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Pirates and Piracy: The Supreme Court Will Examine Whether States are Immune from Copyright Infringement Claims in a Dispute Over Blackbeard’s Shipwreck

By John Grimm

The Supreme Court has agreed to hear a case that will determine whether Congress can abrogate states’ sovereign immunity with respect to copyright infringement claims.  Allen v. Cooper, No. 18-877.    The case arises out of an underwater research expedition to document and salvage the wreck of Blackbeard’s ship off the coast of North Carolina.  The salvage team alleges that, without permission, North Carolina published some of the team’s footage on the internet, violating its copyright in the footage.

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Lamone v. Benisek: Round Three in the Supreme Court for Partisan Gerrymandering Challenges to Maryland’s Sixth Congressional District

By Alan B. Sternstein

The Supreme Court will hear oral argument on March 26, 2019 for the third time in the ongoing legal challenge to the 2011 changes in Maryland’s Sixth Congressional District.  Lamone v. Benisek, No. 18-726 (“Benisek”).[1] Boundary changes to the Sixth District were made after the 2010 census, and Appellees in Benisek successfully challenged before a three-judge panel of the federal district court below the changes as retaliation for their voting as Republicans in the Sixth District during past general elections.  Benisek will be argued in conjunction with Rucho v. Common Cause, No. 18-422 (“Rucho”), in which, in addition to the First Amendment grounds asserted in Benisek, Appellees successfully challenged before another three-judge court, on Equal Protection grounds, South Carolina’s Congressional redistricting after the 2010 census.[2] Read More…

The Democracy Canon and the Oaks Ballot Dispute

By Steve Klepper (Twitter: @MDAppeal)[*]

The Maryland high court is about to hear, on emergency briefing, the appeal in Lamone v. Lewin. The administrator of the State Board of Elections is challenging the April 26 injunction requiring that former state senator Nathaniel Oaks’ name be removed from the June primary ballot.

The Court granted certiorari on Friday. The parties filed opening briefs on Monday and reply briefs on Tuesday, with arguments Wednesday. The briefs are available here.

The briefing is superb on both sides. Julia Doyle Bernhardt and Andrea Trento, with the Office of the Attorney General, and Mark Sitchel and Elizabeth Harlan, representing the challengers, did top-flight work on a frantic schedule. The quality of briefing should make the Court’s job easier, but the ultimate choice is a difficult one. Read More…

Schneider Electric: The Surety’s Word Is Its Bond; Not So Its Incorporation of the Words of Its Principal

By Alan B. Sternstein

Language in a surety’s performance bond incorporating, without limitation, the provisions of its principal’s subcontract is not sufficient to bind the surety to the arbitration requirements of the subcontract, according to the Court of Special Appeals in Schneider Elec. Bldgs. Critical Systems, Inc. v. Western Surety Co., 231 Md. App. 27 (2016), cert. granted, 2017 Md. LEXIS 137 and 277 (Feb. 3 and Mar. 3, 2017) (“Schneider Electric”) (video of oral argument available here). Read More…

Adnan Syed and How to Solve the Court of Special Appeals Public-Access Problem

By Michael Wein

The Maryland judiciary website posted last Wednesday about the Syed case guidelines for the public and news media interested in attending oral arguments. As noted in the detailed order by new Chief Judge Patrick Woodward, oral arguments are being held in Courtroom 1 on the second floor of the Courts of Appeal Building in Annapolis (the larger of the two courtrooms regularly used by the Court of Special Appeals). Courthouse security is taking significant protections against recording devices, and limited seating is being provided to the public and media.

This post is not about the Syed case, specifically. But the circumstances of the Syed oral arguments expose a lack of proper public access to any of the intermediate appellate court’s oral arguments, in noted contrast with the Court of Appeals.[1] Syed is quite obviously a highlighted, media-interest case, which poses an opportunity to discuss what procedures Maryland’s intermediate appellate court should consider, in at least the future, to accommodate public interest in specific, important oral arguments.

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Court of Appeals to hear arguments of officers charged in Freddie Gray death

By Michael Wein

As previous Blog posts of  January 19, February 12, and February 22 indicated would occur, expeditious Court of Appeals of Maryland arguments in the prosecution of the officers charged in Freddie Gray’s death will occur today, and are available for view by webcast. Officer William Porter initially sought relief in the appellate courts after being ordered by the trial judge to give testimony, pending his retrial, in the cases of Officers Caesar Goodwin and Alicia White, and was previously designated by the Court of Special Appeals, pursuant to Md. Rule 8-111, as the appellant in the case. Notably, after that court consolidated the appeal with those of Officers Goodwin and White, there was some disagreement about the correct caption and confusion as to whether it was appropriate to call them “Respondents” in the Court of Appeals. In any case, the four oral arguments to be heard today will address legal issues related to the cases of all six officers charged in Mr. Gray’s death.

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Argument Preview: The Causation Requirement for Liability Insurance Policies

By Steve Klepper (Twitter: @MDAppeal)[*]

[Update: The Court’s April 21 opinion ruled for the insurer on the causation issue and declined to reach the other questions presented.]

On February 5, 2015, the Court of Appeals of Maryland will hear argument in an insurance coverage action, Maryland Casualty Co. v. Blackstone International. If you’re not an insurance coverage practitioner, the questions presented are not likely to make much sense to you. Whichever way the Court of Appeals rules, however, the opinion is likely to draw national attention in insurance coverage circles.

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Serial Comes to the Maryland Appellate Courts

Fans of the Serial podcast: You might be interested in this new press release from the Court of Special Appeals. Read More…

Montgomery County v. Fraternal Order to Address Government’s Role at the Ballot Box

By Alan Sternstein*

In Montgomery County v. Fraternal Order of Police, No. 175 (Md. Ct. App. 2014), the Maryland appellate courts will confront for the first time the evolving doctrine of official speech. Official speech is any statement by a branch or entity of government or an individual acting in official capacity. It may be made in multiple forms, including oral, written, and electronic. Until more recent times, official speech has largely been an unquestioned prerogative of government. Governments need to communicate with their citizenry to exercise powers and effect programs, no less than individuals need to communicate with each other in order to achieve important or vital ends. The increase in partisanship at all levels of government, however, has turned an increasingly critical eye toward the lawful scope of official speech, with particular respect to its means of exercise and intended ends. The result has been judicial challenges regarding the reach of and external limits on official speech.

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Obamacare on Appeal: Statutory Construction of This Politically Charged Question Will Inevitably Be Called Judicial Activism

By Derek Stikeleather,

In June, I wrote here that law professors should use the Supreme Court’s reversal of a Fourth Circuit opinion (CTS Corp. v. Waldburger) as their case study to teach the complexity of statutory construction. But I fear that a subsequent pair of conflicting, high-profile opinions in the D.C. Circuit and Fourth Circuit construing the Patient Protection and Affordable Care Act (“ACA”) is what many law professors will be using to teach statutory construction. Halbig v. Burwell, No. 14-5018 (D.C. Cir. July 22, 2014), rehearing en banc granted (Sep. 4, 2014), and King v. Burwell, No. 14-1158 (4th Cir. July 22, 2014), are attractive as important cases that present a pure question of statutory construction, but using them to teach statutory construction runs the risk that students will see statutory construction as a mere euphemism for partisan “judicial activism.” The opinions are best used to instead explore the precarious role of appellate judges in resolving politically charged controversies.

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