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Court Adds Cases on Immigration, Criminal Law, Offensive Names, and More

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By Casey C. Sullivan, Esq. on September 30, 2016 12:01 PM

The new Supreme Court term doesn't begin until Monday, but it got its unofficial kickoff yesterday, as the Court released orders from this week's "long conference," granting cert in eight new cases.

Lucky for us, they're eight pretty interesting cases. The disputes include questions over immigration law, the educational rights of children with disabilities, immigration and "crimes of violence," credit card fees, and attorney misconduct. There's even an Indian Law case titled Lewis v. Clarke. Here's a quick preview of the new additions.

1. Lee v. Tam: Offensive Names Like The Slants (and the Redskins)

Simon Tam fronts the "Chinatown dance rock" band The Slants. When Tam tried to register the band's name as a trademark, the U.S. Patent and Trademark Office refused, on the grounds that the Lanham Act prohibits trademark registration for "scandalous, immoral, or disparaging marks." The Federal Circuit struck down that prohibition last December, ruling that it was unconstitutional viewpoint discrimination.

Tam's case will now be heard by the Supreme Court this term. And while Tam's band is at the heart of the dispute, there's a much bigger name lurking in the background: the Washington Redskins, the football team whose trademark protections were denied under the same "disparaging marks" provisions of the Lanham Act.

2. Goodyear Tire v. Haeger and Musnuff v. Haeger: Misconduct and Sanctions

These consolidated cases arose after Goodyear and who of its attorneys were hit with $2.7 million in sanctions for alleged misconduct in a product's liability suit, including concealing relevant documents and making misleading and false in-court statements. Goodyear argues that the sanction amount must have a "direct causal connection" with the misconduct, something the Ninth Circuit did not require when it approved of the sanction award.

3. Lewis v. Clarke: Another Expedition Into Indian Law

With Lewis v. Clarke, the Supreme Court moves once again into the often frustrating wilderness of Indian Law. This case, whose name so closely recalls the American explorers Meriwether Lewis and William Clark, who helped lead the country into the West, examines the reach of tribes' sovereign immunity.

William Clarke (with an e; not the explorer) was sued after he struck Brian and Michelle Lewis while driving a limousine for a tribal casino. Clarke claimed that the tribe's sovereign immunity barred the Lewis's suit, a claim the Supreme Court of Connecticut agreed with. Now it's the Supreme Court's turn to head out into this relatively unexplored territory, further defining the borders of tribal sovereign immunity.

4. Endrew F. v. Douglas County School District: Educational Rights of Disabled Children

This case asks the Justices to determine what sort of educational benefits states must provide children with disabilities: benefits that are merely "more than de minimis," as the Tenth Circuit has ruled, or "meaningful," as other circuits require?

5. Lynch v. Dimaya: Immigration and "Crimes of Violence"

Non-citizen immigrants can be deported if they have committed a "crime of violence," which is defined both as crimes that involve the use or threat of physical force and those which only involve "a substantial risk that physical force" may be used. The Supreme Court invalidated, as unconstitutionally vague, a similar provision of the Armed Career Criminal Act in 2014's Johnson v. United States. It will now see if that same logic extends to immigration law.

6. McLane v. EEOC: Subpoenas and Standards of Review

When the Ninth Circuit reviewed a district court's decision to deny an EEOC subpoena, it did so de novo, giving no deference to the lower court's conclusion or reasoning. In a footnote, the Ninth noted that the reason for reviewing questions of relevance and undue burden de novo was "unclear," though "firmly entrenched in our case law." Perhaps the Supreme Court will provide some clarity.

7. Nelson v. Colorado: Give Me Back My Money!

One of the more interesting cases granted yesterday, Nelson v. Colorado deals with two Coloradans who were convicted, sentenced, and forced to pay thousands of dollars in restitution. When their convictions were reversed, Colorado refused to refund their payments, requiring instead that they prove their innocence "by clear and convincing evidence" before their money can be refunded, something the pair argues is a violation of due process.

8. Expressions Hair Design v. Schneiderman: Credit Cards, Surcharges, Discounts, Semantics, and Free Speech

New York law forbids charging customers more when they pay with credit cards. New York law also allows merchants to give discounts to customers who pay in cash. To many, that's simply a difference of semantics; one man's discount is another's surcharge. Now some merchants are arguing that the law violates their First Amendment rights to characterize prices as they see fit.

Check back in for more updates on Monday, when the Supreme Court's new term official begins and when the Court is expected to issue another set of orders, to be followed by the term's first oral arguments on Tuesday.

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