, Docket No. 08-205.

Tags: Supreme Court of the United States, Federal Constitutional Law

There’s an interesting article in today’s Wall Street Journal about former Justice Sandra Day O’Connor serving as a substitute federal appeals judge. Additional material here. She’s a true public servant who, like Jack Borden (see August 7 post, below), loves what she does.

Tags: Federal Judiciary, Supreme Court of the United States