Today in Supreme Court History: March 30, 1875

3/30/1875: U.S. v. Cruikshank argued.

Comments

[Dan Schiavetta]

Ex parte Wilson, 114 U.S. 417 (decided March 30, 1885): crime punishable by years of hard labor is a Fifth Amendment “infamous crime” requiring grand jury indictment (vacating 15 year sentence for counterfeiting)

Pecheur Lozenge Co. v. National Candy Co., 315 U.S. 666 (decided March 30, 1942): suit over wrapper design was common law trademark infringement (I didn’t know there was such a thing), not registered with Patent Office as alleged, so local law applied in diversity action (candy cigarettes, just what the world needed, https://www.kevinsavagecards.com/lot-84452.aspx, I remember those as a kid)

Georgia Ry. & Electric Co. v. City of Decatur, 297 U.S. 620 (decided March 30, 1936): not denial of Equal Protection or uncompensated Taking to require streetcar company to pave rest of road at its own expense

CITGO Asphalt Refining Co. v. Frescati Shipping Co., 589 U.S. 348 (decided March 30, 2020): tanker operator was entitled to reimbursement from charterer pursuant to charter warranty for cleanup of 264,000 gallons of crude oil when tanker hit abandoned anchor in Delaware River 900 feet from refinery dock

Luis v. United States, 578 U.S. 5 (decided March 30, 2016): government can’t freeze “innocent” (i.e., not fraud-related) assets defendant needed to access to pay for her lawyer (this was Sila Luis, who defrauded Medicare of $45 million, almost all of which she had already spent; ended up being ordered to pay that amount in restitution, though by then I don’t know how she would do that, see https://www.justice.gov/opa/pr/owner-two-miami-home-health-agencies-entenced- more-six-years-prison-role-74-million-medicare)

Jones v. Harris Assocs., 559 U.S. 335 (decided March 30, 2010): investment advisor to mutual fund liable under Investment Company Act of 1940 for “disproportionately high” fees (why they couldn’t find someone cheaper?)

Smith v. City of Jackson, Mississippi, 544 U.S. 228 (decided March 30, 2005): older police officers receiving lower raises than younger ones did not state age discrimination complaint when there was rational reason for disparity (the need to retain good younger officers) (there’s something not right about that idea)

Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (decided March 30, 2005): Rooker - Feldman doctrine (state court losers can’t run to federal court to nullify results on Constitutional grounds) does not require federal suit dismissal if suits brought concurrently and state suit happens to go to judgment first

United States v. Flores-Montano, 541 U.S. 149 (decided March 30, 2004): no warrant needed to search gas tank in vehicle entering United States (driver at border crossing did not have reasonable expectation of privacy; drugs found there) (they’ve tightened up since Henry’s day, see NRPS’s song of that name, on youtube)

United States v. United Continental Tuna Corp., 425 U.S. 164 (decided March 30, 1976): Philippine shipper can’t sue for damage caused by U.S. Navy vessel even though Suits in Admiralty Act appears to allow it; precluded by Public Vessels Act because Philippines offered no reciprocity

[A Japanese Student]

Pecheur Lozenge predates Lanham Act. I think people nowadays plead §43(a) instead of common-law trademark for unregistered trademark infringement.

[Dan Schiavetta]

Thanks!

[SRG2]

Luis got her timing wrong. If she'd done it more recently, she'd have been pardoned.

[Dan Schiavetta]

Unless she was a Democrat, or at any point said anything bad about Trump.

[Stupid Government Tricks]

Yes, then she would have gotten an earlier Biden pardon for things no one knew about.

[Dan Schiavetta]

Examples please

[David Nieporent]

suit over wrapper design was common law trademark infringement (I didn’t know there was such a thing),

Although TM, copyright, and patent are routinely lumped together as "IP," they are actually each quite different. Federal trademark law is not a comprehensive preemptive regulatory scheme like copyright. Federal registration gives one certain benefits (of course; if it didn't, people wouldn't do it), but is not required. In contrast, federal copyright registration is required before one can enforce a copyright.

[Dan Schiavetta]

Thanks.

I have entered trademarks on behalf of clients (in the music sales business). It hardly seems ethical to not register them.

[Drewski]

Eh, a lot of little mom & pop operations can't be bothered to register. If you're a solo pinball machine maintenance person with a toolbox and a truck, you probably didn't hire a lawyer to help you start up the business. Probably you struggled to buy a custom decal for the truck. Registering a trademark never crossed your mind until someone else started operating as the Pinball Wizard ten years later. Usually that's the scenario where common-law trademarks come up, almost always under state law.

I expect to see it come up more often as states legalize pot but the feds remain stubborn. Dispensaries and such will have to lean on the common law for interstate disputes, since the Lanham Act won't reach federally-illegal businesses and state trademarks won't cross borders.

[David Nieporent]

Registering a trademark never crossed your mind

I was an associate of a moderately well-known (in TM circles) trademark litigator. When small business owners came to him asking him to register trademarks, he would advise them to save their money and pour it into making the business a success, and only then, once the trademark had actual value, to register it.

[Dan Schiavetta]

Sounds like he didn't want to be bothered.

I charged my client $1000 to register his trademark, which was probably too much, considering the time I actually spent on it. Plus the registration fee which is $225.

[JoeFromtheBronx]

I am reading a book on a constitutional subject that will remain nameless since it has too many stupid errors. It is striking how many professional works, even those read beforehand by scholars in the field, have blatant errors.

Anyway, the Carolene Products opinion was discussed, and it was noted in passing that the Filled Milk Act was eventually declared unconstitutional. An interesting development.

Young JB references it here:

https://joshblackman.com/blog/2012/08/23/constitutional-faces-charles-hauser-president-of-milnot-defendant-in-united-states-v-carolene-products/

There were two Carolene Products opinions decided by the Supreme Court & Justice Black concurred separately in both. He did not join the section of the original with the famous footnote.

Milnot v Richardson was only a district court opinion, but the government did not appeal. If it did, it would not surprise me if the regulation was eventually upheld, since upholding economic regulations have to meet a low bar. At least in 1972.

[JoeFromtheBronx]

(Black did not have a separate concurring opinion in the original -- he just didn't join a section. In the second opinion, he concurred separately along with Douglas without opinion.)

[Dan Schiavetta]

Joe:

Thanks. This makes me feel better.

(Unless it was my book you're talking about!!)

[Dr-P]

This is a classic case to discuss incorporation. This case was decided before that concept and stood way too long afterward.

[A Japanese Student]

Alien Registration Act Case (Third Petty Bench, decided March 30, 1982): Requiring all noncitizens, including those unlawfully present, to register does not violate the Self-Incrimination Clause (even if unlawful entry is a criminal offense)

Tennis Umpire Chair Case (Third Petty Bench, decided March 30, 1993): Government not liable for death of 5-year-old who climbed up by hand and fell from the tall chair used by tennis umpire (installed on public school grounds)

Petition for Disciplinary Action (Grand Bench, decided March 30, 2001): Supreme Court has original jurisdiction for censure of High Court judges (impeachment, however, is a legislative process). Here, the Court censures a judge for practicing law (here, helping his wife defend against criminal charges for prank phone calls).

Tort Claims Case (Third Petty Bench, decided March 30, 2010): Future gold price is not an "important matter" under Consumer Contract Act §4(2) (defined as including quality of service) whose omission makes contracts voidable

Kokusai Motorcars Case (First Petty Bench, decided March 30, 2020): Employer cannot "deduct" overtime pay from commission so that employees receive the same total amount regardless of hours worked overtime (apparently a very common practice in taxi industry; how did they think this was legal?)

[Dr. Ed 2]

Alien Registration Act Case (Third Petty Bench, decided March 30, 1982): Requiring all noncitizens, including those unlawfully present, to register does not violate the Self-Incrimination Clause (even if unlawful entry is a criminal offense)

We used to do that -- wish we still did...