Thursday round-up

By Amanda Rice
on Jun 2, 2011 at 8:53 am

On Tuesday the Court issued opinions in Ashcroft v. al-Kidd, the material-witness case, and Global-Tech Appliances, Inc. v. SEB S.A., a civil patent infringement case.  [Disclosure:  Goldstein, Howe & Russell filed an amicus brief in support of the respondent in al-Kidd.]  Adam covered initial coverage of and reactions to the decisions in yesterday’s round-up, and commentary continues.

Although the Court’s decision in al-Kidd was unanimous (with Justice Kagan recused), Mike Dorf of Dorf on Law notes that the Justices disagreed about several significant issues.  In particular, “[f]our Justices . . . hinted that they may be receptive to tightening up on the use of material witness warrants”; he predicts “that Justice Kagan would join them if the issue were to return.”  In The Atlantic, Wendy Kaminer expresses concern about the Court’s “callous disregard for the most fundamental rights of American citizens” and suggests that there is reason to worry “about judges who sneer at human suffering.”

Here at SCOTUSblog, Ronald Mann analyzes the decision in Global Tech, which he predicts will “cast a long shadow over strategic IP planning in the years to come.” Looking beyond the potential impact of the case on intellectual property law, Ellen Podgor of White Collar Crime Prof Blog highlights its potential effect on criminal law more broadly. In particular, she suggests that the Court’s discussion of what it means to be “willfully blind” “is extremely important for the white collar practitioner” because “a corporate executive may be claiming that he or she did not know about the questioned criminal conduct.”  (Thanks to CrimProf Blog for the tip.)  Ars Technica and Forbes also have coverage of the decision.

Reactions to the Court’s decision last week in Brown v. Plata, the California prison-overcrowding case, also continue.  In a post for the Opinionator Blog of the New York Times, Linda Greenhouse argues that the decision – which she describes as “remarkable” – is reminiscent of “the era of the ‘structural injunction,’ the term for an order by which a court takes control of a public institution.” She notes that “[t]he Court uses that power rarely these days, but in this one decision, it found a nearly forgotten voice from long ago.” Meanwhile, over at The Atlantic, Stuart Taylor highlights the “semi-convergence between the logic of the far more measured Alito-Roberts dissent and that of Kennedy’s majority opinion,” and he suggests Justice Scalia may have gotten “a bit carried away” in his “overheated dissent.”

Briefly:

• At Sentencing Law and Policy, Doug Berman shares his “instinct that Justices Kennedy, Alito, and Sotomayor are to be the chief forces driving the criminal justice side of the SCOTUS docket and that they possibly could reshape the direction of sentencing jurisprudence in many important ways in the Term to come.”
• As Adam reported in yesterday’s round-up, Justice Breyer broke his collarbone in a bicycle accident over the Memorial Day weekend. Reuters has more coverage, while Adam Martin of the Atlantic Wire notes “other minor injuries and collisions” suffered by the members of the Court in recent years.