Submitted by Louis Virelli
Tuesday afternoon at SEALS featured one of the conference’s longest running and most popular panels, the Supreme Court and Legislative Update (administrative, corporate, and IP edition). The panel was moderated by Professor Constance Wagner from Saint Louis University School of Law and featured five presenters covering a whopping sixteen cases from the Court’s October 2020 term, plus two legislative initiatives in IP.
Bill Funk, the Lewis & Clark Distinguished Professor of Law Emeritus, started by discussing six administrative law cases, ranging from the constitutionality of administrative patent judge appointments (Arthrex) and removal of single-member agency heads (Collins) to questions of issue exhaustion in administrative proceedings (Carr) and statutory remedies available to the FTC (AMG Capital). He concluded with two immigration cases, addressing the issues of credibility on judicial review (Dai) and notice (Niz-Chavez) in removal proceedings.
Professor Funk was followed by Professor Akram Faizer from Lincoln Memorial University’s Duncan School of Law. Professor Faizer continued the panel’s early administrative law theme by presenting cases on the availability of collateral challenges to removal proceedings (Palomar-Santiago) and arbitrariness review of agency action (Prometheus Radio). He noted that the Court’s conclusion in Prometheus Radio—that that the FCC did not act arbitrarily in revisiting broadcast ownership rules—may signal an attempt by the justices to bolster judicial deference doctrines after what he described as less deferential recent decisions by the Court in, for instance, Department of Commerce v. New York (rejecting as arbitrary the Commerce Department’s inclusion of a citizenship question on the census), and DHS v. Regents (rejecting DHS’s recission of the DACA memo as arbitrary).
The next presenter was Professor Amy Landers from Drexel University’s Thomas R. Kline School of Law. Professor Landers focused on Google v. Oracle, which held that Google engineers’ copying of 11,000 lines of code created by Oracle was covered by the fair use doctrine and thus did not constitute a copyright violation. In reaching that conclusion, the Court focused on the statutory factors for fair use, concluding that because the code at issue is user-centric, was used for a creative purpose by Google, and did not really impact Oracle’s market share, its copying by Google was permissible. Professor Landers moved on to address the Court’s recent affirmance of the doctrine of assignor estoppel in patent law (Minerva) and two legislative developments from 2020 governing the adjudication of copyright claims (Copyright Alternative in Small-Claims Enforcement (CASE) Act) and the cancellation of unused trademarks (Trademark Modernization Act).
Professor Landers was followed by Gary Myers, the Earl F. Nelson Professor of Law at the University of Missouri School of Law. Professor Myers presented the case of Transunion v. Ramirez, in which the Court addressed whether members of a class who were flagged by a credit reporting agency as potential terrorists had standing to sue. Despite the existence of a statutory remedy under the Fair Credit Reporting Act, the Court held that the plaintiffs’ injuries were not concrete enough to constitute an injury in fact under Article III because, unlike other class members, the fact that they were flagged as potential terrorists was not communicated to any third party. Professor Myers then shifted focus to the Court’s recent decisions holding that the NCAA’s limit of education-related benefits to student athletes restrains competition and has an anti-competitive effect in violation of antitrust law (Alston), and that business relationships within a state can be sufficient to support specific jurisdiction over a company, even where the product in question was neither manufactured nor sold in that state (Ford).
Last but unquestionably not least, Professor Joan Heminway, the Rick Rose Distinguished Professor of Law at The University of Tennessee College of Law, introduced three distinct opinions (one deciding two cases), each of which dealt, in varying degrees, with corporate conduct. Specifically, they addressed how courts address the presumption of reliance in securities fraud class actions involving claims of misrepresentation relating to generic statements (Goldman Sachs), First Amendment protections for donors to nonprofit organizations (Americans for Prosperity), and the scope of federal jurisdiction under the Alien Tort Claims Act over claims by alien plaintiffs alleging extraterritorial corporate aiding and abetting of child slavery (Nestlé, together with Cargill, decided with it as a companion case).
The presentations were followed by a question-and-answer period that focused on the justices’ holding in the Nestlé case and their sympathetic tone toward plaintiffs in the oral argument in that case, the holding in Americans for Prosperity, and the Court’s recent approach to First Amendment issues more generally, and the seemingly atypical and varied alignments of justices in many of this term’s cases. As in years past, the panel was highly informative and offered a terrific opportunity to learn about some of the Court’s most interesting and important cases from last term.