Monday round-up

EDITH ROBERTS FEB 27, 2017 7:23 AM

Today the court hears oral argument in two cases. The first is Packingham v. North Carolina, which asks whether a ban on social media use by sex offenders violates the First Amendment. Amy Howe previewed the case for this blog. Another preview, by Nicholas Halliburton and Natalia San Juan, appears at Cornell University Law School’s Legal Information Institute. Additional coverage comes from Steven Nelson at U.S. News and World Report, Steven Mazie in The Economist and Lauren Russell and Nina Totenberg at NPR. At The Marshall Project, Andrew Cohen discusses the case, noting that “just below the surface is a dispute about how far the state may go to punish someone for acting without criminal intent.”

The second case on today’s docket is Esquivel-Quintana v. Sessions, in which the justices will decide whether a state-law conviction of “sexual abuse of a minor” constitutes an “aggravated felony” under federal immigration law that requires the removal of a lawful permanent resident. Kevin Johnson previewed the case for this blog. Another preview comes from Cassandra Desjourdy and Weiru Fang at Cornell.

At The Hill, Lydia Wheeler reports on how the Trump administration’s revocation of prior guidance from the federal government that had interpreted a 1975 regulation to require schools to “treat transgender students consistent with their gender identity” is likely to affect Gloucester County School Board v. G.G., a challenge to a Virginia school board’s bathroom policy, noting that both “sides want the case to move forward as planned.” In the Federal Regulations Adviser, Leland Beck predicts that “SCOTUS seems likely to vacate the Fourth Circuit decision and remand for further consideration rather than decide a different issue on the merits, unhinged from evanescent guidance.” Additional commentary comes from Ken Jost at Jost on Justice and from Ernie Haffner at his eponymous blog, who argues that because “the rescinded guidance tracks the analysis adopted by counsel for Grimm and by LGBT advocates,” “advocates would do well to use this opportunity to go back to the drawing board.”

In National Review, Ilya Shapiro and Frank Garrison assert that Judge Neil Gorsuch’s originalist approach to judging offers “renewed hope for a renaissance in enforcing the Constitution’s structure as the means for securing and protecting ordered liberty,” and they praise Gorsuch for recognizing the “damage that the modern administrative state has wrought on individual liberty.” At Antonin Scalia Law School’s Center for the Protection of Intellectual Property, Kevin Madigan assesses Gorsuch’s record in intellectual property cases, concluding that one of Gorsuch’s copyright opinions reveals “an appreciation for the originality and new expression required of copyright–a requirement often ignored by proponents of ever-expanding notions of fair and transformative use.”

Briefly:

• At Thomson Reuters’ Legal Solutions blog, Patrick Hughes looks at last week’s decision in Life Technologies Corporation v. Promega Corporation, in which the justices held that the supply of a single component of a multicomponent invention for manufacture abroad does not trigger liability under a provision of the Patent Act.
• In the Kentucky Law Journal, law student Page Smith looks at Kindred Nursing Centers Limited Partnership v. Clark, a case asking whether federal law pre-empts a Kentucky rule that requires a power of attorney to mention arbitration expressly before it can be used to bind a nursing-home resident, noting that “given the brewing distrust of arbitration agreements in nursing home contracts, which are often signed when both patients and their families are in vulnerable states of mind, this case is expected to have potentially far-reaching implications on the long-term care industry and its ability to avoid the costs of litigation.”
• In The George Washington Law Review, Robin Maher discusses last week’s decision in Buck v. Davis, in which the court lifted the death sentence of a Texas inmate whose defense expert had testified during sentencing that the defendant was more likely to be violent in the future because he is black, arguing that “Buck’s case is emblematic of much that is wrong with the death penalty: racial discrimination, incompetent defense counsel, prosecutorial misconduct, the exaltation of procedure over fairness, and the priority placed on achieving ‘finality’ instead of justice.”

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