....LawPundit

"Terry v. Ohio expanded the right of police officers to "stop and frisk" individuals whom they deem to be suspicious....

By an 8-1 vote, the Supreme Court upheld the validity of the stop and frisk practice....

[T]he "Terry type search" became the standard by which police officers could measure the lawfulness of searches performed without obtaining a warrant."

"On February 24, 1969 the Court ruled 7-2 that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

The Court ruled that the First Amendment applied to public schools, and school officials could not censor student speech unless it disrupted the educational process. Because wearing a black armband was not disruptive, the Court held that the First Amendment protected the right of students to wear one."

"To state a Section 1 claim ... the plaintiff must allege facts "plausibly" suggesting the existence of a conspiracy. This "plausibility" standard, while not a "probability" standard, requires "enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement....

The Court ... explained that Conley v. Gibson’s requirement that the complaint "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests" is critical. "[G]rounds," the Court wrote, "requires more than labels and conclusions, and a formulaic recitation of the elements of a case of action will not do." In short, some factual allegations must accompany the elements of a claim."

"[T]he Supreme Court ruled in Morse v. Frederick ... that Deborah Morse, a high school principal in Alaska, did not violate the free speech rights of one of her students, Joseph Frederick, when she confiscated a 14-foot banner that Frederick displayed at a school event, which banner bore the phrase, “BONG HiTS 4 JESUS,” and when she suspended Frederick for not complying with her directive to take the banner down....

The guiding case with respect to this school speech issue is Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969). In that case the Supreme Court allowed students to wear black arm bands in protest of the Vietnam War. The Court ruled that unless the speech [the wearing of the armbands] would “materially and substantially disrupt the work and discipline of the school,” then the conduct was protected under the First Amendment. In that case the students’ conduct prevailed over the school administrators. But in the case of the “BONG HiTS 4 JESUS” banner, the principal said that the banner was taken down because she thought that it promoted illegal drug use. The student denied that this was his intent, and a close analysis of the wording yields uncertainty about what the phrase means. But the majority of the Supreme Court held (and correctly, in my opinion) that the principal’s “on the spot” action to confiscate the banner was a “reasonable” action for her to take in controlling student expressions that could contribute to dangerous conduct."

"1. Does Gonzales v. Raich, 545 U.S. ___ (2005), 125 S. Ct. 2195, Slip Op. 03-1454, invalidate the Oregon statutes authorizing the operation of the Oregon Medical Marijuana Program?

No. Raich addresses a narrow constitutional question concerning the power of the federal government to regulate intrastate activity under the Commerce Clause. It does not invalidate the Oregon Medical Marijuana Act (Act), ORS 475.300 to 475.346.

Raich holds that Congress has the authority to prohibit the wholly local cultivation of marijuana even if it is used for medicinal purposes pursuant to California law. Precipitating the lawsuit, federal law enforcement officials in California had seized and destroyed an individual’s cannabis plants, after county officials had concluded that her cultivation of the plants and use of marijuana was lawful under California’s medical marijuana law. The plaintiffs in Raich sued to have enforcement of the Controlled Substances Act (CSA), 21 USC § 801 et.seq., the law under which the federal officials had acted, declared unconstitutional when applied to the intrastate manufacture and possession of marijuana for medical purposes pursuant to California law. Raich, slip op at 12. Because the CSA classifies marijuana as a Schedule 1 controlled substance, with no "currently accepted medical use," its manufacture, distribution or possession is a federal crime. Id. at 11.

The Court concluded that the CSA, as applied to the circumstances of the case, is a valid exercise of Congress' power under the Commerce Clause because Congress had a rational basis upon which to conclude that production of marijuana for local, personal consumption "has a substantial effect on supply and demand in the national market." Raich, slip op at 16, 19. According to the Court's analysis, there being a number of states authorizing the medical use of marijuana only strengthens its conclusions as to congressional power: "Congress could have rationally concluded that the aggregate impact on the national market of all the transactions exempted from federal supervision is unquestionably substantial." Id. at 30.

However, Raich does not hold that state laws regulating medical marijuana are invalid nor does it require states to repeal existing medical marijuana laws. Additionally, the case does not oblige states to enforce federal laws. Because these issues of the relationship between federal and state authority were not relevant to the case, they are not addressed in the Court’s opinion."

"Twenty-five years after the release of Roy Orbisonís song, "Oh Pretty Woman", 2 Live Crew wrote a vulgar parody satirizing the famous rock ballad. Acuff-Rose Music, Inc., the owner of the copyright for the song, brought an action against Luther Campbell, the leader of the band 2 Live Crew, for copyright infringement. At issue in this case was the scope of the fair use provision of the Federal Copyright Act, which specifically permits unauthorized use of a work to criticize and comment upon the work. Ultimately, the Supreme Court examined whether 2 Live Crew's commercial parody was indeed a fair use of the original song within the meaning of the Federal Copyright Act."

"Campbell v. Acuff-Rose Music, Inc. is probably the seminal case for the modern application of the fair use doctrine. After years of neglect languishing in the back waters of intellectual property, the fair use doctrine received the spotlight from the Supreme Court in 1994. The lightning rod was 2 Live Crew (no stranger to Constitutional controversy) and their allegedly parodic use of the "Pretty Woman" song...."

"According to the Roe decision, there is a constitutional right to privacy, guaranteed by the Due Process Clause of the Fourteenth Amendment, which disallowed most existing state and federal restrictions on abortion in the United States. Roe v. Wade is one of the most controversial and politically significant cases in U.S. Supreme Court history."

"[T]he landmark abortion rights case, Roe v. Wade ... challenged a Texas law prohibiting all but lifesaving abortions. The Supreme Court invalidated the law on the ground that the constitutional right to privacy encompasses a woman's decision whether or not to terminate her pregnancy. Characterizing this right as "fundamental" to a woman's "life and future," the Court held that the state could not interfere with the abortion decision unless it had a compelling reason for regulation. A compelling interest in protecting the potential life of the fetus could be asserted only once it became "viable" (usually at the beginning of the last trimester of pregnancy), and even then a woman had to have access to an abortion if it were necessary to preserve her life or health."

"Twenty years ago, the Supreme Court decided a trilogy of cases on summary judgment. These cases have had a profound impact on federal litigation. Empirical data presented in this article demonstrate that federal courts have cited these three cases more than any Supreme Court decisions in history. Celotex Corp. v. Catrett is widely recognized as the most significant decision of the trilogy, both because it expanded the availability of summary judgment and because it remains the Court's most current instruction on how burdens are allocated between the party seeking and the party opposing judgment."

"This standard has been articulated by the Supreme Court in what is commonly referred to as the Celotex trilogy. These cases stand for the proposition that an inadequate showing cannot defeat a moving party's competent motion for summary judgment. In Celotex Corp. v. Catrett ... the court stated " ...the burden on the moving party may be discharged by. .. pointing out. ..that there is an absence of evidence to support the nonmoving party's case." In Anderson v. Liberty Lobby, 91 L.Ed.2d 202, 212 (1986) (public figure libel action), the court defined a genuine issue of dispute as one in which " ...a reasonable jury could return a verdict for the nonmoving party. " The court elaborated: " As [cited cases] indicate, there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is not significantly probative, summary judgment may be granted...." And in Matsushita Elec. Ind. v. Zenith Radio, 89 L.Ed.2d 538, 552 (1986) (antitrust conspiracy case), the court stated: "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial'...." [emphasis added]

Since the Celotex trilogy, the above standard has been used throughout the federal system."

"An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee....

When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence.... The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."

"So, here is a quick summary of employer vicarious liability under Ellerth:

• The plaintiff carries her burden by proving that a supervisor committed hostile environment sexual harassment.
• If the employee proves that she suffered a tangible employment action, the employer is vicariously liable.
• If the employee did not suffer a tangible employment action, the employer may avoid vicarious liability by pleading and proving the two element affirmative defense."