Model: legaltextai/modernbert-embed-base-legaltextai-matryoshka-legaldataset
Author: legaltextai
Pipeline: sentence-similarity
Library: sentence-transformers
Tags: sentence-transformers, safetensors, modernbert, sentence-similarity, feature-extraction, generated_from_trainer, dataset_size:41342, loss:MatryoshkaLoss, loss:MultipleNegativesRankingLoss, en, arxiv:1908.10084, arxiv:2205.13147, arxiv:1705.00652, base_model:nomic-ai/modernbert-embed-base, base_model:finetune:nomic-ai/modernbert-embed-base, license:apache-2.0, model-index, text-embeddings-inference, endpoints_compatible, region:us
Base models (finetune): id: nomic-ai/modernbert-embed-base
Card metadata: language: en
license: apache-2.0
tags: sentence-transformers, sentence-similarity, feature-extraction, generated_from_trainer, dataset_size:41342, loss:MatryoshkaLoss, loss:MultipleNegativesRankingLoss
base_model: nomic-ai/modernbert-embed-base
widget: source_sentence: In the case of United States v. Algernon Blair, Inc., what was the primary reason that Coastal Steel Erectors, Inc. justified its termination of performance under the subcontract?
sentences: Street Name at 10-6 to 10-7.

DTC has been estimated to hold "about three-quarters of [the] shares in publicly traded companies." Garvin, supra, at 315; accord Kahan & Rock, supra, at 1236; Street Name at 10-4 n.2. "The shares of each company held by DTC are typically represented by only one or more `immobilized' jumbo stock certificates held in DTC's vaults." Street Name at 10-7. "The immobilized jumbo certificates are the direct result of Section 17A(e) of the Exchange Act, in which Congress instructed the SEC to `use its authority . . . to end the physical movement of securities certificates. . . .'" Id. at 10-7 n.10.

The depository system is what enables public trading of securities to take place. In 2014, the NYSE reported average daily volume of approximately 1 billion shares and approximately 4 million separate trades. See NYSE Factbook, http://www.nysedata.com/factbook (last visited June 19, 2015). The failure of the certificate-based system to keep up with much lower trading volumes in the 1960s demonstrates that it cannot meet current demand. Prefatory Note at 2. Without immobilization and DTC, "implementing a system to settle securities within five business days (T+5), much less today's norm of T+3 or the current goals of T+1 or T+0, would simply be impossible." Kahan & Rock, supra, at 1238. Trading at current levels is only possible because of share immobilization and DTC. Street Name at 10-7; accord Garvin, supra, at 315-16; Prefatory Note at 2-3.

Because of the federal policy of share immobilization, it is now Cede—not the ultimate beneficial owner and not the DTC-participant banks and brokers—that appears on the stock ledger of a Delaware corporation. Cede is typically the largest holder on the stock ledger of most publicly traded Delaware corporations. Street Name at 10-6. To preserve the pre-immobilization status quo—at least at the federal level—the SEC provided that for purposes of federal law, the custodial banks and brokers remain the record holders. Depositories are defined as "clearing agencies." 15 U.S.C. § 78c(23)(A). The term "record holder" is defined as "any broker, dealer, voting trustee, bank, association or other entity that exercises fiduciary powers which holds securities of record in nominee name or otherwise or as a participant in a clearing agency registered pursuant to section 17A of the Act." 17 C.F.R. § 240.14c-1(i). The term "entity that exercises fiduciary powers" is similarly defined as "any entity that holds securities in nominee name or otherwise on behalf of a beneficial owner but does not include a clearing agency registered pursuant to section 17A of the Act or a broker or a dealer." Id. § 240.14c-1(c). Federal law thus looks through DTC when determining a corporation's record holders. For example, when determining whether an issuer has 500 or more record holders of a class of its equity securities such that it must register under 15 U.S.C. § 781(g), DTC does not count as a single holder of record. Each DTC participant member counts as a holder of record. Michael K. Molitor, Will More Sunlight Fade The Pink Sheets?, 39 Ind. L. Rev. 309, 315-16 (2006) (citing SEC interpretive releases).

The federal regulations also ensure that a corporation can easily find out the identities of the banks and brokers who hold shares through DTC. Federal regulations require that DTC "furnish a securities position listing promptly to each issuer whose securities are held in the name of the clearing agency or its nominee." 17 C.F.R. § 240.17Ad-8(b). The participant listing is known colloquially as the "Cede breakdown," and it identifies for a particular date the custodial banks and brokers that hold shares in fungible bulk as of that date along with the number of shares held. A Delaware corporation can obtain a Cede breakdown with ease. In 1981, this court noted that a Cede breakdown could be obtained in a matter of minutes. Hatleigh Corp., Brophy was not premised on either of those rationales. Rather, Brophy focused on the public policy of preventing unjust enrichment based on the misuse of confidential corporate information.[45] Just as the Brophy court relied on the seminal decision in Guth v. Loft,[46] we also rely on the Guth court's rationale in this case, and refuse to restrict disgorgement in Brophy cases as Pfeiffer suggests.

The rule, inveterate and uncompromising in its rigidity, does not rest upon the narrow ground of injury or damage to the corporation resulting from a betrayal of confidence, but upon a broader foundation of a wise public policy that, for the purpose of removing all temptation, extinguishes all possibility of profit flowing from a breach of the confidence imposed by the fiduciary relation.[47]

Given Guth's eloquent articulation of Delaware's public policy and the fact that "Delaware law dictates that the scope of recovery for a breach of the duty of loyalty is not to be determined narrowly,"[48] we find no reasonable public policy ground to restrict the scope of disgorgement remedy in Brophy cases—irrespective of arguably parallel remedies grounded in federal securities law[ … ]

.

 

 

 

6.2

Federal-based liability

 

In additional to state-based liability, traders trading on the basis of inside information may also be liable under the federal securities laws. Federal insider trading liability carries with it potentially both civil and criminal liability. Like state-based liability, federal liability for insider trading is derived from the common law. There is no federal statute that explicitly prohibits insider trading. Rather, courts have interpreted Section 10b of the Securities Act of 1934, the Act’s anti-fraud provision, as prohibiting insider trading.

 

 

 

 

6.2.1

Rule 10b-5

 

§ 240.10b-5 Employment of manipulative and deceptive devices.

It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange,

     (a) To employ any device, scheme, or artifice to defraud,
     (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
     (c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person,

in connection with the purchase or sale of any security.

 

 

 

6.2.2

SEC v. Texas Gulf Sulphur Co.

 

The following case, Texas Gulf Sulphur is an early federal insider trading case. In TGS, the court starts from the position that insiders, as fiduciaries, have an obligation not to use the corporation’s information for their personal benefit. As fiduciaries, insiders have an obligation to “disclose” the confidential inside information, or “abstain from trading” while in possession of the corporation’s material, confidential inside information. Questions arise as to what information is material and when is information no longer confidential such that an insider may freely trade on it.

 

United States Court of Appeals for the Second Circuit

401 F.2d 833

No. 296, Docket 30882

1968-08-13

401 F.2d 833 (1968)

SECURITIES AND EXCHANGE COMMISSION,  v. TEXAS GULF SULPHUR CO.[ … ][ … ]

o us.

THE FACTUAL SETTING

This action derives from the exploratory activities of TGS begun in 1957 on the Canadian Shield in eastern Canada. In March of 1959, aerial geophysical surveys were conducted over more than 15,000 square miles of this area by a group led by defendant Mollison, a mining engineer and a Vice President of TGS. The group included defendant Holyk, TGS's chief geologist, defendant Clayton, an electrical engineer and geophysicist, and defendant Darke, a geologist. These operations resulted in the detection of numerous anomalies, i. e., extraordinary variations in the conductivity of rocks, one of which was on the Kidd 55 segment of land located near Timmins, Ontario.

On October 29 and 30, 1963, Clayton conducted a ground geophysical survey on the northeast portion of the Kidd 55 segment which confirmed the presence of an anomaly and indicated the necessity of diamond core drilling for further evaluation., 6.5.2

Cases

 

 

 

 

6.5.2.1

United States v. Algernon Blair, Inc. (1973)

 

United States Court of Appeals for the Fourth Circuit

479 F.2d 638

No. 72-2443

1973-06-14

479 F.2d 638 (1973)

UNITED STATES of America, for the use of Coastal Steel Erectors, Inc., Appellant,
v.
ALGERNON BLAIR, INCORPORATED, and United States Fidelity and Guaranty Company, Appellees.

No. 72-2443.

United States Court of Appeals, Fourth Circuit.

Argued May 9, 1973.

Decided June 14, 1973.

[ … ]

CRAVEN, Circuit Judge:

May a subcontractor, who justifiably ceases work under a contract because of the prime contractor's breach, recover in quantum meruit the value of labor and equipment already furnished pursuant to the contract irrespective of whether he would have been entitled to recover in a suit on the contract? We think so, and, for reasons to be stated, the decision of the district court will be reversed.

The subcontractor, Coastal Steel Erectors, Inc., brought this action under the provisions of the Miller Act, 40 U.S.C.A. § 270a et seq., in the name of the United States against Algernon Blair, Inc., and its surety, United States Fidelity and Guaranty Company. Blair had entered a contract with the United States for the construction of a naval hospital in Charleston County, South Carolina. Blair had then contracted with Coastal to perform certain steel erection and supply certain equipment in conjunction with Blair's contract with the United States. Coastal commenced performance of its obligations, supplying its own cranes for handling and placing steel. Blair refused to pay for crane rental, maintaining that it was not obligated to do so under the subcontract. Because of Blair's failure to make payments for crane rental, and after completion of approximately 28 percent of the subcontract, Coastal terminated its performance. Blair then proceeded to complete the job with a new subcontractor. Coastal brought this action to recover for labor and equipment furnished.

The district court found that the subcontract required Blair to pay for crane use and that Blair's refusal to do so was such a material breach as to justify Coastal's terminating performance. This finding is not questioned on appeal. The court then found that under the contract the amount due Coastal, less what had already been paid, totaled approximately $37,000. Additionally, the court found Coastal would have lost more than $37,000 if it had completed performance. Holding that any amount due Coastal must be reduced by any loss it would have incurred by complete performance of the contract, the court denied recovery to Coastal. While the district court correctly stated the "`normal' rule of contract damages,"[1] we think Coastal is entitled to recover in quantum meruit.[2]

[ … ]

that the complaint is not clear in regard to the theory of a plaintiff's recovery does not preclude recovery under quantum meruit. [ … ] A plaintiff may join a claim for quantum meruit with a claim for damages from breach of contract.[5]

In the present case, Coastal has, at its own expense, provided Blair with labor and the use of equipment. Blair, who breached the subcontract, has retained these benefits without having fully paid for them. On these facts, Coastal is entitled to restitution in quantum meruit.

[ … ]

The impact of quantum meruit is to allow a promisee to recover the value of services he gave to the defendant irrespective of whether he would have lost money on the contract and been unable to recover in a suit on the contract. [ … ] The measure of recovery for quantum meruit is the reasonable value of the performance, Restatement of Contracts § 347 (1932); and recovery is undiminished by any loss which would have been incurred by complete performance. 12 Williston on Contracts § 1485, at 312 (3d ed. 1970). While the contract price may be evidence of reasonable value of the services, it does not measure the value of the performance or limit recovery.[7] Rather, the standard for measuring the reasonable value of the services rendered is the amount for which such services could have been purchased from one in the plaintiff's position at the time and place the services were rendered.[8]

Since the district court has not yet accurately determined the reasonable value of the labor and equipment use furnished by Coastal to Blair, the case must be remanded for those findings., source_sentence: What were the main legal arguments presented by the plaintiffs challenging Proposition 200's identification requirements in Arizona, and what was the District Court's initial response to their request for a preliminary injunction?
sentences: Code Crim. P. Ann., art. 38.41.

Committee Notes on Rules—2014 Amendment

Changes Made After Publication and Comment. No changes were made after publication and comment.

Amendment by Public Law

1975 —Exception (23). Pub. L. 94–149 inserted a comma immediately after “family” in catchline.

 

The Rule has been amended to clarify that if the proponent has established the stated requirements of the exception--regular business with regularly kept record, source with personal knowledge, record made timely, and foundation testimony or certification--then the burden is on the opponent to show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. While most courts have imposed that burden on the opponent, some have not. It is appropriate to impose this burden on opponent, as the basic admissibility requirements are sufficient to establish a presumption that the record is reliable.

The opponent, in meeting its burden, is not necessarily required to introduce affirmative evidence of untrustworthiness. For example, the opponent might argue that a record was prepared in anticipation of litigation and is favorable to the preparing party without needing to introduce evidence on the point. A determination of untrustworthiness necessarily depends on the circumstances.

Changes Made After Publication and Comment

In accordance with a public comment, a slight change was made to the Committee Note to better track the language of the rule.

The Rule has been amended to clarify that if the proponent has established the stated requirements of the exception--set forth in Rule 803(6)--then the burden is on the opponent to show that the possible source of the information or other circumstances indicate a lack of trustworthiness. The amendment maintains consistency with the proposed amendment to the trustworthiness clause of Rule 803(6).

Changes Made After Publication and Comment

In accordance with a public comment, a slight change was made to the Committee Note to better track the language of the rule.

The Rule has been amended to clarify that if the proponent has established that the record meets the stated requirements of the exception--prepared by a public office and setting out information as specified in the Rule--then the burden is on the opponent to show that the source of information or other circumstances indicate a lack of trustworthiness. While most courts have imposed that burden on the opponent, some have not. Public records have justifiably carried a presumption of reliability, and it should be up to the opponent to “demonstrate why a time-tested and carefully considered presumption is not appropriate.” Ellis v. International Playtex, Inc., 745 F.2d 292, 301 (4th Cir. 1984). The amendment maintains consistency with the proposed amendment to the trustworthiness clause of Rule 803(6).

The opponent, in meeting its burden, is not necessarily required to introduce affirmative evidence of untrustworthiness. For example, the opponent might argue that a record was prepared in anticipation of litigation and is favorable to the preparing party without needing to introduce evidence on the point. A determination of untrustworthiness necessarily depends on the circumstances.

Changes Made After Publication and Comment

In accordance with a public comment, a slight change was made to the Committee Note to better track the language of the rule.

Committee Notes on Rules—2017 Amendment

The ancient documents exception to the rule against hearsay has been limited to statements in documents prepared before January 1, 1998. The Committee has determined that the ancient documents exception should be limited due to the risk that it will be used as a vehicle to admit vast amounts of unreliable electronically stored information (ESI). Given the exponential development and growth of electronic information since 1998, the hearsay exception for ancient documents has now become a possible open door for large amounts of unreliable ESI, as no showing of reliability needs to be made to qualify under the exception. 

The Committee is aware that in certain cases—such as cases involving latent diseases and environmental damage—parties must rely on hardcopy documents from the past. The ancient documents exception remains available for such cases for documents prepared before 1998. Going forward, it is anticipated that any need to admit old hardcopy documents produced after January 1, 1998 will decrease, because reliable ESI is likely to be available and can be offered under a reliability-based hearsay exception. Rule 803(6) may be used for many of these ESI documents, especially given its flexible standards on which witnesses might be qualified to provide an adequate foundation. And Rule 807 can be used to admit old documents upon a showing of reliability—which will often (though not always) be found by circumstances such as that document was prepared with no litigation motive in mind, close in time to the relevant events., The owner, from the nature and necessity of the case, takes the benefit of part performance, and therefore by merely so doing does not necessarily waive anything contained in the contract. To impute to him a voluntary waiver of conditions precedent from the mere use and occupation of the building erected, unattended by other circumstances, is unreasonable and illogical because he is not in a situation to elect whether he will or will [189] not accept the benefit of an imperfect performance. To be enabled to stand upon the contract he cannot reasonably be required to tear down and destroy the edifice if he prefers it to remain. As the erection is his by annexation to the soil he may suffer it to stand, and there is no rule of law against his using it without prejudice to his rights.

The present case was evidently tried upon an erroneous theory of the law. Although partial payments were to be made as the work proceeded under the contracts, yet the consideration and condition of those payments was the performance of the work according to the plans and specifications, and in the best and most workmanlike manner, and the final payments were not to be made until after all the work was completed and certified by the architects. Although the contracts were not performed, the plaintiff has recovered all the installments, less the sum which the referee allowed as damages for the non-performance. In receiving the evidence as to the value and strength of the buildings, nothwithstanding non-performance of the contracts, evidence which could have no bearing except upon the question of damages, it is manifest that he proceeded upon views on the law in such cases which I have endeavored to show are unsound.

It is not necessary to give any opinion upon the question whether the referee might properly find upon the evidence that the defendant waived the conditions of the contract by any express approval of the work, or by any other interference or conduct on his part. We only say that, according to the settled law in this state, the plaintiff cannot recover the payments which by the terms or true construction of the contract are due only on condition of performance by him, unless he can show such performance or prove that it has been waived.[1] And the law does not adjudge that a mere silent occupation of the building by the owner amounts to a waiver, nor does it deny to him the right so to occupy and still insist upon the contract. The question of waiver of the condition [190] precedent will always be one of intention to be arrived at from all the circumstances, including the occupancy.

To conclude, there is, in a just view of the question, no hardship in requiring builders, like all other men, to perform their contracts in order to entitle themselves to payment, where the employer has agreed to pay only on that condition. It is true that such contracts embrace a variety of particulars, and that slight omissions and inadvertences may sometimes very innocently occur. These should be indulgently regarded, and they will be so regarded by courts and juries. But there can be no injustice in imputing to the contractor a knowledge of what his contract requires, nor in holding him to a substantial performance. If he has stipulated for walls of a given material and with a hard inside finish, he knows what he is to do and must perform it. If he has engaged for a given number and size of windows, joists, beams and sills, he cannot, with the specifications before him, innocently, depart from his contract. If he fails to perform when the requirement is plain, and when he can perform if he will, he has no right to call upon the courts to make a new contract for him; nor ought he to complain if the law leaves him without remedy.[1]

The judgment should be reversed and a new trial granted.

All the judges concurred in this opinion.

Judgment reversed and new trial ordered.

----------

[1] Morrell v. Irving F. Ins. Co., 33 N.Y. 447: Mason v. Hey ward, 3 Minn. 188; Mehurin v. Stone, 37 Ohio, 56.

[2] Zottman v. San Francisco, 20 Cal. 108; Mapes v. Comm'rs of Olmstead Co., 11 Minn. 371; Belt v. Stetson, 26 Minn. 415; Bozarth v. Dudley, 44 N.J. 309; Cincinnati v. Cameron, 33 Ohio, 374.

----------

[1] Cited in Cunningham v. Jones, 20 N.Y. 487; Bonesteel v. Mayor, etc., of N.Y. 22 N.Y. 166; Catlin v. Tobias, 26 N.Y. 222; Glacius v. Black, 50 N.Y., § 1973c. See *3Georgia v. Ashcroft, 539 U. S. 461, 461-462 (2003). On May 6, 2005, the United States Attorney General precleared the procedures Arizona adopted under Proposition 200.

In the District Court the plaintiffs in this action are residents of Arizona, Indian tribes, and various community organizations. In May 2006, these plaintiffs brought suit challenging Proposition 200’s identification requirements. On September 11, 2006, the District Court denied their request for a preliminary injunction, but it did not at that time issue findings of fact or conclusions of law. These findings were important because resolution of legal questions in the Court of Appeals required evaluation of underlying factual issues.

The plaintiffs appealed the denial, and the Clerk of the Court of Appeals set a briefing schedule that concluded on November 21, two weeks after the upcoming November 7 election. The plaintiffs then requested an injunction pending appeal from the Court of Appeals. Pursuant to the Court of Appeals’ rules, the request for an injunction was assigned to a two-judge motions/sereening panel. See Rule 3-3 (CA9 2002). On October 5, after receiving lengthy written responses from the State and the county officials but without oral argument, the panel issued a four-sentence order enjoining Arizona from enforcing Proposition 200’s provisions pending disposition, after full briefing, of the appeals of the denial of a preliminary injunction. The Court of Appeals offered no explanation or justification for its order. Four days later, the court denied a motion for reconsideration. The order denying the motion likewise gave no rationale for the court’s decision.

Despite the time-sensitive nature of the proceedings and the pendency of a request for emergency relief in the Court of Appeals, the District Court did not issue its findings of fact and conclusions of law until October 12. It then concluded that “plaintiffs have shown a possibility of success on the merits of some of their arguments but the Court cannot say that at this stage they have shown a strong likelihood.” *4Order in No. CV 06-1268-PHX-ROS etc. (D. Ariz., Oct. 11, 2006), pp. 7-8, App. to Application for Stay of Injunction[ … ]. The District Court then found the balance of the harms and the public interest counseled in favor of denying the injunction.

II

“A State indisputably has a compelling interest in preserving the integrity of its election process.” Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 231 (1989). Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy. Voter fraud drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised. “[T]he right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims, 377 U. S. 533, 555 (1964). Countering the State’s compelling interest in preventing voter fraud is the plaintiffs’ strong interest in exercising the “fundamental political right” to vote. Dunn v. Blumstein, 405 U. S. 330, 336 (1972) (internal quotation marks omitted). Although the likely effects of Proposition 200 are much debated, the possibility that qualified voters might be turned away from the polls would caution any district judge to give careful consideration to the plaintiffs’ challenges.

Faced with an application to enjoin operation of voter identification procedures just weeks before an election, the Court of Appeals was required to weigh, in addition to the harms attendant upon issuance or nonissuance of an injunction, considerations specific to election cases and its own institutional procedures. Court orders affecting elections, especially conflicting orders, can themselves result in voter *5confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase. So the Court of Appeals may have deemed this consideration to be grounds for prompt action. Furthermore, it might have given some weight to the possibility that the nonprevailing parties would want to seek en banc review. In the Ninth Circuit that procedure, involving voting by all active judges and an en banc hearing by a court of 15, can consume further valuable time. These considerations, however, cannot be controlling here. It was still necessary, as a procedural matter, for the Court of Appeals to give deference to the discretion of the District Court., source_sentence: What are the potential sanctions a court may impose on a party that fails to disclose information or identify a witness as required by Rule 26(a) or (e)?
sentences: Although Article III expressly contemplated jurisdiction over suits between States and individuals, nothing in the Article or in any other part of the Constitution suggested the States could not assert immunity from private suit in their own courts or that Congress had the power to abrogate sovereign immunity there. . . .

2

[25] Our historical analysis is supported by early congressional practice, which provides "contemporaneous and weighty evidence of the Constitution's meaning." Printz. [E]arly Congresses did not believe they had the power to authorize private suits against the States in their own courts. . . .

3

[26] The theory and reasoning of our earlier cases suggest the States do retain a constitutional immunity from suit in their own courts. We have often described the States' immunity in sweeping terms, without reference to whether the suit was prosecuted in state or federal court. [citations omitted]  . . . .As it is settled doctrine that neither substantive federal law nor attempted congressional abrogation under Article I bars a State from raising a constitutional defense of sovereign immunity in federal court, our decisions suggesting that the States retain an analogous constitutional immunity from private suits in their own courts support the conclusion that Congress lacks the Article I power to subject the States to private suits in those fora.

4

[27] Our final consideration is whether a congressional power to subject nonconsenting States to private suits in their own courts is consistent with the structure of the Constitution. We look both to the essential principles of federalism and to the special role of the state courts in the constitutional design.

[28] Although the Constitution grants broad powers to Congress, our federalism requires that Congress treat the States in a manner consistent with their status as residuary sovereigns and joint participants in the governance of the Nation. . . .

[29] Petitioners contend that immunity from suit in federal court suffices to preserve the dignity of the States. Private suits against nonconsenting States, however, present "the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties," regardless of the forum. Not only must a State defend or default but also it must face the prospect of being thrust, by federal fiat and against its will, into the disfavored status of a debtor, subject to the power of private citizens to levy on its treasury or perhaps even government buildings or property which the State administers on the public's behalf.

[30] In some ways, of course, a congressional power to authorize private suits against nonconsenting States in their own courts would be even more offensive to state sovereignty than a power to authorize the suits in a federal forum. Although the immunity of one sovereign in the courts of another has often depended in part on comity or agreement, the immunity of a sovereign in its own courts has always been understood to be within the sole control of the sovereign itself. A power to press a State's own courts into federal service to coerce the other branches of the State, furthermore, is the power first to turn the State against itself and ultimately to commandeer the entire political machinery of the State against its will and at the behest of individuals. . . .

[31] It is unquestioned that the Federal Government retains its own immunity from suit not only in state tribunals but also in its own courts. In light of our constitutional system recognizing the essential sovereignty of the States, we are reluctant to conclude that the States are not entitled to a reciprocal privilege.

[32] Underlying constitutional form are considerations of great substance. Private suits against nonconsenting States—especially suits for money damages—may threaten the financial integrity of the States. . . .  

[33] A general federal power to authorize private suits for money damages would place unwarranted strain on the States' ability to govern in accordance with the will of their citizens. Today, as at the time of the founding, the allocation of scarce resources among competing needs and interests lies at the heart of the political process. While the judgment creditor of a State may have a legitimate claim for compensation, other important needs and worthwhile ends compete for access to the public fisc. Since all cannot be satisfied in full, it is inevitable that difficult decisions involving the most sensitive and political of judgments must be made. If the principle of representative government is to be preserved to the States, the balance between competing interests must be reached after deliberation by the political process established by the citizens of the State, not by judicial decree mandated by the Federal Government and invoked by the private citizen. . . . When the Federal Government asserts authority over a State's most fundamental political processes, it strikes at the heart of the political accountability so essential to our liberty and republican form of government. . . ., (C) Payment of Expenses. Instead of or in addition to the orders above, the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.

(c) Failure to Disclose, to Supplement an Earlier Response, or to Admit.

(1) Failure to Disclose or Supplement. If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:

(A) may order payment of the reasonable expenses, including attorney’s fees, caused by the failure;

(B) may inform the jury of the party’s failure; and

(C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)–(vi).

(2) Failure to Admit. If a party fails to admit what is requested under Rule 36 and if the requesting party later proves a document to be genuine or the matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses, including attorney’s fees, incurred in making that proof. The court must so order unless:

(A) the request was held objectionable under Rule 36(a);

(B) the admission sought was of no substantial importance;

(C) the party failing to admit had a reasonable ground to believe that it might prevail on the matter; or

(D) there was other good reason for the failure to admit.

(d) Party’s Failure to Attend Its Own Deposition, Serve Answers to Interrogatories, or Respond to a Request for Inspection.

(1) In General.

(A) Motion; Grounds for Sanctions. The court where the action is pending may, on motion, order sanctions if:

(i) a party or a party’s officer, director, or managing agent—or a person designated under Rule 30(b)(6) or 31(a)(4)—fails, after being served with proper notice, to appear for that person’s deposition; or

(ii) a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response.

(B) Certification. A motion for sanctions for failing to answer or respond must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action.

(2) Unacceptable Excuse for Failing to Act. A failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c).

(3) Types of Sanctions. Sanctions may include any of the orders listed in Rule 37(b)(2)(A)(i)–(vi). Instead of or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.

(e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.

(f) Failure to Participate in Framing a Discovery Plan. If a party or its attorney fails to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f), the court may, after giving an opportunity to be heard, require that party or attorney to pay to any other party the reasonable expenses, including attorney’s fees, caused by the failure., Could the court have followed the majority rule and still afforded the optionee relief? See Note, 63 Calif. L. Rev. 11, 126 (1965) and Sy Jack Realty Co. v. Pergament Syosset Corp., 27 N.Y.2d 449, 318 N. Y.S.2d 720, 267 N.E.2d 462 (1971).

3. In the principal case, the optionee's letter, though sent on time, was never received by the optionor. The general rule with respect to acceptances is that they are effective on dispatch even though they are lost or delayed in the course of transit. The leading case announcing this rule is Household Fire & Carriage Acc. Ins. Co. v. Grant, 4 Ex. D. 216 (1879). See also Restatement Second §56 and §63 Comment b; 37 Mich. L. Rev. 655 (1939). Do you agree with the rule?

 

 

 

4.9.11

C. Langdell, Summary of the Law of Contracts 20-21 (2d ed. 1880)

 

C. LANGDELL, SUMMARY OF THE LAW OF CONTRACTS 20-21 (2d ed. 1880): "It has been claimed that the purposes of substantial justice, and the interests of contracting parties as understood by themselves, will be best served by holding that the contract is complete the moment the letter of acceptance is mailed; and cases have been put to show that the contrary view would produce not only unjust but absurd results. The true answer to this argument is, that it is irrelevant; but, assuming it to be relevant, it may be turned against those who use it without losing any of its strength. The only cases of real hardship are where there is a miscarriage of the letter of acceptance, and in those cases a hardship to one of the parties is inevitable. Adopting one view, the hardship consists in making one liable on a contract which he is ignorant of having made; adopting the other view, it consists of depriving one of the benefit of a contract which he supposes he has made. Between these two evils the choice would seem to be clear: the former is positive, the latter merely negative; the former imposes a liability to which no limit can be placed, the latter leaves everything in statu quo. As to making provision for the contingency of the miscarriage of a letter, this is easy for the person who sends it, while it is practically impossible for the person to whom it is sent."

 

 

 

4.9.12

Llewellyn, Our Case-Law of Contract: Offer and Acceptance

 

LLEWELLYN, OUR CASE-LAW OF CONTRACT: OFFER AND ACCEPTANCE (pt. 2), 48 Yale L.J. 779, 795 (1939): "As between hardship on the offeror which is really tough, and hardship on the offeree which would be even tougher,[130] the vital reason for throwing the hardship of an odd delayed or lost letter upon the offeror remains this: the offeree is already relying, with the best reason in the world, on the deal being on; the offeror is only holding things open; and, in view of the efficiency of communication facilities, we can protect the offeree in all these deals at the price of hardship on offerors in very few of them."

[130] For regarding the hardship of an opposing rule as even tougher on the offeree there are two good reasons. In the first place, the ingrained usage of business is to answer letters which look toward deals, but the usage is not so clear about acknowledging letters which close deals. The absence of an answer to a letter of offer is much more certain to lead to inquiry than is the absence of an answer to a letter of acceptance, so that the party bitten by the mischance has under our rule a greater likelihood of being aware of uncertainty and of speedily discovering his difficulty. This goes to the hazards of communication. In the second place, and regarding the time of closing, the risk of the market shifting against the offeror, unbalanced by the chance of gain if it shifts in his favor, rests under our law on the offeror during one transmission period plus time for answer — subject to effective telegraphic or telephone communication. He wants the deal; he takes that risk. But to fail to close the deal as against the offeree until the letter of agreement arrives is to extend that unbalanced risk of the market without observable reason., source_sentence: Discuss the significance of the fourth fair-use factor in the context of Koons's use of "Silk Sandals." How does the court's conclusion reflect the balance between copyright law and the promotion of artistic expression?
sentences: Any high-speed pursuit is inherently dangerous to the lives of the pursuing police officers. In even the most ethereal of abstractions, it is not possible to imagine that the ‘wanton disregard’ of the person fleeing does not encompass disregard for the safety of the pursuing officers.” [ … ]Unlike the majority, I find the Court of Appeal’s statement in Johnson persuasive.

Indeed, I agree with Justice Baxter that if any offense should easily qualify as inherently dangerous, Vehicle Code section 2800.2 certainly would.[ … ]

 I would abrogate the nonstatutory second degree felony-murder rule and leave it to the Legislature to define precisely what conduct subjects a defendant to strict criminal liability.

BAXTER, J., Dissenting.

[ … ]

The majority focus upon subdivision (b) of section 2800.2, which was added in 1996. [ … ] The majority reasons that, because some statutory “points” violations are not inherently dangerous, one can commit the unitary felony described in both subdivisions of section 2800.2 in a way that does not place human life at risk.

I am not persuaded. Subdivision (a) of section 2800.2 gives clear and specific notice that one who, in order to elude police pursuit, drives with reckless indifference to safety is guilty of a felony. Such reckless driving is, of course, inherently dangerous—by definition, it creates a substantial risk that someone will be killed. Moreover, there is no doubt that defendant committed exactly the reckless endangerment of human life forbidden by the statute. [ … ]

[ … ]

[Here] principal reason for applying the felony-murder rule is present. The purpose of the felony-murder doctrine “is to deter those engaged in felonies from killing negligently or accidentally.” (Hansen, supra, 9 Cal.4th 300, 308, quoting People v. Satchell (1971) 6 Cal.3d 28, 43 [ … ].) Because the doctrine absolves the prosecution from proving malice, it properly applies when “the killer is engaged in a felony whose inherent danger to human life renders logical an imputation of malice on the part of all who commit it.” (Ibid.)

Those requirements are met here. It is appropriate to deter persons from killing negligently or accidentally—as did defendant—while engaged—as was defendant—in recklessly unsafe driving to elude police pursuit, a specific form of conduct made felonious by section 2800.2, subdivision (a). Moreover, the inherent danger such conduct poses to human life is so clear that it is logical to impute malice to anyone who commits it.

Under such circumstances, it perverts reason to refuse to apply the felony-murder rule simply because subdivision (b) of section 2800.2 may additionally describe a nondangerous felony. Where society has warned, in plain statutory words, that the particular conduct committed by the defendant *1144is both dangerous and felonious, it should not matter that the statute may forbid non-dangerous conduct as well.

It is worth noting that, although the Legislature elected to include subdivision (b) as part of section 2800.2, it could just as easily have added a separate section, establishing a distinct felonious offense of committing three “points” violations while driving to elude a peace officer. This would equally have satisfied the apparent legislative purpose to deter flight from the police by expanding the circumstances under which driving to elude a pursuing police officer would constitute a felony. [ … ] 

[ … ] If subdivision (a) described an inherently dangerous felony before the addition of subdivision (b) in 1996 [ … ], the unchanged words of that subdivision equally do so following the 1996 amendment [ … ].

[ … ]

 

 

 

9.5.2.8

Notes & Questions (People v. Howard)

 

Notes and Questions

1.    Understanding Felony Murder. How would you summarize the rule statement from Howard if you were writing it in a brief (or on an exam)? Explain, in your own works, why the court finds Mr. Howard not guilty.

2.    Deep Thinking. In the case, we learn that Mr. Howard was driving a car that he stole, earlier that day. Why isn’t that more serious crime the subject of his felony murder prosecution? How would you change the facts of the case so that the car theft could serve as the target crime for Mr. Howard’s felony murder prosecution? 

3.    A Dubious Doctrine., On 22 December 1985, defendant John Forrest admitted his critically ill father, Clyde Forrest, Sr., to Moore Memorial Hospital. Defendant’s father, who had previously been hospitalized, was suffering from numerous serious ailments, including severe heart disease, hypertension, a thoracic aneurysm, numerous pulmonary emboli, and a peptic ulcer. By the morning of 23 December 1985, his medical condition was determined to be unbeatable and terminal. Accordingly, he was classified as “No Code,” meaning that no extraordinary measures would be used to save his life, and he was moved to a more comfortable room.

On 24 December 1985, defendant went to the hospital to visit his ailing father. No other family members were present in his father’s room when he arrived. While one of the nurse’s assistants was tending to his father, defendant told her, “There is no need in doing that. He’s dying.” She responded, “Well, I think he’s better.” The nurse’s assistant noticed that defendant was sniffing as though crying and that he kept his hand in his pocket during their conversation. She subsequently went to get the nurse.

When the nurse’s assistant returned with the nurse, defendant once again stated his belief that his father was dying. The nurse tried to comfort defendant, telling him, “I don’t think your father is as sick as you think he is.” Defendant, very upset, responded, “Go to hell. I’ve been taking care of him for years. I’ll take care of him.” Defendant was then left alone in the room with his father.

Alone at his father’s bedside, defendant began to cry and to tell his father how much he loved him. His father began to cough, emitting a gurgling and rattling noise. Extremely upset, defendant pulled a small pistol from his pants pocket, put it to his father’s temple, and fired. He subsequently fired three more times and walked out into the hospital corridor, dropping the gun to the floor just outside his father’s room.

Following the shooting, defendant, who was crying and upset, neither ran nor threatened anyone. Moreover, he never denied shooting his father and talked openly with law enforcement officials. Specifically, defendant made the following oral statements: “You can’t do anything to him now. He’s out of his suffering.” “I killed my daddy.” “He won’t have to suffer anymore.” “I know they can burn me for it, but my dad will not have to suffer anymore.” “I know the doctors couldn’t do it, but I could.” “I promised my dad I wouldn’t let him suffer.”

[ … ]Though defendant’s father had been near death as a result of his medical condition, the exact cause of the deceased’s death was determined to be the four point-blank bullet wounds to his head. Defendant’s pistol was a single-action .22-calibre five-shot revolver. The weapon, which had to be cocked each time it was fired, contained four empty shells and one live round.

At the close of the evidence, defendant’s case was submitted to the jury for one of four possible verdicts: first-degree murder, second-degree murder, voluntary manslaughter, or not guilty. After a lengthy deliberation, the jury found defendant guilty of first-degree murder. [ … ]

[ … ]

 In his second assignment of error, defendant asserts that the trial court committed reversible error in denying his motion for directed verdict as to the first-degree murder charge. Specifically, defendant argues that the trial court’s submission of the first-degree murder charge was improper because there was insufficient evidence of premeditation and deliberation presented at trial. We do not agree[ … ].

We recently addressed this very issue in the case of State v. Jackson, 317 N.C. 1[ … ]. Our analysis of the relevant law in that case is instructive in the case at bar:

Before the issue of a defendant’s guilt may be submitted to the jury, the trial court must be satisfied that substantial evidence has been introduced tending to prove each essential element of the offense charged [ … ].

First-degree murder is the intentional and unlawful killing of a human being with malice and with premeditation and deliberation. [ … ]

Premeditation and deliberation relate to mental processes and ordinarily are not readily susceptible to proof by direct evidence. Instead, they usually must be proved by circumstantial evidence., 17 U.S.C. § 107(4).[9] The fourth fair-use factor greatly favors Koons.

[259] CONCLUSION

Having explored the statutory factors and weighed them together in light of the purposes of copyright, Campbell, 510 U.S. at 78, we think that the district court's conclusion was correct — that copyright law's goal of "promoting the Progress of Science and useful Arts," U.S. Const., art. I, § 8, cl. 8, would be better served by allowing Koons's use of "Silk Sandals" than by preventing it, see Castle Rock Entm't, 150 F.3d at 141. We therefore conclude that neither he nor the other defendants engaged in or are liable for copyright infringement. We affirm the judgment of the district court.

-------[ … ]

64.

----------

[*] The Honorable J. Garvan Murtha of the United States District Court for the District of Vermont, sitting by designation.

[1] See E. Kenly Ames, Note, Beyond Rogers v. Koons: A Fair Use Standard for Appropriation, 93 Colum. L.Rev. 1473, 1477-80 (1993).

[2] Guggenheim's figures for catalogue and postcard sales include sales at the Deutsche Guggenheim Berlin. It is possible, therefore, that those sales are double-counted in Deutsche Bank's and Guggenheim's earnings calculations.

[3] As the Supreme Court noted in Campbell, however, a finding of transformativeness "is not absolutely necessary for a finding of fair use." Campbell, 510 U.S. at 579, 114 S.Ct. 1164 (citing Sony Corp. of Am. v. Universal Studios, Inc., 464 U.S. 417, 455 n. 40, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984)); see also 17 U.S.C. § 107 (listing "multiple copies for classroom use" as among the categories of potentially fair uses); Rebecca Tushnet, Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It, 114 Yale L.J. 535, 555 (2004) (noting that historically some forms of "pure copying" were "at the core of fair use"). Nor is transformativeness necessarily the only important factor. See Campbell, 510 U.S. at 578, 114 S.Ct. 1164 ("[T]he four statutory factors . . . [a]re all to be explored, and the results weighed together, in light of the purposes of copyright.").

[4] It has been suggested that the exploitation of new, complementary markets is the hallmark of fair use. See Ty, Inc. v. Publ'ns Int'l, 292 F.3d 512, 517 (7th Cir. 2002) ("[C]opying that is complementary to the copyrighted work (in the sense that nails are complements of hammers) is fair use, but copying that is a substitute for the copyrighted work (in the sense that nails are substitutes for pegs or screws), or for derivative works from the copyrighted work, is not fair use." (citation omitted)); see also 4-13 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.05[B][1] (2006) ("[I]f . . . the defendant's work, although containing substantially similar material, performs a different function than that of the plaintiff's, the defense of fair use may be invoked."). But as the Seventh Circuit recognized, this reasoning is in tension with the Copyright Act's express grant to copyright holders of rights over derivative works. See Ty, Inc., 292 F.3d at 518 ("Were control of derivative works not part of a copyright owner's bundle of rights, it would be clear that [defendant's] books fell on the complement side of the divide and so were sheltered by the fair-use defense."). A derivative use can certainly be complementary to, or fulfill a different function from, the original.

[5] Koons's clear conception of his reasons for using "Silk Sandals," and his ability to articulate those reasons, ease our analysis in this case. We do not mean to suggest, however, that either is a sine qua non for a finding of fair use — as to satire or more generally.

[6] We have said that when "'the copyrighted [material is] unpublished, the second [fair-use] factor weighs heavily in favor'" of the plaintiff., source_sentence: In the context of supporting factual positions in a legal motion, what are the two primary ways a party can assert that a fact cannot be genuinely disputed according to the procedures outlined in section (c)(1)?
sentences: I will not be requiring you to read these materials. Nor will you be tested on them. After discussions with a number of colleagues, I decided that I will present an optional lecture or two on sexual assault.

 

 

 

 

13.1

Introduction

 

To a greater degree than any of the other crimes we study in this class, the very definition of rape has been a subject of dispute and reform in recent years. Perhaps that is because the basic result element that rape law criminalizes—sexual intercourse—is not, unlike death or battery, itself considered bad. When someone intentionally kills another, there is usually little question (except in cases of self-defense) that the result is bad and that a crime may have occurred. Unlike most intentional killing, intentional sex is not inherently wrong. Indeed, in some situations, much of the evidence of rape may rest in the perceptions and interpretations of the involved parties. 

The traditional elements of rape law are: 1) sexual intercourse; 2) with force; 3) and lack of consent. Because the sexual intercourse element of rape can be difficult to distinguish from lawful, intentional behavior, rape law has struggled to create a regime that balances the punishment of wrongdoers with the protection of the rights of the accused. Originally, rape law established strict rules governing punishable behavior that were under-inclusive and strongly protected accused men: for example, a claim of rape had to include the use of physical force by the accused and physical resistance by the victim. Additionally, there was a spousal exception to rape, so that husbands could not be criminally liable for rape of their wives. 

As the cases in this section demonstrate, however, rape law reform in the past several decades has dramatically affected these requirements. Namely, feminist legal reformers have challenged and in many jurisdictions weakened or eliminated the force requirement. That has shifted more legal focus onto the question of whether there was consent. Consider what problems consent itself may have as a central element of rape law. As you read the cases and essays in this section, consider how different formulations of rape law balance several very serious considerations of our criminal system: punishing wrongdoers; differentiating between levels of blameworthiness; and protecting the rights of defendants. What evidentiary or normative roles did the traditional rape requirements play? What are the risks of limiting or removing them? How should our system balance the risks of over-inclusivity and under-inclusivity? What social and intimate relationships between men and women do the various possible rape rules promote and change? And as always, how do these questions implicate the justifications of punishment such as retribution and deterrence?

 

 

 

 

13.1.1

Excerpt from Criminal Law: Cases, Controversies and Problems (West Academic Publishing 2019) by Joseph E. Kennedy (used with permission).

 

https://app.box.com/s/ixs8jw1d0oi45q68xvpk3vl69m2p6y71

 

 

 

 

13.2

Statutes

 

Consider some of these questions while you are reviewing these statutes.

How do the statutes define sex, if at all? 

How do they define force, if at all? 

What is the mens rea required? 

How do you think they balance the rights of the accused with the harm to be avoided? 

As a defense attorney, which one would you find most defendant-friendly? 

As a prosecutor, which one would you find most prosecution-friendly?

 

 

 

 

13.2.1

Force v. Non-Consent: An Ongoing Struggle to Define Rape

 

After reading the passage from Rusk v. State, below, compare and contrast the MPC's section from 1962 with the proposed section governing sexual assault.

 

Passages taken from the Dissent of Rusk v. State, 43 Md. App. 476, 406 A.2d 624 (1979), rev'd, 289 Md. 230, 424 A.2d 720 (1981)):

Unfortunately, courts,[ … ] often tend to confuse these two elements force and lack of consent and to think of them as one. They are not. They mean, and require, different things. [ … ]What seems to cause the confusion what, indeed, has become a common denominator of both elements is the notion that the victim must actively resist the attack upon her., (c) Procedures.

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.

(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.

(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

(d) When Facts are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:

(1) defer considering the motion or deny it;

(2) allow time to obtain affidavits or declarations or to take discovery; or

(3) issue any other appropriate order.

(e) Failing to Properly Support or Address a Fact. If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may:

(1) give an opportunity to properly support or address the fact;

(2) consider the fact undisputed for purposes of the motion;

(3) grant summary judgment if the motion and supporting materials — including the facts considered undisputed — show that the movant is entitled to it; or

(4) issue any other appropriate order.

(f) Judgment Independent of the Motion. After giving notice and a reasonable time to respond, the court may:

(1) grant summary judgment for a nonmovant;

(2) grant the motion on grounds not raised by a party; or

(3) consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute.

(g) Failing to Grant All the Requested Relief. If the court does not grant all the relief requested by the motion, it may enter an order stating any material fact — including an item of damages or other relief — that is not genuinely in dispute and treating the fact as established in the case.

(h) Affidavit or Declaration Submitted in Bad Faith. If satisfied that an affidavit or declaration under this rule is submitted in bad faith or solely for delay, the court — after notice and a reasonable time to respond — may order the submitting party to pay the other party the reasonable expenses, including attorney’s fees, it incurred as a result. An offending party or attorney may also be held in contempt or subjected to other appropriate sanctions.

 

 

 

11.1.3

Adickes v. S.H. Kress & Co.

 

Supreme Court of the United States

398 U.S. 144, 26 L. Ed. 2d 142, 90 S. Ct. 1598, 1970 U.S. LEXIS 31, SCDB 1969-101

No. 79

1970-06-01

[ … ]

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.

[ … ]

MR. JUSTICE HARLAN delivered the opinion of the Court.

Petitioner, Sandra Adickes, a white school teacher from New York, brought this suit in the United States District Court for the Southern District of New York against respondent S. H. Kress & Co. ("Kress") to recover damages under 42 U. S. C. § 1983[1] for an alleged violation of her constitutional rights under the Equal Protection Clause of the Fourteenth Amendment., Id. at 345.

The Court's injunction barred the Defendants from: "posting on any Internet web site" DeCSS; "in any other way . . . offering to the public, providing, or otherwise trafficking in DeCSS"; violating the anti-trafficking provisions of the DMCA in any other manner, and finally "knowingly linking any Internet web site operated by them to any other web site containing DeCSS, or knowingly maintaining any such link, for the purpose of disseminating DeCSS." Universal II, 111 F. Supp. 2d at 346-47.

The Appellants have appealed from the permanent injunction. The United States has intervened in support of the constitutionality of the DMCA. We have also had the benefit of a number of amicus curiae briefs, supporting and opposing the District Court's judgment. After oral argument, we invited the parties to submit responses to a series of specific questions, and we have received helpful responses.

Discussion

I. Narrow Construction to Avoid Constitutional Doubt

The Appellants first argue that, because their constitutional arguments are at least substantial, we should interpret the statute narrowly so as to avoid constitutional problems. They identify three different instances of alleged ambiguity in the statute that they claim provide an opportunity for such a narrow interpretation.

First, they contend that subsection 1201(c)(1), which provides that "[n]othing in this section shall affect rights, remedies, limitations or defenses to copyright infringement, including fair use, under this title," can be read to allow the circumvention of encryption technology protecting copyrighted material when the material will be put to "fair uses" exempt from copyright liability.[12] We disagree that subsection 1201(c)(1) permits such a reading. Instead, it clearly and simply clarifies that the DMCA targets the circumvention of digital walls guarding copyrighted material (and trafficking in circumvention tools), but does not concern itself with the use of those materials after circumvention has occurred. Subsection 1201(c)(1) ensures that the DMCA is not read to prohibit the "fair use" of information just because that information was obtained in a manner made illegal by the DMCA. The Appellants' much more expansive interpretation of subsection 1201(c)(1) is not only outside the range of plausible readings of the provision, but is also clearly refuted by the statute's legislative history.[13] See Commodity Futures Trading [444] Commission v. Schor, 478 U.S. 833, 841 (1986) (constitutional doubt canon "does not give a court the prerogative to ignore the legislative will").

Second, the Appellants urge a narrow construction of the DMCA because of subsection 1201(c)(4), which provides that "[n]othing in this section shall enlarge or diminish any rights of free speech or the press for activities using consumer electronics, telecommunications, or computing products." This language is clearly precatory: Congress could not "diminish" constitutional rights of free speech even if it wished to, and the fact that Congress also expressed a reluctance to "enlarge" those rights cuts against the Appellants' effort to infer a narrowing construction of the Act from this provision.

Third, the Appellants argue that an individual who buys a DVD has the "authority of the copyright owner" to view the DVD, and therefore is exempted from the DMCA pursuant to subsection 1201(a)(3)(A) when the buyer circumvents an encryption technology in order to view the DVD on a competing platform (such as Linux). The basic flaw in this argument is that it misreads subsection 1201(a)(3)(A). That provision exempts from liability those who would "decrypt" an encrypted DVD with the authority of a copyright owner, not those who would "view" a DVD with the authority of a copyright owner.[14] In any event, the Defendants offered no evidence that the Plaintiffs have either explicitly or implicitly authorized DVD buyers to circumvent encryption technology to support use on multiple platforms.[15]

We conclude that the anti-trafficking and anti-circumvention provisions of the DMCA are not susceptible to the narrow interpretations urged by the Appellants. We therefore proceed to consider the Appellants' constitutional clai[ … ]

45.

III. Constitutional Challenges Based on the First Amendment

A. Applicable Principles

Last year, in one of our Court's first forays into First Amendment law in the digital age, we took an "evolutionary" approach to the task of tailoring familiar constitutional rules to novel technological circumstances, favoring "narrow" holdings that would permit the law to mature on a "case-by-case" basis. See Name.Space, Inc.
pipeline_tag: sentence-similarity
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verified: no, type: cosine_recall@3
value: 0.39366250472947406
name: Cosine Recall@3
verified: no, type: cosine_recall@5
value: 0.47279606507756333
name: Cosine Recall@5
verified: no, type: cosine_recall@10
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name: Cosine Recall@10
verified: no, type: cosine_ndcg@10
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name: Cosine Ndcg@10
verified: no, type: cosine_mrr@10
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name: Cosine Mrr@10
verified: no, type: cosine_map@100
value: 0.40507871113478044
name: Cosine Map@100
verified: no, task: type: information-retrieval
name: Information Retrieval
dataset: name: dim 256
type: dim_256
metrics: type: cosine_accuracy@1
value: 0.5514188422247446
name: Cosine Accuracy@1
verified: no, type: cosine_accuracy@3
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name: Cosine Accuracy@3
verified: no, type: cosine_accuracy@5
value: 0.8229284903518729
name: Cosine Accuracy@5
verified: no, type: cosine_accuracy@10
value: 0.8994324631101022
name: Cosine Accuracy@10
verified: no, type: cosine_precision@1
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name: Cosine Precision@1
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verified: no, type: cosine_precision@5
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verified: no, type: cosine_precision@10
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verified: no, type: cosine_recall@1
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name: Cosine Recall@1
verified: no, type: cosine_recall@3
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name: Cosine Recall@3
verified: no, type: cosine_recall@5
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verified: no, type: cosine_recall@10
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verified: no, type: cosine_ndcg@10
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name: Cosine Ndcg@10
verified: no, type: cosine_mrr@10
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name: Cosine Mrr@10
verified: no, type: cosine_map@100
value: 0.39788163185255543
name: Cosine Map@100
verified: no, task: type: information-retrieval
name: Information Retrieval
dataset: name: dim 128
type: dim_128
metrics: type: cosine_accuracy@1
value: 0.51577752553916
name: Cosine Accuracy@1
verified: no, type: cosine_accuracy@3
value: 0.6869466515323496
name: Cosine Accuracy@3
verified: no, type: cosine_accuracy@5
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verified: no, type: cosine_accuracy@10
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verified: no, type: cosine_precision@5
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verified: no, type: cosine_precision@10
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verified: no, type: cosine_recall@1
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verified: no, type: cosine_recall@3
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name: Cosine Recall@3
verified: no, type: cosine_recall@5
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verified: no, type: cosine_map@100
value: 0.37689502932030106
name: Cosine Map@100
verified: no, task: type: information-retrieval
name: Information Retrieval
dataset: name: dim 64
type: dim_64
metrics: type: cosine_accuracy@1
value: 0.4460839954597049
name: Cosine Accuracy@1
verified: no, type: cosine_accuracy@3
value: 0.6086265607264473
name: Cosine Accuracy@3
verified: no, type: cosine_accuracy@5
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verified: no, type: cosine_accuracy@10
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verified: no, type: cosine_precision@10
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verified: no, type: cosine_recall@1
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name: Cosine Recall@1
verified: no, type: cosine_recall@3
value: 0.3185679152478244
name: Cosine Recall@3
verified: no, type: cosine_recall@5
value: 0.3895005675368899
name: Cosine Recall@5
verified: no, type: cosine_recall@10
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name: Cosine Recall@10
verified: no, type: cosine_ndcg@10
value: 0.4332106064878949
name: Cosine Ndcg@10
verified: no, type: cosine_mrr@10
value: 0.5331181197412749
name: Cosine Mrr@10
verified: no, type: cosine_map@100
value: 0.3364905185021107
name: Cosine Map@100
verified: no
Likes: 1 | All-time downloads: 2334
Created: 2025-02-18 15:44:47