Today in Supreme Court History: May 13, 1912

5/13/1912: Seventeenth Amendment is approved by the House of Representatives. The Senate approved it the prior month. The Seventeenth Amendment was ratified in 1913.

Comments

[Dan Schiavetta]

Apple v. Pepper, 587 U.S. --- (decided May 13, 2019): purchasers of apps at App Store are direct purchasers and therefore can sue Apple as a monopoly under the Clayton Act (as of this writing litigation is dealing with question of class certification)

Bowman v. Monsanto, 569 U.S. 278 (decided May 13, 2013): it is a patent infringement for a farmer to sell soybean seeds produced by plants grown from patented genetically modified soybean seeds

Brady v. Maryland, 373 U.S. 83 (decided May 13, 1963): prosecution must turn over to defendant all exculpatory evidence

Morris & Co. v. Skandinava Ins. Co., 279 U.S. 405 (decided May 13, 1929): no jurisdiction over insurance dispute where only connection with forum state (Mississippi) was reinsuring some risks there; policy at issue was issued in South America, loss occurred there, and defendant was based in another state (Louisiana)

United States v. Noland, 517 U.S. 535 (decided May 13, 1996): bankruptcy court can re-order priority of creditors but not as to the IRS which has statutory priority absent “inequitable conduct”

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (decided May 13, 1991): Age Discrimination in Employment Act of 1967 did not invalidate arbitration clause in securities representative’s employment contract

Cochise Consultancy, Inc. v. United States ex rel. Hunt, 587 U.S. --- (decided May 13, 2019): statute of limitations for qui tam (“private attorney general”) action where the United States decides not to intervene begins to run when the qui tam plaintiff first notifies the relevant federal official about it (here, contractors submitting fraudulent invoices for security guard work in Iraq) not when the qui tam plaintiff first found out about it

44 Liquormart v. Rhode Island, 517 U.S. 484 (decided May 13, 1996): statute prohibiting advertising of liquor prices violated First Amendment

Kremen v. United States, 353 U.S. 346 (decided May 13, 1957): warrant needed to search and seize entire contents of cabin where defendants (two fugitives from justice and two accused of helping them) had been hiding and which police had surveilled for 24 hours; Court appends the extensive list of the innocuous items seized; I was born in that year and it reminds me of life when I was a little kid, right down to the Kent cigarettes my mother smoked and my Swingline “Tot” stapler

In re Nielsen, 131 U.S. 176 (decided May 13, 1889): double jeopardy rule precluded prosecution against Utah man for adultery involving one woman where he had already served time for bigamy during the same time period involving that woman and another woman

Lapides v. Board of Regents of University System of Georgia, 535 U.S. 613 (decided May 13, 2002): state waives its Eleventh Amendment immunity when it removes a case to federal court (the issue arose because after removal the federal claims were dismissed, leaving only state law claims)

[David Nieporent]

Brady v. Maryland, 373 U.S. 83 (decided May 13, 1963): prosecution must turn over to defendant all exculpatory evidence

That's how it's often summarized, but it actually requires that all evidence favorable to the defendant be turned over. That is, the evidence need not itself be sufficient to establish innocence. It just has to be material.

The problem with Brady is that it is a prospective rule that is enforced retroactively. Meaning that the only time a court considers whether nondisclosure was a Brady violation is after the fact, after someone has been convicted. And at that point 'harmless error' is routinely used to excuse violations: "Yes, the prosecution should have disclosed X, but it wouldn't have changed the outcome, so there's no remedy for the violation." (In theory there could still be bar discipline for that. And in theory I could be sleeping with Gal Gadot right now.)

And so prosecutors have internalized the "real" Brady rule as "I don't have to turn over X — nothing will happen to me if I don't — unless it actually establishes innocence."

[Dan Schiavetta]

That's quite true. That's how it was summarized in a little list I saw in one of the dark recesses of the paralegal cubicles in the Kings County (Brooklyn, N.Y.) D.A. office when I interned there in 1991. Thanks.

[SMP0328]

Lapides v. Board of Regents of University System of Georgia, 535 U.S. 613 (decided May 13, 2002): state waives its Eleventh Amendment immunity when it removes a case to federal court (the issue arose because after removal the federal claims were dismissed, leaving only state law claims)

This was done alot successfully prior to Lapides. State removes to federal court and then gets case dismissed based on sovereign immunity. A similar tactic was stopped regarding Takings Clause cases (see Knick v. Township of Scott, Pennsylvania, No. 17-647, 588 U.S. ___ (2019)).

[Dan Schiavetta]

Thanks !

[Dilan Esper]

Wait a second. Double jeopardy in a bigamy case? I love it!

[Dan Schiavetta]

One of his wives had left. If he had three wives, and one of them left, double jeopardy would bar a bigamy prosecution for that same period after being convicted of -- trigamy? If he had four wives, and one of them left, double jeopardy would bar a trigamy prosecution for that same period after being convicted of quadrigamy. If he had five wives . . .

[Commenter_XY]

Too bad 17A was passed. What a terrible mistake.

[The Margrave of Azilia]

OTOH, even before that amendment, many states were in practice working around the legislative appointment of Senators by holding informal popular elections and pressuring the legislators (sometimes with formal pledges IIRC) to vote for whoever the people picked.