Groff v. DeJoy

Issues

Is the Hardison test for undue hardship, which excuses an employer from accommodating a religious employee if the religious accommodation imposes “more than a de minimis cost,” consistent with Title VII? Can USPS demonstrate undue hardship solely by showing that the accommodation would burden the employee’s coworkers with additional work on Sundays?

This case asks the Supreme Court to reconsider the appropriate standard of undue hardship that an employer must demonstrate before it may be excused from its duty to reasonably accommodate an employee’s religious belief or practice under Title VII of the Civil Rights Act of 1964. This case also asks the Supreme Court whether Title VII permits employers to demonstrate undue hardship solely by showing that any accommodation would burden other employees. Gerald Groff contends that the Hardison de minimis test was incorrect and should be overruled and that the plain language of Title VII requires employers to prove that their businesses directly suffered undue hardship. DeJoy argues that the Hardison de minimis test should be reaffirmed but clarified and that burdens on coworkers can support a finding of undue hardship. The outcome of this case has significant implications for the protection of religious practice and belief in the workplace.

Questions as Framed for the Court by the Parties

(1) Whether the court should disapprove the more-than-de-minimis-cost test for refusing religious accommodations under Title VII of the Civil Rights Act of 1964 stated in Trans World Airlines, Inc. v. Hardison; and (2) whether an employer may demonstrate “undue hardship on the conduct of the employer’s business” under Title VII merely by showing that the requested accommodation burdens the employee’s coworkers rather than the business itself.

Under Title VII of the Civil Rights Act of 1964, it is illegal to discriminate against someone with respect to their “compensation, terms, conditions or privileges of employment” because of their religion. Groff v.

Acknowledgments

The authors would like to thank Professor Stewart Schwab for his guidance and insights into this case.

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Counterman v. Colorado

Issues

Is speech a true threat, unprotected by the First Amendment, only when the speaker intended it as threatening, or is it enough for the government to show that a reasonable person would find the speech threatening?

This case asks the Supreme Court to determine whether “true threats,” which are unprotected by the Free Speech Clause of the First Amendment, may be established under a subjective or objective test. Billy Raymond Counterman argues that historical common law practice and Supreme Court precedents require that a speaker subjectively know or intend their speech to be threatening in order for the speech to be a “true threat” unprotected by the First Amendment. On the other hand, Colorado argues that a context-driven objective test is supported by precedent and permissible under the First Amendment. This case has implications for the balance between protecting people from the harmful effects of threatening speech and preventing unjust censorship of political, religious, and artistic expression.

Questions as Framed for the Court by the Parties

Whether, to establish that a statement is a “true threat” unprotected by the First Amendment, the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective “reasonable person” would regard the statement as a threat of violence.

In 2014, a singer-songwriter named C.W. received a Facebook friend request from Billy Raymond Counterman. People v. Counterman at 1042-43. Over the next two years, Counterman proceeded to send her direct messages that C.W. found “weird” and “creepy.” Id. at 1043. C.W. never replied to any of the messages and repeatedly blocked Counterman on Facebook to prevent him from messaging her further, but he continued making new accounts and messaging her.

Acknowledgments

The authors would like to thank Professor Nelson Tebbe for his guidance and insights into this case.

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United States v. Hansen

Issues

Are 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), which ban encouraging or inducing unlawful immigration for commercial advantage or private financial gain, unconstitutionally overbroad in violation of the First Amendment?

This case asks the Court to analyze 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), to determine whether statutes criminalizing “encouragement or inducement” of immigration violations violate the First Amendment. The United States argues that subsection (A)(iv) is constitutional because solicitation and facilitation of illegal actions is not protected under the First Amendment. The United States further states that subsection (A)(iv) primarily punishes conduct rather than speech, and that subsection (A)(iv) cannot be challenged by an individual who was prosecuted under § 1324(a)(1)(B)(i). Hansen counters that subsection (A)(iv) unconstitutionally prohibits abstract advocacy of illegal action. Hansen also argues that subsection (A)(iv) punishes large amounts of protected speech in addition to conduct, and that Hansen was convicted under both subsection (A)(iv) and subsection (B)(i). This case touches on important questions regarding free speech, immigration advocacy, and state criminal statutes.

Questions as Framed for the Court by the Parties

Whether the federal criminal prohibition against encouraging or inducing unlawful immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional on First Amendment overbreadth grounds.

Helaman Hansen started his own immigration advising service and began to charge individuals for his services in October of 2012. United States v. Hansen at 1105. During the course of the program, Hansen would provide advice to undocumented immigrants on how to obtain United States citizenship. Id.

Acknowledgments

The authors would like to thank Professor Nelson Tebbe for his insights into this case.

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Smith v. United States

Issues

Must a criminal defendant be acquitted of a charge when the trial venue for that charge was improper?

This case asks the Supreme Court to decide the appropriate remedy for prosecuting a criminal defendant in an improper venue—specifically, whether the defendant must be acquitted. Smith argues that a determination of improper venue must be treated as an acquittal that bars the re-prosecution of the same defendant for the same offense. The United States responds that venue determinations are not questions of factual innocence or guilt and are therefore properly remedied by retrial. This case has significant implications for upholding the constitutional right of criminal defendants to be tried in a proper venue and preventing prosecutorial misconduct.

Questions as Framed for the Court by the Parties

Whether the proper remedy for the government’s failure to prove venue is an acquittal barring re-prosecution of the offense, as the U.S. Courts of Appeals for the 5th and 8th Circuits have held, or whether instead the government may re-try the defendant for the same offense in a different venue, as the U.S. Courts of Appeals for the 6th, 9th, 10th and 11th Circuits have held.

Petitioner Timothy Smith is a software engineer and avid fisherman. United States v. Smith at 1238. While living in Alabama, Smith used his computer skills to obtain data from the website of a business called StrikeLines without paying for them.

Acknowledgments

The authors would like to thank Professor John Blume for his guidance and insights into this case.

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Samia v. United States

Issues

Is a criminal defendant’s Sixth Amendment Confrontation Clause right violated by allowing into evidence a co-defendant’s redacted out-of-court confession that immediately incriminates the defendant due to the surrounding context?

This case asks the Supreme Court to determine whether admitting a co-defendant's redacted out-of-court confession that immediately inculpates a defendant based on the surrounding context results in a Confrontation Clause violation. Adam Samia was convicted of murder and other criminal charges at a joint trial after the United States introduced as evidence the redacted confession of Samia’s co-defendant that mentioned and described an accomplice. Samia argues that admitting his co-defendant’s confession violated his Sixth Amendment Confrontation Clause right because the jury likely inferred that he was the unidentified accomplice in his co-defendant’s confession. Samia asserts that under the Supreme Court’s decision in Bruton v. United States, his co-defendant’s confession should have been excluded. The United States counters that no Sixth Amendment violation occurred, and the co-defendant’s confession was properly admitted because, consistent with Bruton, all references to Samia were redacted and a limiting instruction was given. This case has significant implications for the role of trial judges as gatekeepers, prosecutorial discretion and power, and the scope of protection the Sixth Amendment provides.

Questions as Framed for the Court by the Parties

Whether admitting a co-defendant’s redacted out-of-court confession that immediately inculpates a defendant based on the surrounding context violates the defendant’s rights under the Confrontation Clause of the Sixth Amendment.

Adam Samia was employed as a security guard and, in 2011, traveled to the Philippines to work for a company called Echelon Associates. Brief for Petitioner, Adam Samia at 8. Echelon was a front company for the operations of Paul LeRoux, a South African national who ran a global criminal enterprise. Id.

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Polselli v. Internal Revenue Service

Issues

Do the notice requirements related to an Internal Revenue Service summons on third parties apply only when the delinquent taxpayer has an interest in the records, or to all third-party summons for records?

This case asks the Supreme Court to determine whether the notice requirements of I.R.C. § 7609(c)(2)(D)(i) apply only when a delinquent taxpayer has a legal interest in the summonsed records, or if they apply broadly to summons issued for anyone’s records whenever they could be helpful in collecting a delinquent taxpayer’s liability. Hanna Karcho Polselli argues that the textual interpretation of the provision supports a legal interest requirement because such a reading gives meaning to other provisions in the statute. The Internal Revenue Service (“IRS”) counters that such a requirement is contrary to both the text of the statute and Congressional intentions when enacting the statute. The outcome of this case will determine the extent to which the privacy of the general public is protected from the government’s ability to summons information in its investigation and collection of tax liability.

Questions as Framed for the Court by the Parties

Whether the exception in I.R.C. § 7609(c)(2)(D)(i) to the notice requirements for an Internal Revenue Service summons on third-party recordkeepers applies only when the delinquent taxpayer owns or has a legal interest in the summonsed records, as the U.S. Court of Appeals for the 9th Circuit has held, or whether the exception applies to a summons for anyone’s records whenever the IRS thinks that person’s records might somehow help it collect a delinquent taxpayer’s liability, as the U.S. Courts of Appeals for the 6th and 7th Circuits have held.

The Internal Revenue Service (“IRS”) determined that Remo Polselli had underpaid his federal taxes by over $2 million throughout the course of a decade. Polselli v. United States Dep’t of Treasury-Internal Revenue Serv., at 620. After beginning an investigation to locate Polselli’s assets, the IRS determined that Polselli had used other legal entities in an attempt to prevent asset collection. Id.

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Lora v. United States

Issues

Does the prohibition on concurrent sentences in 18 U.S.C. § 924(c), which criminalizes using or possessing a firearm to commit crimes of violence or drug trafficking crimes, apply to defendants convicted under 18 U.S.C. § 924(j), which covers defendants who cause death through use of a firearm?

This case asks the Supreme Court to consider whether 18 U.S.C. § 924(j) is subject to 18 U.S.C. § 924(c)’s prohibition on concurrent sentences. 18 U.S.C. § 924(c) criminalizes using or possessing a firearm to commit a crime of violence or drug trafficking crime. To violate 18 U.S.C. § 924(j), an individual must, in the course of violating 18 U.S.C. § 924(c), use a firearm to cause the death of another person. Petitioner Efrain Lora argues that 18 U.S.C. § 924(c)(1)(d)(ii), which bars courts from sentencing defendants to concurrent terms of imprisonment, applies only to convictions under § 924(c) and not to convictions under § 924(j). Respondent the United States argues that, because § 924(j) can only be violated by also violating § 924(c), a sentence under Section 924(j) qualifies as a conviction under § 924(c) and must therefore also be subject to its sentencing requirements. This case has significant implications for federal sentencing law, including judicial discretion in sentencing.

Questions as Framed for the Court by the Parties

Whether 18 U.S.C. § 924(c)(1)(D)(ii), which provides that “no term of imprisonment imposed … under this subsection shall run concurrently with any other term of imprisonment,” is triggered when a defendant is convicted and sentenced under 18 U.S.C. § 924(j).

In 2002, Efrain Lora was trafficking narcotics in the Bronx. United States v. Lora at 1. In collaboration with four co-conspirators, he decided to kill Andrew Balcarran, a rival drug dealer, over threats Balcarran had made towards Lora and his co-perpetrators regarding their drug territory. Id. On the day of the murder, Lora acted as a scout.

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Amgen Inc. v. Sanofi

Issues

Should the enablement requirement of a patent claim focus on whether the disclosures simply enable skilled people in the field to “make and use” the claimed invention or whether the disclosures accurately enable the “full scope” of the invention – all variations of the invention that fall within the patent claim’s description of the invention; and, would a relatively easy trial-and-error procedure equate to undue experimentation?

This case asks the Supreme Court to clarify whether Amgen’s disclosure of common techniques – a trial-and-error procedure and amino acid substitution technique – is sufficient to satisfy the enablement requirement for Amgen’s patent claim over all antibodies that bind to PSK9 protein and block PSK9 protein’s ability to bind to LDL receptors. Amgen argues that the focus of the enablement standard should be on whether the disclosure leads people to “make and use” the claimed invention and that common techniques do not amount to undue experimentation. Sanofi counters that the disclosures should be specific for broad patent claims and that Amgen’s trial-and-error techniques amount to undue experimentation. This case has significant implications on future innovation in the pharmaceutical industry and the patent law system.

Questions as Framed for the Court by the Parties

Whether enablement is governed by the statutory requirement that the specification teach those skilled in the art to “make and use” the claimed invention, or whether it must instead enable those skilled in the art “to reach the full scope of claimed embodiments” without undue experimentation—i.e., to cumulatively identify and make all or nearly all embodiments of the invention without substantial “time and effort.” 

Heart disease and cholesterol named elevated low-density lipoprotein (“LDL”) are correlated. Amgen Inc. v. Sanofi, Aventisub LLC. at 1082. When cholesterol is in the blood stream, the LDL receptors remove LDL cholesterol. Id. And the degradation of LDL receptor is regulated by an enzyme named proprotein convertase subtilisin/kexin type 9 (“PCSK9”). Id. at 1082–83.

Acknowledgments

The authors would like to thank Professor Oskar Liivak for his guidance and insights into this case.

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Jack Daniel’s Properties, Inc. v. VIP Products, LLC

Issues

Does the humorous use of another’s trademark as one’s own on a commercial product receive heightened First Amendment protection, and is such use “noncommercial” and therefore immune from a dilution by tarnishment claim?

Jack Daniel’s Properties, Inc. demanded that VIP Products stop selling a dog toy called “Bad Spaniels,” a toy in the shape of a Jack Daniel’s whiskey bottle but with dog-related alterations to the name and label. The issue is whether the “Bad Spaniels” toy should receive heightened First Amendment protection as a form of expressive conduct or whether courts should analyze such satirical products under the traditional trademark infringement test of the Lanham Act. Additionally, the Supreme Court must consider whether humorous use of another’s trademark should be considered a “noncommercial” use and therefore be immune from a dilution by tarnishment claim. Jack Daniel’s contends that the Ninth Circuit’s endorsement of the Second Circuit’s likelihood-of-confusion test undermines the purpose of the Lanham Act and that “Bad Spaniels” violates the Lanham Act’s anti-dilution provision. VIP Products counters that the Second’s Circuit’s test fills in gaps in the Lanham Act and is widely accepted by lower federal courts; and, it further contends that the Lanham Act’s anti-dilution provision amounts to unconstitutional viewpoint discrimination. The decision in this case will affect the rights of trademark holders, as well as the protections of those whose political, social, and artistic work utilizes the trademarks of others.

Questions as Framed for the Court by the Parties

(1) Whether humorous use of another’s trademark as one’s own on a commercial product is subject to the Lanham Act’s traditional likelihood-of-confusion analysis, 15 U.S.C. § 1125(a)(1), or instead receives heightened First Amendment protection for trademark-infringement claims; and (2) whether humorous use of another’s mark as one’s own on a commercial product is “noncommercial” and thus bars as a matter of law a claim of dilution by tarnishment under the Trademark Dilution Revision Act, 15 U.S.C. § 1125(c)(3)(C).

VIP Products, LLC (“VIP”) sells dog toys that parody well-known beverage brands on its website, MyDogToy.com. VIP Prods. LLC v. Jack Daniel’s Props. at 1172. These products, called “Silly Squeakers,” are in the shape of beverage bottles and cans but contain dog puns and other alterations.

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Coinbase, Inc. v. Bielski

Issues

Is a district court deprived of jurisdiction to proceed with litigation pending appeal when a non-frivolous appeal is filed in response to a denial of a motion to compel arbitration?  

This case asks the Supreme Court to consider whether an appeal of an order denying a motion to compel arbitration automatically strips the district court of its jurisdiction to continue the litigation on the merits of the case pending the results of the appeal. The Third, Fourth, Seventh, Tenth, Eleventh and D.C. Circuits have all held that district courts are deprived of jurisdiction in this situation, while the Second, Fifth, and Ninth Circuits have held the opposite. Coinbase, Inc. argues that the “Divestiture Rule” applies here—the district court is divested of jurisdiction pending an appeal of a motion to compel arbitration. Abraham Bielski counters that the traditional discretionary test applies, which grants the district court the discretion to grant or deny a stay of the proceedings until the appeal is resolved. This case touches on important questions regarding judicial economy, economic efficiency, and the treatment of arbitration agreements in relation to other contracts.

Questions as Framed for the Court by the Parties

Whether a non-frivolous appeal of the denial of a motion to compel arbitration ousts a district court’s jurisdiction to proceed with litigation pending appeal.

Coinbase, Inc. (“Coinbase”) is a cryptocurrency exchange platform, which stores cryptocurrency for account holders in digital wallets. Bielski v. Coinbase, Inc. at 1. Abraham Bielski (“Bielski”) created an account with Coinbase and set up a digital wallet on the platform in 2021. Id. at 2.

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