Legal Docket: Jail without a trial

NICK EICHER, HOST: It’s Monday morning and a brand new work week for The World and Everything in It. Today is the 11th of March, 2019. Good morning, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard.

Before we get started today, I want to tell you about a fun, new project we’re working on. We’re calling it The World and Everything in It Live. We’ll be traveling to locations around the country to meet you in person, and the first two are officially on the calendar.

EICHER: Right! We’ll be in Raleigh, North Carolina, Friday night, April 12th, just a month away. And on Friday night, May 3rd, in Dallas, Texas.

We are creating a live program in which we’ll explore with you the history of journalism and how it relates to what we do today. We’ll talk about the news media and how you can be more discerning about what you see, hear, and read—all with a view not to conform to this world but to bring about transformation by the renewal of the mind.

We’ll have a Culture Friday style interview with a local guest analyst. I’ll be there. Mary will be there, along with some of our colleagues from The World and Everything in It, and some of the staff from WORLD.

But I think the big highlight will be the opportunity for live listener feedback. We will take your questions and have the chance to dialogue directly with you.

REICHARD: It will be so much fun to meet you and shake hands and take pictures and just share an evening of good fellowship. We have details online at Look to the top menu under “Engage,” there’s a pull-down menu. Select “Live Events” and you’ll see details both for Raleigh and Dallas, and you can make your reservation. It’s free, but you do have to claim your seat.

EICHER: The Raleigh event is at The Summit Church, North Raleigh Campus, and we’re holding the Dallas event at Dallas Baptist University, both terrific locations. We’ve gone ahead and committed to these first two, but we hope to do many more at many different locations around the country.

We don’t exist here at WORLD merely to produce and distribute content. Our goal is to connect with you and inspire you to think biblically about all kinds of content you’re bombarded with on a daily basis.

REICHARD: We’re designing these events to get you fired up about that and, really, to get to know you better, and provide venues for you to get to know fellow listeners and readers in your communities, too.

EICHER: So claim your seats at, look for the pull-down menu labeled “Engage,” select “Live Events,” and you’ll find all the details there. So looking forward to this.


Well, the Supreme Court handed down three rulings last week.

In the first case, a seven-justice majority upheld the broad latitude of the Internal Revenue Service to determine what’s taxable. This case centered around definitions set forth in the Railroad Retirement Tax Act.

It involved compensation for an injured worker, and the argument was over whether that payment was taxable compensation. The worker argued it wasn’t. The railway company argued it was.

The high court simply sided with the way IRS had interpreted compensation for years. It includes payment for absence from work.

Curiously, the majority opinion didn’t have a lot of analysis about IRS or agency interpretations, although the dissent did.

That’s a big deal, deferring to an executive agency like that. The doctrine is known as Chevron deference, and it’s led to what many see as a runaway administrative state, accountable to no one.

EICHER: The other two rulings dealt with copyright disputes.

One question sought to clarify when a party can sue for copyright infringement: after merely filing the paperwork with the Copyright office, or after actual registration is received?

A unanimous bench ruled you need the actual registration in hand. The court did acknowledge that staffing and budget constraints gum up the process and it takes an awfully long time these days. But it’s the job of Congress to fix it.

This is another in a series of recent pointed remarks aimed at Congress to do its job, and a shot across the bow that the courts aren’t going to clean up congressional messes.

REICHARD: The second copyright question asked what expenses can the winner of a copyright dispute recoup from the loser? Answer: Only those categories of expense outlined in the relevant law.  And, to the point of the litigation, those categories do not include expert-witness fees, e-discovery expenses, and jury-consultant fees.

Also of note is a dispute the justices decided not to take, at least for now: whether churches are eligible for public funds meant for historic preservation. This case arose in New Jersey where the state Supreme Court excluded churches from these funds solely because they are religious.

Justice Kavanaugh wrote that this exclusion is “pure discrimination against religion.” But he added that the case isn’t ripe yet, that the high court needs to wait for further development of facts and law in the lower courts.

EICHER: Now on to three cases argued last month.

And let’s begin with a little refresher in basic civics.

The Fifth Amendment to the U.S. Constitution guarantees our right to due process of law. The Sixth Amendment grants us the right to a trial by jury if we’re charged with a crime.

In criminal cases, prosecutors have the burden of the highest standard of proof: the standard known as “beyond a reasonable doubt.” And the government has to prove every element of a crime to prevail.

The standard is substantially higher than what’s required in non-criminal cases, that of “preponderance of the evidence.” That just means “more likely than not.”

REICHARD: Now, it’s important to establish those principles, because my first case involves a defendant who is a decidedly unsympathetic character. His name is Andrew Haymond and he has what sounded like a pretty strong case that the state of Oklahoma is violating his rights.

Here’s where the unsympathetic part comes in: the defendant had served time for possession of child pornography. But when probation officers conducted a surprise search of his apartment, they found new pornographic images on his phone. This violated the terms of his supervised release.

Using these new facts, a judge sent him back to prison.  

But he did so without convening a jury and without making a finding of guilt “beyond a reasonable doubt.”

Government lawyer Eric Feigin argued doing things this way is necessary to protect the public.

Justice Neil Gorsuch, in his understated manner, criticized Feigen.

GORSUCH: Why is the government so anxious to avoid having the involvement of citizens in this process? It would be a rather simple thing to convene a jury, wouldn’t it?

Feigin countered (a) that it’s really not that simple a thing, and (b) that a jury isn’t involved in post-judgment aspects of a case.

But Justice Gorsuch came right back at him with a jab at Congress for ditching the old parole system and replacing it with supervised release instead.

GORSUCH: But historically there’s never been this kind of system before. Congress self-consciously created this system. And I guess … I’m just struggling. I just don’t understand why the government resists the involvement of a jury of a man’s or woman’s peers.

That seems like an echo of the late Justice Antonin Scalia, whom Justice Gorsuch replaced. Justice Scalia often said the right to a trial by a jury of one’s peers is a basic protection from tyranny.

Justice Samuel Alito hearkened to the history behind that idea.

ALITO: You know, I thought the right—the reason for the jury trial right was fundamentally distrust of judges. They didn’t want these things to be in the hands of judges, who had historically been appointed by the crown and were thought to be beholden to the crown. They wanted it to be in the hands of ordinary citizens. So how does that get turned into a regime that protects the prerogatives of a judge to decide what the term of imprisonment should be?

It’s significant that Justice Alito was the only one who seemed sympathetic at all to the government’s side, because adopting the argument of Haymond’s lawyer would essentially dismantle the current system.

The majority of justices seemed to lean squarely in Haymond’s favor. A ruling for him won’t get rid of the current system of supervised release that made this problem in the first place, though.

The justices could decide to strike the entire thing down, but I doubt they’d do that under these facts alone.

This second case is a bankruptcy question. Quite technical, so I’ll keep it brief.

A company called Tempnology makes wearable items that stay cool even when you’re hot and sweaty during exercise. Headbands and socks, for example.

On the other side is a company called Mission Product Holdings. I’ll refer to it as M-P-H to save time. M-P-H had a contract to distribute some of those wearables and also use Tempnology’s trademark and logo.

But in 2015, Tempnology filed for bankruptcy under Chapter 11. That’s the kind of bankruptcy where companies can restructure debts with a goal to right the ship and stay afloat.

Chapter 11 also permits a debtor to “reject” contracts where the terms haven’t yet been fully completed.

Tempnology took advantage of that provision and rejected its M-P-H contract. M-P-H would like to keep the contract, but if it can’t, it at least wants to hang on to the trademark license agreement.

The dispute sits at the intersection of bankruptcy and trademark law. Listen to Justice Stephen Breyer address the idea of whether contracts can be broken down into bits. In Justice Breyer’s inimitable fashion, he uses the analogy of a house.

BREYER: It’s really a special kind of house. It’s like a house that would collapse unless you keep it up; maybe like an igloo that you promised to air condition. You know, you break your promise to air condition, no more igloo. Now, if you seem to think of it like that, you think, no, there aren’t two rights. This upkeep business is an essential part of one right, which is going to give you the house to live in.

Tempnology’s lawyer argued that trademarks are unique. As such, they relate to the reputation of the trademark owner, so borrowed theories from outside bankruptcy don’t really work here.

No telling how this one will turn out.

Final case today. Here, the question is whether the government is a “person” under a law called America Invents Act. I’ll need to refer to the law a few more times, so I’ll just say A-I-A.

The context of this case is a machine that the U-S Postal Service uses to sort mail quickly. The maker of that machine, Return Mail, Inc., has a patent on the sorter, and U-S-P-S wants to invalidate that patent. The Post Office is using a provision of the AIA that allows a person to challenge a patent.

Here’s the problem: AIA has no definition of “person.”

The lawyer for Return Mail argues “person” means private parties, as is commonly understood. Her point is the Post Office isn’t a private party and thus not a person, so it has no standing to sue. She argues further that government has all sorts of other ways to take down bad patents. Regular folks can’t do that.

Justice Sonia Sotomayor was sympathetic.

SOTOMAYOR: It does seem like the deck is stacked against a private citizen who is dragged into these proceedings. They’ve got an executive agency acting as judge with an executive director who can pick the judges, who can substitute judges, can reexamine what those judges say, and change the ruling, and you’ve got another government agency being the prosecutor at the same time. 

Malcolm Stewart is the lawyer for the postal service. He said, hold on! Other laws say companies can be deemed as “persons.” And a government can get a patent despite the patent act saying a “person” is entitled to obtain a patent.

That’s when Justice Samuel Alito took the opportunity to take another swipe at Congress. A seeming trend lately, of  “Congress, stop and think, and think again.”

ALITO: If we indulge the possible fiction that Congress actually gave a second of thought to the issue that’s before us [laughter] uh, I’m not sure petitioner has much of an explanation as … why Congress would have wanted to treat the government differently from a private party as to these AIA proceedings.

Then Justice Kagan wondered whether Congress meant for government to be or not to be a “person.”

KAGAN: But does anybody really think that Congress thinks about this as a default rule and legislates against it? And if not, shouldn’t we just do what strikes us as the thing Congress would have wanted done with respect to any particular statute?

That sound you’re hearing? It’s a common theme: Separation of powers.

The judicial branch is showing itself not to be shy about calling out the other two branches of government—the executive and the legislative—for overreaching its power or for using imprecise language.

And that’s this week’s Legal Docket.

(AP Photo/J. Scott Applewhite) In this Jan. 24, 2019 file photo, the Supreme Court is seen at sunset in Washington, Thursday, Jan. 24, 2019. 

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.

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