Today in Supreme Court History: January 24, 1968

1/24/1968: United States v. O'Brien argued.

 

Comments

[Dan Schiavetta]

Springer v. United States, 102 U.S. 586 (decided January 24, 1881): upholding federal income tax because it was not a “direct tax” such as has to be apportioned among the states by population (as is required by art. I, §2) (a later contrary decision led to the Sixteenth Amendment)

Panama Ry. Co. v. Pigott, 254 U.S. 552 (decided January 24, 1921): affirming Canal Zone District Court verdict for 7-year-old boy who was “run over” by a train (and still lived?); interesting because Holmes mentions that there was conflicting “testimony” from attorneys as to the law of Panama and judge had left that question of law for the jury (I once had a case transferred to Montreal and the Canadian attorneys told me that in that system “experts on the law” are allowed to testify — maybe it’s relevant that Quebec, like Panama, has a civil law and not a common law tradition)

National Organization for Women v. Scheidler, 510 U.S. 249 (decided January 24, 1994): RICO claim brought by abortion clinics against “pro-life” organizations can go forward because no economic motivation need be alleged (after years of litigation NOW finally lost)

Illinois v. Caballes, 543 U.S. 405 (decided January 24, 2005): appearance of second officer with cocaine-sniffing dog during traffic stop did not infringe Fourth Amendment where stop was not extended beyond the time it would ordinarily take to write the traffic ticket (first officer must have been a really slow writer)

Comm’r of Internal Revenue v. Banks, 543 U.S. 426 (decided January 24, 2005): if your recovery is taxable income (this was an employment discrimination suit), you have to pay tax even on that part that goes to the attorney (but the attorney pays on that amount also — isn’t that taxing the same income twice?)

[David Nieporent]

isn’t that taxing the same income twice?)

Yes. But that was superseded by the Tax Cuts and Jobs Act, which allows an above-the-line deduction from AGI for attorneys' fees in much employment-related litigation.

[Martinned]

Wait, how do you get the expertise of an expert on the law on the record other than having them testify? I mean, their "testimony" might simply come in the form of an affidavit, but if there is a dispute about their views what else is the other side supposed to do other than cross-examine them? Put another expert view on paper and leave it at that?

[John F. Carr]

Under modern rules the judge decides questions of foreign law based on whatever evidence he likes. See Federal Rule of Civil Procedure 44.1.

Quoting Animal Science Products v. Hebei Welcome Pharmaceuticals:

Federal Rule of Civil Procedure 44.1, adopted in 1966, fundamentally changed the mode of determining foreign law in federal courts. The Rule specifies that a court’s determination of foreign law “must be treated as a ruling
on a question of law,” rather than as a finding of fact. Correspondingly, in ascertaining foreign law, courts are not limited to materials submitted by the parties; instead, they “may consider any relevant material or source . . . , whether or not . . . admissible under the Federal Rules of Evidence.”

[Martinned]

In English law, unsurprisingly, foreign law is also a question of fact. (Albeit a question of fact that is always for the judge to decide.) You prove it most commonly by submitting an expert report, about which the expert can then give oral evidence and be cross-examined. In that sense it's no different than any other question of fact where expertise might be relevant.

https://www.oeclaw.co.uk/images/uploads/documents/Pleading_w-036-2170_2.pdf

[Magister]

(after years of litigation NOW finally lost)

Yes, but the loss seems to be on a technicality.

From Wikipedia:

A trial began in 1998 to determine whether the allegations against Scheidler and PLAN were true and if they were violations of RICO and the Hobbs Act (this was added as a predicate). It was the role of NOW to prove that there had been a national effort by PLAN to prevent women from accessing abortion clinics through violence or the threat thereof. After NOW's testimonies, the jury decided unanimously that PLAN was guilty. The court awarded monetary compensation to NOW, and also ruled that PLAN was forbidden to interfere with NOW's right to provide abortion services.

PLAN appealed to the Seventh Circuit under the claim that they had not violated the Hobbs Act. The act explicitly defines extortion as obtaining property, and PLAN argued that at no point had they taken property from NOW. This claim was rejected and PLAN appealed to the Supreme Court. The court voted unanimously 8-0 in favor of Scheidler and PLAN. It ruled that PLAN, while depriving abortion clinics of property, did not actually acquire anything, meaning PLAN did not commit extortion under the Hobbs Act.

The last sentence seems wrong, since Stevens dissented. So people motivated by ideology and not profit cannot be racketeers, which seems plausible, but depriving someone of property seems also to be something that should otherwise be penalized.

[Dan Schiavetta]

Thanks!

yes, I agree, a wrong decision

[Dilan Esper]

On "experts on the law", that's often a way of proving the content of FOREIGN law in a case. In theory you could use it to prove domestic law too, but in practice judges believe they can just read domestic law and understand it so the expert testimony isn't admissible.

[Dan Schiavetta]

It's odd that one would need an "expert on the law" to opine on domestic law. We attorneys are supposed to know that stuff. Otherwise we don't get admitted to practice.

[F.D. Wolf]

Captcrisis isn't kidding about the litigation in National Organization for Women v. Scheidler lasting for years. It, in fact, lasted 28 years, including three stops at the Supreme Court. NOW initially filed its suit in June 1986. The final court decision in the case came on April 29, 2014, with the Seventh Circuit affirming an award of $63,391.45 in costs to the defendants (about $2,265 per year of litigation.) Judge Frank Easterbrook, writing for the court, concluded the opinion with, "This litigation has lasted far too long. At last it is over." 750 F.3d 696, 700 (7th Cir. 2014).

[defaultdotxbe]

I don't think it's taxing the "same" income twice, because it's taxing it as your income, then taxing as it as the lawyer's income after you paid them. It sounds like it's finding that the award was 100% to the plaintiff, and then the plaintiff pays the lawyer, as opposed to a portion of the award going directly to the lawyer.

[Krayt]

My thought too, it's the same as normal. You pay your after tax earnings to a lawyer, who then pays their own taxes.

Unless there's some deductability there.

[David Nieporent]

Speaking of O'Brien and the first amendment, the 5th Circuit is being its usual awful self, declaring en banc that it's okay to arrest someone for supposedly (but not actually) violating an obviously unconstitutional statute because you don't like the person who did that.

https://www.ca5.uscourts.gov/opinions/pub/20/20-40359-CV3.pdf

(This will show up in the Short Circuit post this Friday.)

[Rev. Arthur L. Kirkland]

It's almost certain there will be enough authoritarian assholes to assemble a majority whenever three or more Fifth Circuiters assemble.

[not guilty]

I am no fan of Fifth Circuit jurisprudence, and the qualified immunity doctrine is an abomination which Congress should abolish, but under existing law the Fifth Circuit majority seems to have gotten Ms. Villarreal’s Fourth Amendment claim right. I'm not so sure about her First Amendment retaliatory arrest claim, which I hope will trigger SCOTUS review.

An officer is entitled to rely upon an arrest warrant issued by a magistrate, and is thus entitled to immunity, unless the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable. Malley v. Briggs, 475 U.S. 335, 344-345 (1986). The validity of the arrest does not depend on whether the suspect actually committed a crime; the mere fact that the suspect is later acquitted of the offense for which he is arrested is irrelevant to the validity of the arrest. Michigan v. DeFillippo, 443 U.S. 31, 36 (1979). Where a statute or ordinance, which had not been declared unconstitutional at the time of the arrest, is subsequently declared unconstitutional, the validity of the arrest is unaffected. Police are charged to enforce laws until and unless they are declared unconstitutional. The enactment of a law forecloses speculation by enforcement officers concerning its constitutionality — with the possible exception of a law so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws. Id., at 38. See also, Pierson v. Ray, 386 U.S. 547, 555 (1967).

Ms. Villarreal’s First Amendment retaliatory arrest claim is more troubling, even assuming the existence of probable cause for the arrest. SCOTUS has granted cert in another Fifth Circuit retaliatory arrest case, Gonzalez v. Trevino, 42 F.4th 487 (5th Cir. 2022), which required a plaintiff to submit evidence that law-enforcement authorities were aware of, but declined to arrest, other individuals who engaged in the same general behavior as the plaintiff but did not engage in the same First Amendment activities. That case should be argued later this term.

[Dan Schiavetta]

Gutsy guy!

[Mr. Bumble]

Became a civil rights lawyer?

[Bob from Ohio]

"subsequently became of him"

Weatherman terrorist?

[BrotherMovesOn]

QA, my parents were close friends with the O'Briens.
David went on to become a physcolgist in NYC.
I last saw him about 5 years ago at his mother's house in Dennis, MA (Cape Cod). They were great people and he was a nice guy, although much older than me. In college I did a phone interview with him for a PoliSci (?) project. Professor loved it.

[Magister]

I'm not qualified to do nutshells, but this from a Wikipedia reference was long but interesting.
https://web.archive.org/web/20120314230943/http://hosted.law.wisc.edu/wjlgs/issues/2006-spring/nero.pdf

[apedad]

Here's the link to the oyez page: https://www.oyez.org/cases/1993/92-780

The issue came down to, "Does RICO require that an organization, to be defined as a racketeering enterprise, must be acting in pursuit of an economic motive?"

SC said Nope! There does not need to be an economic motive so NOW prevailed.

[Bob from Ohio]

I was close, "taught politics at the University of Virginia for almost four decades" according to his 2018 NYT obit.

[Rev. Arthur L. Kirkland]

Sounds like he was probably a culture war winner.

[BrotherMovesOn]

... psychologist