September 17, 2005

Notes to Self

by PG

In the absence of an internet connection or casebook while we were discussing sundry legal and political matters, a friend and I couldn't agree on whether Nike v. Kasky had been an actual decision on the merits. My memory was the more precedentially accurate -- the Supreme Court did dodge making a determination of whether NIKE's claim that it no longer was Sweatshop Inc. was protected or unprotected (commercial) speech. However, the per curiam statement that "The writ of certiorari is dismissed as improvidently granted" doesn't show the level of disagreement within the Court. While Stevens, Ginsburg and Souter concurred in the dismissal of cert, Kennedy wrote simply "I dissent from the order dismissing the writ of certiorari as improvidently granted," and Breyer and O'Connor dissented from the order at much greater length and stated what their vote on the merits would have been: "I would apply a form of heightened scrutiny to the speech regulations in question, and I believe that those regulations cannot survive that scrutiny."

Ooh, you know what a dodged Supreme Court case means? Moot court material! Surely it's not as good as a circuit or even state court conflict on the meaning of a federal law, but now that lists of circuit conflicts are hard to find, we take what we can get. Though I'm pretty sure that jamming a commercial speech issue in with an issue relating to South Carolina's odd domestic violence law (my student editor partner's preference) will make for a fact situation absurd even beyond our previous fantasies regarding green-card marriages, basement dungeons and private investigators. On the other hand, this would be the ideal of mixed fact and law, so that we could balance it by pushing the speech in question more toward commercial or more toward protected depending on the caselaw in the jurisdiction we chose. Or we could try to find a state that actually protects commercial speech -- does anyone know of any such?

September 17, 2005 04:25 AM | TrackBack
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