Latest 2 Cases: Espinoza v. Montana Department of Revenue (Constitutional Law), Patent and Trademark Office v. Booking.com B.V. (Intellectual ...

Should Acquittals Require Unanimity?

SHERRY F. COLB

Cornell law professor Sherry F. Colb considers the policy question of whether, since the Constitution requires jury unanimity to convict a defendant of a serious crime, states should require a unanimous verdict to acquit a defendant, as well. Colb describes the reasons behind jury unanimity convictions and assesses whether they apply similarly to acquittals.

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Espinoza v. Montana Department of Revenue

Docket: 18-1195

Opinion Date: June 30, 2020

Judge: John G. Roberts, Jr.

Areas of Law: Constitutional Law, Government & Administrative Law

Montana grants tax credits to those who donate to organizations that award scholarships for private school tuition. To reconcile the program with the Montana Constitution, which bars government aid to any school “controlled in whole or in part by any church, sect, or denomination,” the Montana Department of Revenue promulgated “Rule 1,” which prohibited families from using the scholarships at religious schools. Parents sued, alleging that the Rule discriminated on the basis of religion. The Montana Supreme Court held that the program, unmodified by Rule 1, aided religious schools in violation of the Montana Constitution’s no-aid provision and that the violation required invalidating the entire program. The Supreme Court remanded. The application of the no-aid provision discriminated against religious schools and the families whose children attend or hope to attend them in violation of the Free Exercise Clause of the Federal Constitution. Disqualifying otherwise eligible recipients from a public benefit “solely because of their religious character” imposes “a penalty on the free exercise of religion that triggers the most exacting scrutiny. Montana’s no-aid provision does not zero in on any essentially religious course of instruction but bars aid to a religious school “simply because of what it is.” The protections of the Free Exercise Clause do not depend on a case-by-case analysis. To satisfy strict scrutiny, government action must advance interests of the highest order and must be narrowly tailored in pursuit of those interests. Montana’s interest in creating a greater separation of church and state than the U.S. Constitution requires cannot qualify as compelling. The Montana Supreme Court was obligated to disregard the no-aid provision and decide this case consistent with the Federal Constitution.

Patent and Trademark Office v. Booking.com B.V.

Docket: 19-46

Opinion Date: June 30, 2020

Judge: Ruth Bader Ginsburg

Areas of Law: Intellectual Property, Internet Law, Trademark

A generic name—the name of a class of products or services—is ineligible for federal trademark registration. Booking.com, a travel-reservation website, sought federal registration of marks including the term “Booking.com.” Concluding that “Booking.com” was a generic name for online hotel-reservation services, the U.S. Patent and Trademark Office (PTO) refused registration. The Fourth Circuit affirmed the District Court decision that “Booking.com”—unlike the term “booking” standing alone—is not generic. The Supreme Court affirmed. A term styled “generic.com” is a generic name for a class of goods or services only if the term has that meaning to consumers. Whether a compound term is generic turns on whether that term, taken as a whole, signifies to consumers a class of goods or services. Consumers do not perceive the term “Booking.com” that way. Only one entity can occupy a particular Internet domain name at a time, so a “generic.com” term could convey to consumers an association with a particular website. An unyielding legal rule disregarding consumer perception would be incompatible with a bedrock principle of the Lanham Act. The PTO’s policy concerns do not support a categorical rule against the registration of “generic.com” terms. Several doctrines ensure that registration of “Booking.com” would not yield its holder a monopoly on the term “booking.”