Does the Threat of Future Copyright Infringement Amount to Irreparable Harm?

Chief among the bundle of rights one obtains in property ownership is the right to exclude others from the use and enjoyment of that property.  This “sole and despotic dominion” that an individual commands over their property is placed in danger, of course, when the property becomes subject to the wants and needs of others.  Absent the owner’s consent (as in the case of licensing) or operation of law (as with adverse possession), a property owner would be able to bring an action for trespass for such intrusions.

A judge holding a defendant liable for trespass perhaps carries the vision of plaintiffs having their rights vindicated, but cases do not end at liability.  The judge must also determine whether further remedies beyond damages are appropriate, including whether a permanent injunction should issue.  Such is a weighty decision touches upon an extraordinary remedy: a court order that a defendant must cease and desist its illegal activity or face punishment for contempt.   That being said, in many property cases, a court order only issuing damages would effectuate a judicial licensing of the behavior.  With that result, the incentives are adjusted such that the right to exclude does not rest with the plaintiff; instead, it is determined only by the extent to which the defendant is willing and able to engage in the trespassing behavior.  As such, the courts have presumptively treated infringement of property rights as worthy of injunctive relief.

That has also been the rule in copyright infringement cases for the last few decades. 

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When a Justice’s Spouse Engages in Political Activity

When Mrs. Virginia Thomas, wife of Supreme Court justice Clarence Thomas, launched a new non-profit organization called Liberty Central earlier this spring, the announcement prompted a firestorm of media coverage. The Los Angeles Times, Washington Post, and numerous other news outlets ran stories discussing the possible ethical issues that may arise. The stories focused on two particular questions: to what extent may the spouses of Supreme Court justices engage in political activity, and when may Justice Thomas’s recusal be necessary if a donor to Liberty Central comes before the Court? Legal ethics experts quoted in the news stories offered brief answers on both counts.

In a short paper recently posted to SSRN, I have endeavored to provide a comprehensive answer to both of these questions. The first conclusion was straightforward: the relevant codes of judicial conduct are limited by their texts to judges – they have no power over spouses. Moreover, numerous advisory opinions confirm the right of judicial spouses to engage in politics. However, a judge must clearly separate himself from the political activity of his spouse.  Judicial recusal is governed by a federal statute. Going through the statute, and the advisory opinions and precedents concerning it, the paper identifies the relevant standard and proposes a framework for evaluating cases that may arise in this circumstance. I conclude that Mrs. Thomas can fully pursue her new organization’s mission without compromising Justice Thomas’s role on the bench.

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Limits to Life: SCOTUS Issues Decision in Graham

The Supreme Court finally issued its long-awaited decision in Graham v. Florida this morning.  And it turns out that the Eighth Amendment may not be so toothless after all: the Court held that sentencing a juvenile to life without parole for a nonhomicide crime violates the Cruel and Unusual Punishment Clause.  Graham received an LWOP sentence for a botched robbery at age sixteen.  The Court overturned Graham’s sentence, holding that states must at least “give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” (24).  Thus, the Court did not preclude life sentences per se for juveniles, but rather focused on the availability of parole:

The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life.  It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society. (24)

Graham breaks a string of defeats in the Court for Eighth Amendment challenges to prison terms.  Although the Court has been quite active in recent years in using the Eighth Amendment to regulate the death penalty, the Court had seemed uninterested in imposing limitations on the use of lesser sentences.  Of course, LWOP for a juvenile robbery is pretty extreme, so it would be premature to infer from Graham that the Court is going to get more involved in regulating long prison terms.

Not suprisingly, Justice Kennedy authored the majority opinion.  He has been the swing Justice in the Court’s recent Eighth Amendment cases, and there was little doubt that he was going to be part of the majority in Graham whichever way it came out.  Slightly more surprising is that Chief Justice Roberts concurred in the judgment, making the final vote 6-3 (instead of the more typical 5-4 in Eighth Amendment cases).  Based on this and a few other recent cases (for instance, with respect to jury-trial rights), it seems to me that Roberts is not as much an automatic vote against  defendants as his predecessor, Chief Justice Rehnquist.  It is also interesting to see the Justice Sotomayor voted with the majority, suggesting that she may adhere to the position of her predecessor (Justice Souter) in supporting robust Eighth Amendment rights.  Would a Justice Kagan do the same?  Justice Stevens was part of several tenuous majorities in this area, meaning that his replacement has the potential to bring about some major changes in the Court’s Eighth Amendment jurisprudence.

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