Original Madden Developer Loses out on Millions in Royalties

Any gamer knows the Madden franchise. It might as well be the only football video game on the market. "Football video game" and "Madden [put any year since 1992 here]" are so synonymous that using the two phrases in the same sentence is probably a little redundant. Being redundant, however, is probably the last thing that Antonick's lawyers will be accused of after this case.

In Antonick v. Electronic Arts, an original developer of the extremely popular video game franchise hoped to obtain a massive amount in past royalties thanks to a “Derivative Work” clause buried in his 1986 contract with Electronic Arts (“EA”). ;While the developer’s intentions seemed good – and whole-heartedly driven by dollar signs in his eyes—his attorney’s execution in this case will leave all ambitious video game developers with an acidic taste in their mouth.

First Rule of Evidence: If You Need It, Introduce It
Back during the infancy of John Madden Football (“Madden”) and EA, Robin Antonick developed the code for the original Madden game designed for the Apple II. Thanks to the success of this version of the game, in 1989, Antonick began working on a Madden version for the Sega and Nintendo consoles. However, a year later EA told him to stop all development because they wanted to go with a more “arcade” feel to their games.
Despite this change in gears by the EA brass, the interface of the game – according to an assistant producer of the original Madden game that took the stand – “looked identical to the Apple II version.” Antonick, believing that the code for the new versions of Madden were derivative works of his original Apple II version, filed ;a lawsuit seeking royalties for every single game in this juggernaut of a franchise.
Unfortunately for Antonick, the expert testimony that his attorney propped the entire case up on crumbled faster than a cookie in the hand of a toddler. Instead of actually introducing the code of the Apple II version and the Sega and Nintendo versions to point out the stark similarities to the interface and coding of the game, Antonick attempted to use testimony to show a jury that the games were substantially similar. ;While it seemed to work after the jury came back with a favorable verdict, the overall outcome was not favorable for Antonick after the judge got his hands on it.

Can’t Pass a Test Without Putting Down an Answer The Ninth Circuit uses a two part test when determining when one work is substantially similar to another.; According to Benay v. Warner Bros. Entm’t, Inc., 607 F.3d 620,;624 (9th Cir. 2010) a plaintiff must prove both substantial similarity under the “extrinsic test” and substantial similarity under the “intrinsic test.” The “extrinsic test” is an objective comparison of specific expressive elements. The “intrinsic test” is a subjective comparison that focuses on whether the ordinary, reasonable audience would find the works substantially similar in the total concept and feel of the works.

Although a jury found that Antonick was entitled to royalties, the district court granted a judgment as a matter of law to EA under the “intrinsic test” because “the jury had no evidence of [the] Apple II Madden or [the] Sega Madden.” The Ninth Circuit affirmed this ruling stating that “our law is clear that expert testimony cannot satisfy a plaintiff’s burden of proof under the intrinsic test.” The court goes on to say that the lay witness testimony of how the games appeared was also useless because the coding of the games was the real issue at hand, not whether or not gamers thought the interface was similar.

After this ruling, it is safe to say that Antonick certainly missed the gravy boat that is the Madden franchise. While he had a good argument that he deserved at least some residual cash for his initial work on the ever-so popular game, his execution of his case was so poorly handled that he will probably wake up with night-sweats thinking about what could have been.; Let’s hope the game developer has another billion dollar coding idea hidden somewhere up his sleeve to make up for this series of unfortunate mishaps.

Ninth Circuit Leave States 'Standing' There With Egg On Their Face

You can’t make an omelet without cracking a couple eggs. In California, you can’t even get those eggs unless the farmers follow the Golden State’s strict Shell Egg Laws.  Egg farmers outside of California are a bit pissed about these laws, trying ever-so-hard to get this law overturn. Six states came together and filed a lawsuit in the Ninth Circuit to challenge the validity of these California’s law. The result was not exactly favorable for these out-of-state farmers.

These Chickens Need Room to Stretch Those Legs

In 2008, California voters adopted a law that stated hens may not be confined for the majority of any day.  In order to be compliant, farmers cannot prevent hens from lying down, standing up, fully extending their limbs, and turning around freely. Two years later, California adopted legislation which mandated that a shelled egg cannot be sold or contract for human consumption in California if the seller knows or should have known that the egg came from a hen that was not housed under these laws.

Missouri got the ball rolling in February 2014 by filing a lawsuit claiming that California’s Shell Egg Law violated the Commerce Clause. The States of Nebraska, Oklahoma, Alabama, and Kentucky and Iowa were later added on as additional plaintiffs because, well, they feared the law, too. Unfortunately, these states failed to qualify the biggest hurdle every lawsuit must clear…standing.

Stop Yawning, Standing Is Dreadful Great

Standing might not be the sexiest ways to have a lawsuit dismissed, but it is highly effective nonetheless.  Heck, some of this country’s landmark cases have been decided strictly on this issue.

The six states advanced several theories on why California’s Shell Egg Laws caused their states injuries in fact. First, the six states allege harm to their egg farmers. Next, they argue that the Shell Egg Laws will cause harmful fluctuations in the price of eggs. Finally, they claim that they will suffer discrimination from the Shell Egg Laws. The three judge panel was hardly convinced in any of the states’ arguments.  The Ninth Circuit ruled that the farmers themselves probably have standing, not the states.  Unless the states can prove actual, not speculative, harm to their states because of these California rules, then this case has no merits to be in front of them.

The Ninth Circuit did, however, provide the states with some wriggle room to bring this action back to court. Although the lower court ruled that this case was dismissed with prejudice, the Ninth reversed that part of the ruling saying that since this is a Subject Matter Jurisdiction issue, it should have dismissed without prejudice. 

While finding a new way to argue standing might be a tall task for these states, we will have to wait and see what eggs-actly happens from here.

Usefulness of Cheerleading Outfits Becomes a Copyright Debate for SCOTUS

The usefulness of cheerleaders at sporting events is debatable. Sure, they can get the crowd pumped up by doing some extravagant tumbles while hooting and hollering team fight songs. But separate the cheerleaders from the game and all you really have is attractive young women in sequenced outfits adding minimal value to the players on the field. The cheerleader's uniform, on the other hand, appears to hold a little more weight when it comes to the usefulness to a copyright.

Last month, the Supreme Court grant certiorari in Star Athletica v. Varsity Brands to determine what is the appropriate test to determine when a feature of a useful article is protectable under § 101 of the Copyright Act? The case lays out 10 different test that are used to determine whether something is a “useful article.” The Supreme Court’s task is to choose the one that works the best.

Stripes, Chevrons, and Zigzags

The opening sentence of the Sixth Circuit’s opinion asks “are cheerleading uniforms truly cheerleading uniforms without the stripes, chevrons, zigzags, and color blocks?” Well, if you are a teenage boy, this is probably the last thing you noticed. However, it is an interesting point. If one was to describe a cheerleader uniform to a time traveler from the 1800’s, how exactly would you do so?

Varsity Brands (“Vasity”) is the largest supplier of cheerleader uniforms through the United States. As most corporations do, Varsity filed copyright protections for several of their cheerleader designs. Star Athletica (“Star”), a rival company, claims that Varsity’s copyrights are invalid because they are unprotectable “design[s] of … useful article[s]. 17 U.S.C. §101 (2012). While the district court agreed with Star, the Sixth Circuit decided that the stripes, chevrons, and zigzags are much more than useful articles. The court held that the Copyright Act protects the “pictorial, graphic, or sculptural features” of a design of a useful article even if those features cannot be removed physically from the useful article, as long as they are conceptually separable from the utilitarian aspects of the article.”

A useful article is defined by the court as an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” The Sixth Circuit lays out nine tests (yes, NINE!) used by the other circuits and, instead of using one of those nine, it then provides its own test. According to the Sixth Circuit, the following series of questions must be answered to determine whether or not an item can be considered a useful article:

1.   Is the design a pictorial, graphic, or sculptural work?

2.   If the design is a pictorial, graphic, or sculptural work, then is it a design of a useful Article?

3.   What are the utilitarian aspects of the useful article?

4.    Can the viewer of the design identify “pictorial, graphic, or sculptural features” “separately from . . . the utilitarian aspects of the useful article?”

5.   Can the pictorial, graphic, or sculptural features” of the design of the useful article “exist independently of the utilitarian aspects of the useful article  from . . . the utilitarian aspects of the useful article? 

Gotta Keep’em Separate?

The court seems to harp on the necessity of whether or not the stripes, chevrons, and zigzags can be separated from the usefulness of the cheerleader uniform.  Since a cheerleader uniform is simply just athletic wear meant to keep the boys and girls jumping up and down in them from overheating, the usefulness of the cheerleader uniform is held mainly in that material. Therefore, the designs placed over this material can be separated from the usefulness of the article and can be receive copyright protection.

Star argues that without the zigzags, chevrons, and what-nots, people would not be able to tell who those super enthusiastic persons on the sideline are. But, when you think about it, what else would those people be? The pom-poms in my mind is a dead-giveaway what these people are trying to do.

While this concept of usefulness can seem alien, the court begs that you think of a chair when thinking about separability. A chair on its own is a useful article because the point of the chair is for it to be used as a place to sit. However, if the chair is littered with designs on the seat and backing, then those designs are considered to be separable and therefore, copyrightable.

Make sense? Probably not. But, SCOTUS will be looking make heads out of what it means to be a “useful article” next fall when the court reconvenes. And if the court continues to grant cases at its current pace, then this might be the most interesting case that SCOTUS nerds will get. 

The Common Law Dedication of Martin's Beach

Beach life and California pretty much go hand-in-hand. With a coast as long as the Golden State's, access to a number of these sandy strips of bikinis, beers, and boards are not super hard to find. However, uncovering hidden beaches off the beaten path is something of a rite of passage for native Californians looking to escape from the tourist hot spots.

Martin's Beach used to be one of these secluded spots that only those "in-the-know" would visit. For decades, the owners of the land (the Deeney’s) leading to Martin's Beach allowed the public to use their private road to enjoy what has been called a "mystical and multi-faceted playground." Signs were put up by the owners on the nearby highway alerting drivers to the pristine locale. The owners of the land were even kind enough to set up public restrooms and a concession shop for these beach goers.

This all changed in 2008 when the land was sold to Sun Microsystems millionaire Vinod Khosla. A couple months after the land transfer signs for the beach were taken down, the access road from the highway to the beach was closed off, and the evil beachGrinch ruin summer for all.

To the surprise of none, surfers were really the first ones to get pissed. Martin's Beach has an epic break (brah!) and a little gate wasn't going to stop these boarders from catching some gnarly tubes. But then the law got involved. 

Friends Don’t Let Friends Give Up
The owners of the property leading into Martin’s Beach ended up being sued in two different law suits. One by the Surfrider Foundation and the other by a group named Friend’s of Martin Beach. While the Surfrider Foundation went to trial and was decided in their favor, the Friend’s of Martin Beach (Friends) suit still thrives on. Thanks, in large part, to a decision made by the First Appellate District of the California Appeals Courts. 

In this case, Friends alleged four theories in which injunctive and declaratory relief should be granted. In short, the theories revolved around 1) a public trust theory, 2) a constitutional theory, a common law dedication theory, and 4) an ancient custom theory. Although the Friends lost three of these four arguments, the one they won allows this case to live yet another day (or in the case of our legal system, a year).  

Deciding the Existence of a Common Law Dedication
In a 3-0 ruling, the California Court of Appeals concluded that Friends alleged sufficient facts to establish a common law dedication claim. The elements of common law dedication are an offer or intent to dedicate and an acceptance. The court believed that there is “little doubt” that the Friends facts could establish a common law dedication if true, and therefore, summary judgment was improper by the trial court.

Friends allege that the original owners of Martin’s Beach offered access to the beach to the public and intended to do so when they put up signs for the road and added a parking lot to their land for the public to use.  By using this road and parking lot, the public accepted this offer and the common law dedication was complete. Since after acceptance, the dedicator cannot revoke, even if the property changes hands, Friends have a pretty strong argument if they can muster enough evidence for the upcoming trial. 

Martin’s Beach LLC argues that since the original owners charged a fee for people to use the road and parking lot that a license, not a common law dedication, was created. The court failed to concur with this argument, mainly because there was very little evidence that this fee was collected every time someone came to the beach. A trial court will now have to decide if a Common Law Dedication was created by the Deeney’s offer and the public’s acceptance. But even if a jury decides this issue in the Friends’ favor, the battle for access to this beach is probably far from over.  

Pending D.C. Circuit Ruling Could Decide Fate of the Open Internet

The internet has morphed from a timed-forum, purchased from compact discs sent directly to your house in spam fashion (thanks AOL) to an everyday necessity that people of the youngest age greatly depend on. Like the little old man hiding behind the curtain in Oz, most people fail to understand how this world wide access to information actually operates. For some, ignorance is bliss. For others, their right to an unabated internet is essential to life.

Each country regulates its internet a certain way, from the very extreme (we are looking at you China) to the completely unfettered. Net neutrality, or Open Internet, is a term that most have heard of but few really understand. As described by Wikipedia, net neutrality is the principle that Internet service providers and governments should treat all data on the Internet the same, not discriminating or charging differentially by user, content, site, platform, application, type of attached equipment, or mode of communication. Think of it as an equal rights movement for internet access.

Opponents of net neutrality threaten to regulate the internet in a manner that instills a significant measure of fear into the online system that we all have come to love. If the companies backing the demise of net neutrality have their way, the days of streaming unlimited movies and TV shows without concerns of throttling could be long gone.

Proponents of net neutrality received a big win when the FCC approved a proposal by FCC Chairman Tom Wheeler to base new Net Neutrality rules on Title II of the Communications Act.  However, the D.C. Circuit will have a say (and perhaps the last say) on whether or not this win will stand when they decide United States Telecom Association v. FCC.

Reclassifying Internet as Telecommunication Services
Most people will remember the days when the internet required user to listen to a high pitched connecting sound just to start surfing the web. Those days are long gone and surfing the web is literally available at every user’s fingertips. While most people don’t think of telephones and the internet as being remotely the same, the FCC has decided to lump the two together to allow the internet to be regulated more equally.

The crucial question in this case before the D.C. Circuit is whether internet providers can be reclassified as “common carriers.”  Although this reclassification may seem arbitrary, the repercussion of the classification is the crux of the argument for opponents to net neutrality. In their brief they argue that “The FCC relies on Chevron deference to support reclassification of broadband Internet access service as a telecommunications service.  No deference is warranted because the plain language and structure of the Act demonstrate that Congress spoke directly to the issue.”

To counter this argument, the FCC brandishes the decision in the Brand X case to show that the reclassification was reasonable. Appeals Court Judge David Tatel, the author of the original case before this court, helped hammer this idea home.

Most of the discussion at oral arguments focused on whether broadband providers were already offering “common carrier” service to their customers. The imposition of common carriage restrictions on internet providers hinges on whether they can be considered “telecommunications services.” This classification varies substantially from the lightly regulated “information services.”  ISPs argue that internet access is properly defined as an information service, but the FCC argues that they have the discretion to make that decision.

According to the three judges faced with deciding this case, the life of this case may rise and fall on this issue of reclassification. Depending on how this court decides this one question, it may make the rest of the case moot and completely kill any hopes that the First Amendment issues mentioned below gets any light of day in this decision.

First Amendment Issues
On what seems like an unlikely claim that will be settled by the D.C. Circuit this time around, the First Amendment question raised by two of the appellants in this case seemed to be swept to the side by the reclassification issues.

In their brief, Alamo argues that the FCC rules violate the First Amendment because broadband providers are speakers since they engage in speech, and they exercise the same editorial discretion as cable television operators in deciding which speech to transmit. The FCC counters by saying that the rules do not impair broadband providers’ First Amendment rights at all because broadband providers are not acting as speakers but instead as conduits for the speech of others. The FCC goes even further stating that even if the First Amendment were implicated, the open Internet rules would easily pass muster.”

The fact that the court devoted only 20 minutes to the entire First Amendment argument and that neither Judge Tatel nor Judge Sri Srinivasan were sold on an infringement of this right makes this issue seem mostly dead in the water.

Supreme Court Bound?
While nothing is for certain when it comes to the Supreme Court, it is most likely that the losing side of this case will at least try to stoke the fires underneath the nine eight justices.  The internet service providers will almost definitely appeal to the highest court if they come out on the wrong end of this one. On the flip side the FCC might appeal the D.C. court ruling, however, it will depend on how far the D.C. Circuit decides to attack this case.

SCOTUS Bracket: #4 Ruth Bader Ginsburg v. #5 Stephen Breyer

The final game of the first round of the unbelievably (un)popular SCOTUS Bracket is finally among us.

Bringing this elongated Elite Eight round to a close is the left-leaning, liberal battle between the Notorious RBG and Stephen Breyer. One has a cool nickname and is pulp culture icon. The other doesn’t have a cool nickname (and if he did it would probably still just be Stephen Breyer) but is definitely one of the more active judges when it comes to oral arguments.

So, without further adieu, let’s get ready to, well, you know….

Courtroom Curiosity
At oral arguments, the first justice to fire off a question tends to get the ball rolling for the other justices to propel their own carefully aimed bullets towards both the sitting duck at the podium and certain justices that may be on the fence. This break in the meticulously prepared intro by the counselor allows the topic to move in any direction the given justices chooses. However, getting the firing squad started and delivering a kill shot are two completely different things.

Ginsburg is quite notorious for being the first to interrupt counsel. Over the past four years, she has finished as the most frequent first questioner three times, only being beaten out in OT2013 by Sonia Sotomayor. However, once that first question is asked, RBG tends to fall back into the shadows. Only once in a blue moon does Ginsburg finish as the top 3 questioner and it is even rarer to see her finish as the most active justice at oral arguments.

On the flip side, Breyer rarely shoots firsts (only twice during the past four years) but once he starts asking questions, he finds it hard to stop. Over the past four terms, Breyer finished in the Top 4 in both the Top Questioner and Top 3 Questioner rankings. On average, Breyer asks 17 questions per argument while Ginsburg tends to ask much fewer (averaging only 10 questions per orals).

Although RBG often gets the fireworks started, Breyer is the justice that keeps the show going. For this reason, Breyer takes this category.

Category Winner: Stephen Breyer

Penning Power
Relentless Ruth commands the attention of the other justices in a meek yet massive way. When it comes to getting justices on her side to concur with an opinion, she definitely possesses an undeniable ability to be persuasive. From OT2011 through OT2013, RBG stacked up an impressive 88.7% in justice concurrence. While her numbers took a bit of a nose dive in OT2014 (73%), this should only be a slight bump in the road after OT2015 is all said and done.

Breyer’s justice concurrence numbers tend to hover around the low 70s. OT2013 was his most persuasive year, putting together a 90.7% in justice’s approval. However, this one outlier of a term will not be enough to compare with the approval ratings that RBG is used to seeing.

Category Winner: Ruth Bader Ginsberg 

Humor
At first glance, it is hard to believe that Stephen Breyer could even be remotely funny. In fact, the Mr. Burn’s lookalike may seem somewhat evil from the exterior. But when it comes to laugh track triggers, this guy is now the front runner to take @SCOTUSHUMOR’s OT2015 crown.

From OT2012 through  OT2014 (and probably even further into the past if the Twitter records went back that far), Breyer has finished second to the Atonin Scalia in this category. Scalia was such a humor force, that often times Breyer would finish a distant second despite averaging 38 questions per term during that span. But now that Scalia’s seat lays vacant, Breyer’s path to the humor crown is in his midst.   Breyer already has 39 laugh tracks in OT2015 and is well ahead of Roberts, who is in second amongst active justices with 19.

RBG, on the other hand, isn’t the jokester when it comes to oral argument. She has tallied one laugh track so far this year and that is only one off of her Term high over the last four years.  While Ginsburg does have humorous side away from the bench (her approval of her "gangsta" nickname is proof alone of that), this off the record jovial   isn’t enough for her to really move the needle for her in this category.

Category Winner: Stephen Breyer 

WINNER: Stephen Breyer 2-1

SCOTUSbracket Round 1: #3 Clarence Thomas v. #6 Samuel Alito

Is it really still only Round 1 of #SCOTUSbracket? Man, this could set the world record for the longest story piece ever…

This week matchup isn’t really much to talk about. Because of the way the rules were written, Clarence Thomas has no real chance of coming out of the first round despite his Top 3 ranking. For those new comers to the SCOTUS landscape, the silent judge never talks at oral arguments. And because of that, he pretty much loses the Courtroom Curiosity and Humor categories without even having to look at the numbers.

So, instead of wasting Alito’s stats on this first round bust, let’s just go ahead and call this one…

Winner: Samuel Alito (by default) 

SCOTUSbracket Round 1: #2 Anthony Kennedy v. #7 Sonia Sotomayor

For those few who are actually following along, the SCOTUSbracket is moving at a snail's pace. At this rate, the tourney will be over by the time the Senate confirms a new SCOTUS member.

This week we take a look at the match-up between one of the court’s more liberal justices against the country’s oh-so-powerful swing vote.

Kennedy, a Ronald Reagan appointee, has been on the nation’s highest court for 28 years and is now the court's most senior member thanks to the passing of Scalia. While many Republicans hoped Kennedy would be a conservative stalwart like the prior Reagan nominees’, Kennedy’s gravitation towards the middle of the ideology spectrum has made him one of the most pivotal members of the bench and to the entire country.

Moving now from the center to the far left, Sotomayor ranks on most ideology charts as the second most liberal justice currently on the bench, just a shade behind the Notorious RBG. With one of the more diverse backgrounds of any member to ever take the SCOTUS bench, Sotomayor channels her Bronx and Puerto Rican roots when asking pointed questions during oral arguments or when writing fiery opinions. She has become one of the court’s most favorite justices, unless you bleed GOP.

With all of that said, let’s get to the tale of the tape.

Courtroom Curiosity
When it comes to courtroom activity, Sotomayor is by-far the most inquisitive between these two justices. From OT2011 through OT2014, Sonia ranked in the top 3 every year in average amount of questions per oral arguments (19.3 Qs/argument). Kennedy, on the other hand, ranked third to last in each of those four years (10.5 Qs/argument).

Kennedy rarely cracks the top spot in frequency of questions asked, averaging a 3.5% as the number one questioner over the past four years. Sotomayor, on the flip side, can’t stop asking questions sometimes. She finished in top 3 as the most frequent questioner and as a top 3 questioner during this time. As a little cherry on top, in 2012, Sotomayor was a top 3 questioner 80% of the time, which is higher than any justice in that span.

While the gap between Sotomayor and Kennedy reduces when you look at the frequency that each justice asks the first question during an oral argument, Kennedy's numbers are not enough to surpass Sonia in any given year. Sonia’s proclivity to bombard counselors with questions makes her a fierce justice to face when bringing a case to the Supreme Court. Because of this highly advanced courtroom curiosity, this category is easy won by Sotomayor.

Category Winner: Sonia Sotomayor.  

Penning Power
A unanimous decision is never easy to obtain. The court is filled with inflated egos, making it a tall task to get all of the justices to agree on an issue. However, finishing a term where all of a justice’s majority opinions are unanimous is almost like a baseball pitcher hurling back-to-back perfect games.

In OT2013, Sotomayor did just that. During that term, Sonia wrote eight majority opinions and all eight were unanimous, allowing her to post a 72-0 score in that term. That stat was so amazing that I had to recheck it three times to make sure my eyes were not deceiving me.

Thanks to his tendency to be the swing vote, Kennedy’s numbers in this category are greatly dwarfed by Sotomayor. Over the past four terms, Kennedy only reached an fellow justice approval rating above 70% once, while Sotomayor’s approval rating never dropped below 75% in that span.

While Sotomayor probably wins this category on her "perfect term" alone, the overall numbers from OT11 to OT14 are staggering and lean heavily in Sonia’s favor. Therefore, this category is also hers.

Category Winner: Sonia Sotomayor 

Humor
With the game all but wrapped up, Sotomayor doesn't have much to lose in this category. While bringing the hammer with a plethora of questions is definitely her go-to weapon, laughter just isn't Sonia's thing. It's a good thing for her that Anthony isn't really pulling in the chuckles either during these oral argument to erase his large deficit in this match-up.

On average the two pull in 9 and 6.75 laughs per term respectively, with Kennedy ranking slightly higher every year since OT12. Thanks to this slight lead in making the funnies, Kennedy steals this category. However, it is a little too late.

Category Winner: Anthony Kennedy


Sotomayor with the first upset of the tournament!

Winner: Sonia Sotomayor 2-1

The Habitual Drunkard and His Immoral Character

When someone is called an alcoholic, it is rarely considered a compliment. But is alcoholism such an iniquitous trait that it justifies the deportation of an illegal alien?

While Congress may think so, the Ninth Circuit considered the idea to be absolutely ridiculous and decided to take a stand on the morality of alcoholism. In Salomon Ledezma-Cosino V. Loretta E. Lynch, the Ninth Circuit Court of Appeals ruled that Congress's inclusion of 'habitual drunkard’ as a type of “bad moral character” in order to limit a non-citizen's eligibility for cancellation or voluntary departure is unconstitutional. Under the guise of the equal protection clause, the court found that there is no rational basis for classifying persons afflicted by chronic alcoholism as persons who lack good moral character.

According to the NIH, roughly 7% of Americans 18 and older suffer from an alcohol use disorder. The majority reasoned that chronic alcoholism is a medical condition that produces an irresistible urge to constantly consume alcohol. Because of this inability to say no to the hooch, the court stated that like any other medical condition, alcoholism is undeserving of punishment and should not be held morally offensive.

Just Put the Drink Down You Sick Alien

After a rather fiery oral arguments, it is no surprise that Judge Clifton sees the issue completely differently than the majority. In his dissent, Clifton list several reasons why Congress has the right to use a habitual drunkard standard if they so choose. First, he says a 'rational basis' hurdle is easily cleared, relying mainly on Congress' plenary powers over aliens.

Clifton then goes on to trash the idea that being a habitual drunkard is even a medical condition. He seems to be of the belief that all alcoholics have the free will to stop drinking whenever they please. To jam his dissent even further down the majority’s throat, he states that even if being a habitual drunkard is a medical condition, Congress has the power to "decide that the country should not accept or harbor sick aliens who might infect others or whose treatment might impose heavy costs."

This could be an interesting opinion to keep tabs on if it gets appealed. Whether or not being a "habitual drunkard" and having "bad moral character" are intertwined should be an issue that hits close to home for most lawyers. Because if the two are synonymous, becoming and staying a lawyer is going to to be awfully difficult for those trying to pass a state bar moral character test.  

SCOTUSbracket Round 1: John G. Roberts v. Elena Kagan

Welcome to the first match-up of the highly-anticipated #SCOTUSbracket!

The initial game in this ever-competitive contest is the highest ranking judge in the nation against the SCOTUS bench's "newest" justice. While these two justices only have a 4-year difference in seniority on the bench, William Rehnquist's sudden departure in 2005 elevated John G. Roberts to the top of the SCOTUS ranking and the top of this bracket's seedings.

John's first decade as the chief justice of the highest court in the land has not been the conservative coercion that the GOP dreamed about. One the flip side, Elena's liberal tendencies seem to be satisfying left wingers with every opinion she authors.

But, enough about the political unbiased sway that these judges have on the laws of the land. Let's get to the stats that matter and see who comes out the victor.

Courtroom Curiosity
Roberts’s courtroom curiosity has progressively diminished throughout the past several years. During oral arguments in 2011, Roberts finished as a Top 3 questioner 66% of the time and as the top questions 24% of the time. Since then his top and top 3 finishes have steadily dropped, all the way to 10% and 3% respectively in the October 2014 term.

But that’s not all. Roberts’ was once asking questions at a 20.3 per oral argument clip back in 2011. However, this has taken an drastic down tick every year since, falling to 13.8 questions per argument. 

Kagan, on the other hand, has produced steady numbers in this category over the past four terms. While it is rare that she will be the top questioner (>5% of the time) or even really finish in the Top 3 (averaging 17.5 Top 3 finishes over the past four terms) among the other judges, her average questions tend to hover around 11.8 per oral argument, which tends to be on the lower end of these standings. 

However, even though the Chief Justice's recent decline in oral argument questions might be a tad concerning, his questioning numbers over the past four years are still much greater than Kagan's.  Therefore, despite the fall from the curious John Roberts of old, his inquisitive nature is still higher than Elena, allowing him to narrowly wrap up this category with a win.

Category Winner: John Roberts

Penning Power
When it comes to authoring opinions that the rest of the SCOTUS bretheren are willing to sign off on, the numbers for both Roberts and Kagan are extremely close. 

Because unanimous majority opinion has been an emphasis for Roberts in recent years, these numbers should not be completely ignored. From the October 2011 Term to the October 2014 term, Kagan has posted 15 unanimous majority opinions. However, Roberts is not that far behind, notching 13 in the same amount of time.

While unanimous opinions are nice, just convincing the majority of your bench-mates to agree with your opinion is usually all that a justice is really looking for. Unfortunately, the difference between Kagan and Roberts in this area is also quite minuscule. Since 2011, Kagan received votes from the other justices 84.7% of the time when she writes an opinions, while the Chief tallied agreements from the other justices 84.2% of the time. 

Although the difference between these two in this category are not mind blowing, the edge definitely leans toward Kagan, however so slightly. Therefore, Kagan evens things up with this category win.

Category Winner: Elena Kagan

Humor

Over the past four terms, the laugh differential between Roberts and Kagan has been enormous. Since the October 2012 Term, Roberts has been accredited with 79 laugh tracks compared to Kagan's 43.  In fact, Roberts has registered at least 9 more laughs per term than Kagan in three of last four terms.

While Kagan has been known to crack a good joke in here writings every now and then (see Cat in the Hat), these clever lines will not be enough to move the needle in her favor. Roberts secures the category and moves on to the next round with this victory. 

Category Winner: John Roberts

Winner:  John Roberts 2-1

SCOTUS BRACKET: Crowning The Best U.S. Supreme Court Justice

Every season, the powers of March Madness hypnotizes this nation into a brain-melting bracket coma. The over-abundance of bracket talk is certainly impossible to ignore. And it is not just college basketball bracket talk that pollutes the airwaves during this time of year. Everything and anything seems to be free game to be transformed into bracket form. 

Fictional Lawyers. Check. 

Disney Films. Yup.

Meats. Why the hell not. 

But where is the bracket love for the SCOTUS bench? With the Supreme Court bench missing a key player for the past two months, the even-numbered sitting justices finally fits perfectly into bracket form. Talk about an Elite Eight! So, let's drag the highest bench in the country through the madness and see who takes home the crown as the best currently sitting SCOTUS justice. 

Seeding

Logically, the justices have to be ranked with the Chief Justice first and the rest following in line by seniority. 

#1: CJ John Roberts

#2: Anthony Kennedy

#3: Clarence Thomas

#4: Ruth Bader Ginsburg

#5: Stephen Breyer

#6: Samuel Alito

#7: Sonia Sotomayor

#8: Elena Kegan

Point Categories 

These categories probably aren’t the best for measuring who is the best sitting justices. But, what are you going to do.  I know people would like to throw politics and ideologies into the mix, but we all know there is no real fun in that. So, you get what you get, and you don’t get upset. 

Courtroom Curiosity 

Sitting at oral arguments like a statue without any interrogation of the issues almost displays a lack of interest in a case that have the potential to effect the entire nation. Questions are key to being liked in any situation. It opens up a window the justice's soul. A curious judges makes a better judge. Sorry, Clarence...

Penning Power  

If Supreme Ambitions taught me anything, when you are judge authoring an opinion is huge. Getting certain justices to jump on the band wagon is even bigger. To overstate it just a tad, the power loaded in these justice's pen makes them gladiators in robes. However, some justice are more like Maximus while others work the tongue better like Commodus. 

Humor

A laugh is worth a days worth of honey. Not sure what that means, but if a justice can make me laugh, then he gets an extra gold star in my book. Thanks to @SCOTUSHUMOR, we can get an excellent jumping off point to which justices deserve the most laughs. Throw in some witty remarks during a dissent and you have comedy gold. Well, law-comedy gold. 

Below is a fillable bracket for anyone that might want to play along. Also, follow us on Twitter to vote which justices deserve to move on. 

Starting this week, we will go match-up by match-up pitting these ever-regal justices against each other. So, don't miss out! 



ROUND 1:

#1 John Roberts v. #8 Elena Kagan
#2 Anthony Kennedy v. #7 Sonia Sotomayor

Three Things To Not-Really-Like About Merrick Garland

Merrick Garland commanded yesterday’s news cycle. Considering the hype surrounded by Obama’s potential nominee and that the nomination of a Supreme Court justice is a pretty unique event, it was well-deserved. However, seconds after President Obama released the ‘d’ from Garland’s name, both sides of the aisle should have felt as if they were given deep wedgies and then socked in the gut.

Republicans, adamant about letting the next president make the nominee, looked at this nominee and said “Hmm, this guy seems like the best we would ever get from a Democratic president. But, it’s way too late to turn back on our word now…Right?”

Democrats, hoping to skew the bench towards an ever-changing liberal majority, heard Garland’s name and said, “What! Talk about a blown opportunity…” While Garland appears to be liberal in many ways, his tendency to gravitate towards the middle is definitely a far cry from what far-left liberals were hoping for.

Although some liberals floating closer to the middle might be happy with Obama’s pick, once the shine of this long-awaited nominee wears off, some will realize that this nominee isn’t really the best person (not principle) to become the next Supreme Court justice.

Here are a couple reasons to not-really-like Merrick.

1. Grand Old Party Gets Its Grand Old Justice

When most people close their eyes and picture a potential Republican SCOTUS nominee, it is most likely going to be an old, white guy, possibly with a top hat and monocle. At the ripe age of 63, Merrick’s potential years on the bench are greatly decreased compared to the Obama’s two other confirmed nominees, Kagan (50 when appointed) and Sotomayor (55 when appointed).

The age of Merrick benefits the Republicans much more than the Democrats. An older justice means a shorter time until that justice retires and can be replaced. Most presidents try to pack the bench with younger judges so that their legacy can live long on the SCOTUS bench after the president has become a punching bag in middle school text books. Garland is the opposite of that.

An elderly judge also raises the potential that the justice will not see issues under the same lens as the younger, more in-touch people of our country. While Garland does not hold some of the extreme values that some Republicans hold, his willingness to straddle the line could come back to hurt Democrats on certain swing vote type issues later down the road.

2. Denying Diversity

As mentioned above, and just in case you couldn’t tell from his picture, Garland is a Caucasian male. Unless you are new to the History of Supreme Court Justices, you know that white dude faces litter this list. The nomination of Garland offers more of the same and the minority community should be pissed, especially when Sri or Kelly were deservedly waiting in the wings.

Obama seized the day with his first two cracks at nominating a Supreme Court justice by bringing more women to the bench. Sotomayor’s Latina background also brings an extra layer of diversity to the bench that should not be underscored. After six years on the bench, her first hand views of “minority life” shed a specific light on many issues that many of the old, white men on the bench will not and could not understand.

The failure of Obama to even try to bring onto the court another diverse justice that truly understands the toils of the middle class is disappointing at the very least.

3. The Poisoning of East Coast Ivy
The Supreme Court is packed with East Coast Ivy League alumni. While it’s never proper to knock a Harvard or Yale law degree, forming a bench that holds so much weight on the direction to which this country moves with a handful of people that went to the same type of school seems asinine.

Hoping that a group of nine justices that were taught from the same curriculum will magically understand the intricacies of life that effect people all the way over on the West Coast is unlikely. And while Kennedy and Breyer do have some Westside connections, this is hardly enough.

Garland, a Harvard grad, is once again more of the same. If presidents can’t move away from this form of cronyism when it comes to SCOTUS nominees, then we are all probably doomed anyways.

Despite NFL Official Admitting Link to CTE, Bullet-Proof League Will Continue to Thrive

Mark this date on your calendars. A top NFL official breaks ranks and finally admits that men crashing heads over-and-over again definitely causes some sort of head trauma. While the conclusion that there is a link between playing football and this mysterious CTE disease is hardly shocking, the fact that the holier-than-thou NFL allowed a member of their brethren to state this openly to the public requires a double-take.

Perhaps there is a more nefarious plan here by the evil-genius commissioner Goddell. Or, perhaps the NFL doctors couldn’t keep their silence anymore with the mounting evidence that kept piling on their desks for the past five years. Or, maybe it was just Will Smith’s emotional request that they tell the truth. Whatever the reason, this admission opens up a plethora of other questions and concerns regarding this undeniably violent sport.

Head Hits Cause Damage? You Don’t Say…
According to the brain research performed by the NFL’s doctors, they found CTE in 90 out of 94 NFL players, 45 out of 55 college players and six out of 26 high school players. For years, the NFL turned a blind eye to the head injuries caused by its sport. Like a smoker claiming he can quit at any time, the NFL denied, denied, denied, that there was any kind of problem with their highly-lucrative game.

Jeff Miller’s admission that there is an “unequivocal link between playing football and CTE” is already creating waves. Hours after this statement, plaintiffs in a proposed settlement regarding a concussion lawsuit against the NFL objected to the terms claiming that this new evidence is a “stark turn” from what was originally agreed upon. But will it be enough to bleed the NFL dry?

Dollar, Dollar Bills
Although this revelation is pretty huge, how will this really affect the NFL in the long run? In short, probably very little. The National Football League is admired by kids and adults alike and the NFL takes full advantage of this

Adults use the league as social entertainment, whether it is drinking while watching the games with others, gambling on these games through bookies and fantasy teams, or both. Kids love the game for what it is. They love playing it (through video games and on the playground), collecting memorabilia related to it, and they love how much enjoyment that their parent’s receive from watching it.

Unfortunately, the injuries caused by the game are just an unfortunate by-product of this consumer good like crust is an unfortunate by-product of a delicious peanut butter and jelly sandwich. We won’t stop eating those PB&J sandwiches just because of that much harder bread-like substance, just like we won’t turn off the TVs just because a few guys get injured every single game.

The NFL should really just change the stars on their logo to dollar signs. From birth to grave, the NFL only wants your money and they entice you to follow them by waiving their own money in front of your face.

The superstars of the league sell to the kids of the world that if you work hard enough you may become a multi-millionaire star if you can crack the ranks of this highly exclusive league. On the flip side, the big wigs of the league provide adults with ways to put their hard earned money back into the league through apparel and not-so-legal daily fantasy sports partnerships.

And although they may have admitted that football and brain injuries are (somewhat) synonymous, most people will most likely do what the NFL did for years and turn a blind eye to this fact. While this “new” revelations may deter some parents from signing consent forms for their children, many more will sign away the safety of their loved ones with hopes of striking it rich one day through the “help” of this almighty organization.

These steps taken by the NFL might have been the right thing to do, however, it probably won’t be enough to stop the waves of the willing that put their lives at risk for this entrancing sport.


Related Resources:

• What is CTE? Brain Injury Research Institute] 
• NFL acknowledges, for first time, link between football, brain disease [ESPN] 
• Don’t Applaud the NFL for Admitting (Sort of) That Football Leads To Brain Damage [Time]

When Excessive Force Isn’t Excessive Force

After less than a day of deliberations, a San Francisco jury came to the conclusion that four police officers did not use excessive force when firing at least 48 rounds into Alex Nieto. This begs the questions, what is excessive force if 48 bullets to stop one person is not?

The facts of this case are nothing new. In this most recent version of this story, the police officers fatally shot a young man after the officers mistook a stun gun for an actual gun. Before firing at Nieto, the officers requested that he put his hands up. Rather than follow the officers orders. Nieto pulled out a stun gun from his pocket and this tragic incident ensued.

Everyone, Shoot to Kill

From the police point of view, it could be understandable that their lives were in danger when Nieto refused to listen to their commands and immediately reached for a gun. To the officers, this act by Nieto raised extreme safety concerns.  

However, with four officers on the scene, was it really necessary for each officer to fire an average of 12 bullets each at the victim? But a jury saw the barrage of bullets as a necessary evil given the situation.

Excessive force will be hard to define following a case like this. If 48-plus bullets to stop one man doesn’t seem excessive to a jury, then where is the line drawn. While police safety is extremely important in situation like this, Nieto’s stun gun could not have been confused for a high-powered assault weapon that would do serious damage to a group of armed police men.

In the mind of Nieto’s family and many others around the country, one bullet from each officer would probably suffice to reduce any apparent threat that might be brewing. But 48 shots? Forty-eight of anything seems pretty excessive, especially when it comes to stopping one man with a gun.

Related Links:

• Jury in Nieto trial finds SF cops did not use excessive force [SFGate]
• What Is Excessive Force? [ABC News]
• Police Misconduct and Civil Rights [FindLaw]

Welcome to the Ex Parte Party!

Welcome to the Ex Parte Party!

Legal blogs are really a dime a dozen these days. However, what’s the harm in adding one more? The Ex Parte Party focuses its blog on legal stories affecting all Americans, whether they want to believe it or not. Our writers take a stance on these important issue and blog about them from one side.

Please come and visit this blog frequently to see what we are cooking. This party can’t be party without a good reader base. So, come join the party and don’t worry about bringing your own booze.

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