Supreme Court In Review: Recent Notable Decisions

Kaytie Hobbs, Blog Chair, University of Cincinnati Law Review

The Supreme Court is spending these hot June days handing down decision from its 2018 term. This blog post surveys a few of the more interesting holdings so far: 

Gamble v. United States[1]

Held: Dual-sovereignty doctrine is upheld, allowing states and the federal government to prosecute people for the same conduct separately under their own laws. 

The Fifth Amendment of the U.S. Constitution provides that it is unconstitutional for any person to be “twice put in jeopardy” “for the same offence.”[2]Terance Gamble relied on this clause when he argued that his prosecution in state and federal court for the same conduct violated the Constitution.[3]Gamble, a felon, was convicted by Alabama for unlawfully possessing a firearm before the U.S. instituted a separate proceeding against him for the same conduct.[4]

However, the Court has held repeatedly that a crime under one sovereign is not the same offenceas a crime under another sovereign within the meaning of the Amendment.[5]What followed was the dual-sovereignty doctrine: a state and the federal government may prosecute an individual for the same conduct that is brought separately under state law and federal law.[6]

Writing for the majority, Justice Alito explained that “at its core,” this provision prohibited second prosecutions against people who are acquitted or convicted of offenses.[7]The next question, then, is what can be considered an “offence” within the meaning of the Amendment. 

Looking at the text of the Fifth Amendment, the Court concluded that the dual-sovereignty rule flows from the language of the Amendment itself.[8]Because those in 1791 would understand an “offence” to be a violation of a law, and because those laws would be written by one sovereign, the Court found that two sovereigns would create two laws, and therefore two “offences.” [9]

The Court also looked to precedent to strengthen its conclusion. The cited cases noted that one act might constitute two offences,[10]and that extraneous concerns like public safety could dictate separate prosecutions by states and federal governments.[11]

A practical issue concerning foreign courts was raised as well. Illustrating the problem, the majority crafted an example of a murder of a U.S. citizen in another country.[12]Without the dual-sovereignty rule, American courts would be unable to prosecute offenses that a foreign court has tried – in this example, the offense being the fictitious murder.[13]The U.S. has a valid interest in prosecuting that crime for several reasons, ranging from national-security concerns to doubting the foreign country’s judicial system.[14]

For all of those reasons, the Court upheld the dual-sovereignty rule; practically speaking, this means that prosecutors on state and federal levels will continue to prosecute people under both legal systems without fear that convictions would be later overturned. 

Mission Product Holdings, Inc. v. Tempnology, LLC[15]

Held: A debtor’s rejection of a contract constitutes a breach and therefore does not take away the other party’s rights under that contract. 

Debtors filing for bankruptcy have the option to reject executory contracts—contracts that have not been fully performed—under Section 365 of the Bankruptcy Code.[16]The Code further states that a debtor’s rejection of such a contract constitutes a breach.[17]In this case, the Court considered whether a debtor who rejected such a contract would rescind the licensee’s rights under that contract.[18]

Writing for the majority, Justice Kagan answered in the negative, holding that a rejection of the contract does not rescindit, but instead is considered a breach.[19]Because “breach” is not a specialized bankruptcy term, the Court looked to contract law, which provides certain avenues to the injured party of a contractual breach. 

To explain the concept under ordinary contract law, the Court provided an imaginary example of an executory contract outside of the bankruptcy world: a photocopier being leased to a law firm by a dealer.[20]The dealer breaks the agreement by no longer servicing the photocopier, leaving the law firm with two choices: (1) sue for damages and continue to use the photocopier, or (2) return the machine and stop payments.[21]Delving back into the bankruptcy realm, the Court concluded that in bankruptcy, the same rule applies.[22]

From a practical standpoint, this decision could be monumental. As the majority pointed out, this section applies to any executory contracts – which applies to many types of licensing agreements, ranging from trademarks (at issue in this case) to other types of property.[23]

Manhattan Community Access Corp. v. Halleck[24]

Held: Operating a public access channel on a cable system is not a traditionally and exclusive public function, and private entities are not transformed into state actors subject to the First Amendment through that operation alone.

The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.”[25]Because the First Amendment applies to governmentactors, the Court has crafted a test to evaluate situations where private entities become state actors.[26]

There are three avenues available to prove a private actor has transformed into a state actor: (1) when it performs a “traditional public function”; (2) the government compels the private entity to act a certain way; or (3) the government and the private entity work together.[27]

Here, the private entity was MNN, a private nonprofit corporation that operated public access channels.[28]MNN declined to air a film made by respondents, who then sued, arguing violation of their First Amendment rights based on content discrimination. 

The Court was tasked with determining whether MNN was a private or state actor. The filmmakers argued that operating the public access channels was a government function, but the Court disagreed and found that historically, it was not exclusively a government action. The Court noted that operation was performed by private cable operators, private nonprofits, cities, and other community organizations.[29]

They also argued that MNN transformed itself into a state actor due to operating a public place for speech; again, the Court disagreed. Justice Kavanaugh stated that private entities frequently opened itself to speech, likening this situation to a comedy club open mic night or a grocery store’s community bulletin.[30]

By holding that MNN was not a state actor solely by virtue of operating public access channels allows it to retain editorial discretion, and sets favorable precedent for other private entities operating similar channels. 

[1]Gamble v. United States, Slip Op. No. 17-646 (U.S. Jun. 17, 2019).

[2]U.S. Const. amend. V. 

[3]Gamble, Slip. Op. No. 17-646.


[5]See Fox v. Ohio, 46 U.S. 410 (1847); United States v. Marigold, 50 U.S. 560 (1850).

[6]United States v. Lanza, 260 U.S. 377, 382 (1922) (holding that conduct constituting crimes by both federal and state sovereignties are offenses against both, and therefore “may be punished by each.”) 

[7]Gamble, Slip. Op. No. 17-646.



[10]50 U.S. 560.

[11]Fox v. Ohio, 46 U.S. 410 (1847).

[12]Gamble, Slip. Op. No. 17-646 at *5.



[15]Mission Prod. Holdings, Inc. v. Tempnology, LLC, No. 17-1657 (U.S. May. 20, 2019)

[16]11 U.S.C.§ 365(a). 

[17]11 U.S.C. § 365(g).

[18]Mission, No. 17-1657.


[20]Id. at *6. 



[23]Id. See also The Fashion Law,The Supreme Court’s Decision in Mission Product Holdings is Significant for the Bankruptcy-Prone Fashion Industry, May 20, 2019, This article recognizes that the retail industry is no stranger to bankruptcy proceedings – and that it can affect brands who file for bankruptcy and attempt to end licensing agreements to use their brands. 

[24]Manhattan Community Access Corp. v. Halleck, No. 17-1702 (U.S. Jun. 17, 2019).

[25]U.S. Const. amend. I.

[26]See, e.g., Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978).

[27]Halleck, No. 17-1702at *5. 

[28]Id. at *2. 

[29]Id. at 6.


“Costanza Defense” Potentially No Longer Applicable in Class Action Securities Claims

Author: Collin L. Ryan, Associate Member, University of Cincinnati Law Review

George Costanza once imparted to Jerry Seinfeld the infamous advice, “It’s not a lie, if you believe it.”[1] Although this advice is entertaining, the Supreme Court granted certiorari last March to resolve a circuit split regarding the extent to which Mr. Costanza’s advice applies in class action securities litigation.[2] The Supreme Court will review the Sixth Circuit’s decision in Indiana State District Council v. Omnicare, Inc. from May 23, 2013.[3] The Court will likely determine the pleading standard for plaintiff-investors filing suit under § 11 of the Securities Act of 1933 (§ 11 or section 11) against a defendant-corporation. In particular, the Court will determine whether the plaintiff’s plea that the defendant’s misstatement or omission was objectively false satisfies federal pleading requirements, or whether the plaintiff must also plead that the defendant subjectively knew that the misstatement or omission was misrepresentative.[4]

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Alice Kills: Is Alice v. CLS the Destruction of Software and Business Method Patents as We Know Them?

Author: Ashley Clever, Contributing Member, University of Cincinnati Law Review

This is a question many practicing patent attorneys are wondering in the wake of the recent U.S. Supreme Court decision in Alice Corporation PTY. LTD. v. CLS Bank International on June 19, 2014.[1] In Alice v. CLS, the Supreme Court invalidated four patents owned by Alice Corporation relating to a system for mitigating settlement risk by using a third-party intermediary computer system to exchange financial obligations, ensuring the parties in the settlement agreement completed the transaction.[2] The Court held that the patents claimed an abstract idea that was not sufficiently transformed in order to render the subject matter eligible for patent protection.[3]

While the Supreme Court does not typically grant certiorari on many patent law cases, in recent years there have been numerous questions on what inventions are entitled to receive patent protection, particularly regarding what is patentable subject matter under 35 U.S.C. § 101.[4]

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Conflict of Laws and Property Rights in the Age of “Semi-Legal” Same-Sex Marriages

Author: Ryan Goellner, Associate Member, University of Cincinnati Law Review

In the United States federalist system, fifty different states often arrive at fifty different conclusions of law that can conflict not only with each other but also with federal law. The Supremacy Clause usually allows for the resolution of the latter conflicts, whereas conflicts among the laws of different states are less easily resolved.  That is epitomized in the split between states that recognize same-sex marriages and those that do not. Although many have celebrated the recent abrogation of the Defense of Marriage Act (DOMA) in United States v. Windsor, the decision does not foreclose further conflicts over the treatment of same-sex marriages, whether between the federal government and the states, or among the states themselves.[1] These conflicts are particularly complex in the context of property rights in same-sex marriages. In light of conflict of law jurisprudence, there is pronounced confusion about how states that do not recognize same-sex marriages may treat those couples in cases of death and the disposition of property.

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The New Batson Challenge: Extending the Protections of Batson v. Kentucky to Gays and Lesbians

Author: Ryan Goellner, Associate Member, University of Cincinnati Law Review

A contract dispute between two manufacturers of an AIDS drug has presented the opportunity for federal courts to protect gays and lesbians from being struck from juries because of their sexual orientation. Last month a panel for the Ninth Circuit Court of Appeals heard oral arguments in a lawsuit by SmithKline Beecham Corporation against Abbott Laboratories[1] and will soon decide whether to expand the protections of the Supreme Court decision in Batson v. Kentucky[2] to include gay and lesbian venire persons. Extending Batson in this way would advance federal jurisprudence following the Supreme Court’s decision in United States v. Windsor,[3] and also would presage another crucial Supreme Court battle over constitutional protections for gays and lesbians in the United States.

The present controversy began when SmithKline sued Abbott, alleging violations of the Sherman Antitrust Act, deceptive trade practices, and monopolization over Abbott’s manufacture of an important antiretroviral drug, Norvir.[4] However, the most controversial issue in this case arose before the trial even began, when Abbott’s attorney used a peremptory challenge to strike a gay man from the jury pool after the man spoke about his partner.[5] Following a brief trial, the jury rendered a verdict for SmithKline for nearly $3.5 million. Abbott appealed from the judgment. In response, SmithKline instituted a cross-appeal against Abbott, requesting a new trial because the district court judge allowed Abbott’s attorney to strike the gay juror over SmithKline’s challenge to the strike under Batson.[6]

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Nassar’s Silver Lining

Author: Sandra F. Sperino, Professor of Law, University of Cincinnati College of Law

In late June of 2013, the Supreme Court decided University of Texas Southwestern Medical Center v. Nassar.[1]  The Court held that plaintiffs proceeding on a Title VII retaliation claim must establish their protected activity was the “but for” cause of an employment decision.  This holding means that plaintiffs must establish a lower “motivating factor” standard for discrimination claims and the higher “but for” standard for retaliation claims.  In this regard, Nassar complicates an already tangled legal landscape.

Nassar offers a silver lining for those seeking a less complex employment discrimination jurisprudence. Two sentences hidden within the opinion resolve a central problem in employment discrimination law.[2]  Nassar clarifies that the lower courts are mistaken when they divide Title VII claims into single-motive and mixed-motive claims.  This organizational dichotomy, which has plagued the courts for more then two decades, created a host of difficulties in discrimination law that affected pleading, summary judgment, and jury instructions.  Nassar represents a significant shift in how courts should perceive discrimination cases.

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