Supreme Court

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Trying to make lemonade out of the lemon handed to it by the Supreme Court, Aereo has come up with Plan B.

The best stories never really end when you think they’re going to, do they? There’s always a nifty twist that keeps the plot chugging along.

So we really didn’t expect that the Supreme Court’s decision was the last word in the Aereo case, did we?

And right we were.

After pulling the plug on its service within a couple of days after taking a seeming knock-out punch from the Supreme Court, Aereo has come up with a plan. According to a letter filed by Aereo with Judge Alison Nathan of the U.S. District Court for the Southern District of New York (where the Aereo saga first got our attention back in 2012), Aereo is now a cable company that is entitled – by Congress, thank you very much – to retransmit over-the-air broadcast programming. As long, that is, as Aereo files the necessary “statements of account” and “royalty fees”required of cable systems. And in its letter Aereo advises that it “is proceeding” to file just those items.

Following the adage about making lemonade when handed lemons, Aereo has taken the Supreme Court’s decision and tried to turn it to Aereo’s advantage. Since the Supremes said that Aereo is “highly similar” to a conventional cable company, well then (according to Aereo), Aereo is a cable system and, therefore, “is entitled to a license” under Section 111 of the Copyright Act.

And even if it’s not entitled to such a license, Aereo’s got another argument. The Supreme Court concluded that Aereo is like a cable system because Aereo provides “near simultaneous” retransmissions of over-the-air programming. So (Aereo reasons) if Aereo’s service were to be limited to delayed (i.e., not “near simultaneous”) retransmissions – providing, instead, essentially an elaborate recording-and-playback service – then Aereo would no longer be like a cable system and would no longer be subject to the terms of the Supreme Court’s decision. (Blogmeister’s Note: Props to the Swami, Kevin Goldberg, for seeing this argument coming.)

Aereo’s argument is far from perfect. For example, while the Supremes did clearly indicate that Aereo is “highly similar” to a cable system, it’s a stretch to conclude (as Aereo does) that the Supreme Court issued a “holding that Aereo is a cable system under the Copyright Act”. A couple of years ago an operation called ivi, Inc., which provided an Internet-delivered system for streaming over-the-air programming and claimed it was a cable system, didn’t make it out of the starting gate. While Aereo’s system is arguably different in certain respects from ivi’s, the fact that ivi didn’t get very far should send Aereo a cautionary message.

How Judge Nathan will react to Aereo’s pirouette remains to be seen.

But, for now, Aereo lives on. It’s into Plan B and its now-proposed service is far from the service that got this melodrama started in 2012. But it’s still with us, at least for a while.

Judge Richard KopfNine days ago, Judge Richard Kopf wrote an article about the Supreme Court’s decision in Hobby Lobby that suggested, “[a]s the kids say, it is time for the Court to stfu.” It was a good post, but something that seemed of such little controversy that we relegated it to an in-blurb mention within Non-Sequiturs.

And then all manner of shock and hand-wringing commenced.

It’s not the first time a federal judge received criticism for speaking out. Are jurists like Judge Kopf out of control?

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Look, I’m an originalist, but I’m not a nut.

– Justice Antonin Scalia, when asked to compare his judicial philosophy to that of Justice Clarence Thomas. The story comes to us from an anecdote told by Jeffrey Toobin a couple years ago that is now available on video.

(Do you want to see the video? Of course you do. It’s beyond the jump…)

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See the resemblance here?

* Utah is appealing its gay marriage case directly to the Supreme Court, presumably because the state’s attorney general doesn’t even want to bother with an en banc hearing before the Tenth Circuit. This should be good. [Salt Lake Tribune]

* Perkins Coie recently appointed its first ever Washington, D.C.-based managing partner in its 102-year history. Congrats to John Devaney, who will lead a “true national firm” beginning in January 2015. [Capital Business / Washington Post]

* When your career goes awry in Biglaw through no one’s fault but your own, you can end up living your life in shame or in jail. We’re going venture a guess and say the former is nicer than the latter. [Am Law Daily]

* How can law school graduates obtain law work experience? Simple. Get on your knees and learn how to please. Just kidding. Take some advice from this “poorly written” article instead. [CollegeRecruiter.com]

* Everything about Lacey Jonas from Grand Theft Auto V is so Lindsay Lohan-esque that she should totally win her lawsuit. Just take it from someone who’s “no legal expert, but know[s] [her] tabloid stars.” [TIME]

* Need a break from bar exam studying? Searching for something to do as a summer associate? Are you an attorney in need of fun? Come to tonight’s trivia event! All are welcome, sign up here. [Above the Law]

As the Supreme Court’s October Term 2013 fades into memory, and the bickering over Hobby Lobby subsides, let’s look ahead to October Term 2014 — and beyond. We know now the identities of all the OT 2014 SCOTUS clerks, as well as a growing number of the clerks for October Term 2015.

The clerk hiring contains some bad news for Dean Erwin Chemerinsky and other liberals who want Justice Ruth Bader Ginsburg to retire before it’s too late. The Notorious RBG has picked her posse for OT 2015, suggesting that she won’t be leaving the Court anytime soon.

But let’s not get ahead of ourselves. First let’s look at the official list of Supreme Court law clerks for October Term 2014, starting up in just a few months….

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* The criminal codes violated in Transformers: Age of Extinction. Violations of the code of good filmmaking not included. [The Legal Geeks]

* Remember the guy who turned Justice Ginsburg’s Hobby Lobby dissent into a song? It turns out he’s been recording a song a day since 2009 and that was his first hit. Congrats! Hopefully next Term Justice Alito can declare suffocating orphans constitutional so this guy can have a follow-up. [Music.mic]

* How to end an internship? The key is drunkenly denouncing all your bosses in public. Oh, how to end an internship positively? Well, then I’m going to need some advice. [Corporette]

* Fracking interests have a new plan to promote the well-being of those living in affected areas: pay them $50,000 to grant universal releases. This doesn’t make fracking sound dangerous at all. [Pro Publica]

* Hey folks taking the New York bar exam at the Javits Center! Order your lunch. [Custom Gourmet]

* Insurance companies are asking American customers to go to Tijuana for medical care. “I know you need heart surgery, but have you considered how awesome it would be to take in a donkey show after your release?” [New Republic]

* Mitchell Epner, who is basically our Donald Sterling beat reporter, has a recap of the first day of the proceedings. [mitchellepner]

* Conviction for multiple sexual assaults “can be the basis of an interim suspension of his law license.” Seems like that should be a little more definite. [Legal Profession Blog]

* One of the underappreciated challenges in state and local governance is the inability to permalink statutes. [Government Executive]

Casey Anthony

* Squire Patton Boggs has announced the new leadership structure of its lobbying and public policy practice. It’s really no surprise that the head honchos of the group hail from the Patton Boggs side of the recent merger. [Politico]

* “It’s funny how the Supreme Court reaches down and picks this case.” The most important digital privacy case of our time just happened to be filed by Stanford Law’s SCOTUS Litigation Clinic. Awesome. [San Jose Mercury News]

* If you’re caught on camera sleeping during a Yankees/Red Sox game, you can probably expect abuse from ESPN announcers. If you call someone an “unintelligent fatty” as an announcer, you can probably expect a $10M defamation suit. [New York Post]

* “I’m proud to do my job.” Madonna finally rescheduled her jury duty session in New York City, but she was dismissed early so as not to create a “further distraction for the courthouse.” [New York Daily News]

* It’s been three years since Casey Anthony was acquitted of her daughter’s murder. Let us remember this most amazing voicemail: “CASEY ANTHONY NEEDS TO ROT IN HELL! SHE NEEDS TO DIE!” [CNN]

* Mitchell Epner breaks down the Donald Sterling trial, which kicked off today. Or “tipped off” today. [CNBC]

* Judge Kopf reviews Keith Lee’s The Marble and the Sculptor. Keith can take heart that His Honor didn’t tell him to STFU. [Hercules and the Umpire]

* MoloLamken offers its comprehensive review of the Supreme Court’s recently concluded adventures from the perspective of businesses. Spoiler alert: businesses did really, really well. [MoloLamken]

* Former seminary dean lied about his religious background and then tried to sue the guy who called him out on it. Benchslapping ensued in a fee decision: “Plaintiff’s sparse trickle of written argument gave way at the hearing to an overflow of objectively unreasonable claims…. Plaintiff either cast unsupported aspersions or asserted boldfaced contradictions, adopting whatever narrative best served him at the time.” In fairness, those sound like they might be assets in organized religion. [Religion Posts]

* If you want to know what’s up in the energy sector, Breaking Energy now has a “Law Firms Perspective” feed. [Breaking Energy]

* Discretion is the better part of valor: gamblers turned down around $1.5 million payout to sue casino for illegal detention… and then lost. [ATL Redline]

* I’ve said before that I find the concept of legal tattoos fascinating. This one is incredibly meta….

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The Am Law 100 average spread is 11.1 to 1.

* If you’ve been dying to know what the partner compensation spread looks like at your firm, then we’ve got your fix. Check out the insane 23 to 1 spread over at Perkins Coie. [Am Law Daily]

* “It’s a complete structural change, and it’s not going away. The end result is fewer graduates, and fewer law schools.” With enrollment still dropping, the end seems near. [Boston Globe]

* “I predicted the collapse of legal education, but I didn’t quite predict how bad it would be.” Dean Frank Wu of UC Hastings Law is fighting his way out of a rankings slump. Good luck. [The Recorder]

* Widener is the latest law school to roll out a solo / small firm incubator. Only grads from the class of 2014 may apply. Earlier grads are ineligible because they presumably have jobs… maybe. [PennLive.com]

* You may think Chief Justice Roberts and Justice Scalia are “stuck in the past” and “disconnected from the real world,” but you may be wrong. You can read Uncertain Justice (affiliate link), by Laurence Tribe and Joshua Matz, to find out why. [New York Times]

* A judge has denied bail for the Georgia man accused of sending sext messages during his seven-hour work day while his 22-month-old son was left to die in his hot car. Ugh, this is terribly sad news. :( [CNN]

Everyone is complaining about the Supreme Court. Whether you’re reading constitutional scholars or Facebook rants the consensus is that Hobby Lobby was a disaster. Except for the song.

So why not create your own Supreme Court?

Consider this an invitation to build a fantasy Supreme Court. Here’s a list of all the justices in history to choose from (or argue the merits of some deserving luminary who never — or hasn’t yet — made the Court). Choose a full complement of 9 or just pick one — we’re just playing around here.

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