Shinzo Abe’s Biggest Failure Is His Greatest Legacy: Preservation of Japan’s Anti-Military Constitutional Provision

MICHAEL C. DORF

In response to the news that Japan’s Prime Minister Shinzo Abe resigned due to health reasons, Cornell law professor Michael C. Dorf comments on Abe’s efforts to amend Article 9 of Japan’s Constitution, which was imposed on the country by Supreme Allied Commander Douglas MacArthur after World War II. Dorf describes one bad reason and two good reasons that have been offered for a change in Article 9, but he argues that the case for retaining Article 9 is stronger.

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In Re: Plavix Marketing, Sales Practices and Products Liability Litigation

Docket: 18-2472

Opinion Date: September 1, 2020

Judge: Bibas

Areas of Law: Business Law, Civil Procedure

Two doctors and a former pharmaceutical sales representative formed a partnership, JKJ, to sue several pharmaceutical companies as a qui tam relator under the False Claims Act with respect to the marketing of the anti-clotting drug, Plavix. When one of them left the partnership and was replaced, that change amounted to forming a new partnership. The defendant’s moved to dismiss because the Act’s first-to-file bar stops a new “person” from “interven[ing] or bring[ing] a related action based on the [same] facts,” 31 U.S.C. 3730(b)(5). The Third Circuit vacated the dismissal, after noting responses by the Delaware Supreme Court to certified questions indicating that the two partnerships were distinct. The verb “intervene” means to inject oneself between two existing parties, as under Federal Rule of Civil Procedure 24. The new partnership did not do that but instead came in as the relator. The district court ruling was based mainly on a dictum from a Supreme Court case on a very different issue and never considered the issue here. The Act’s plain text bars only intervention or bringing a related suit.

Harvard v. Cesnalis

Docket: 20-1012

Opinion Date: September 1, 2020

Judge: Rendell

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Harvard gave Mazzetti (a stranger) a ride home because Mazzetti was afraid of her boyfriend (Sutton). Upon their arrival, Sutton made threats, tried to get Mazzetti out of the vehicle, and used racial slurs against Harvard, a Black male. Harvard called 911 and proceeded to leave with Mazzetti. Sutton jumped onto the hood of Harvard’s moving vehicle, making death threats. Harvard believed Sutton had a firearm and a knife. Harvard informed the 911 operator of the situation and drove onto the highway. The operator instructed Harvard to take a specific exit. At the police roadblock, Trooper Cesnalis did not respond to Harvard’s explanation, made no effort to locate the knife or the firearm, and asked Harvard to take a Breathalyzer test. Harvard agreed. After six tries, Harvard completed the test, which indicated that his blood alcohol content was below the legal limit. Cesnalis nonetheless inferred that Harvard was under the influence because he was sweaty, speaking rapidly, and not directly answering questions. Harvard was handcuffed and taken to the police station. Cesnalis was aware that Sutton had a criminal record but accepted Sutton’s explanation that Harvard had hit him with his vehicle. Sutton was not charged. Mazzetti corroborated Harvard’s statements. Despite negative results from additional testing, Cesnalis charged Harvard with DUI, recklessly endangering another person, reckless driving, simple assault, aggravated assault, and disorderly conduct, referring to Sutton as “the victim.” He omitted several exculpatory facts from the affidavit and referred to Harvard’s criminal history, although there was no evidence that Harvard had a criminal history. Harvard, exonerated, filed suit under 42 U.S.C. 1983. The Third Circuit reversed a grant of summary judgment for Cesnalis as to false arrest, false imprisonment, malicious prosecution, and Equal Protection but affirmed as to the remaining claims and as to another officer.

Porter v. Pennsylvania Department of Corrections

Docket: 18-3505

Opinion Date: September 1, 2020

Judge: Greenaway

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Porter was convicted of murder and sentenced to death in 1986. Since then, he has been incarcerated in solitary confinement on death row. In 2003, the district court granted, in part, Porter’s 28 U.S.C. 2254 petition, determining that his penalty phase verdict form was unconstitutional. The order vacated Porter’s death sentence. Appeals from the order were held in abeyance pending the Pennsylvania courts' ruling on another petition and remain in abeyance. Porter then claimed violations of his Eighth and Fourteenth Amendments rights by continuing to confine him on death row even though his death sentence had been vacated. Porter alleged that his solitary confinement has caused “irreversible damage” to his mental health. The district court held that Porter does not have a procedural due process interest in avoiding solitary confinement because Porter’s death sentence remains active; Porter has not offered evidence of actual injury or deliberate indifference so he cannot succeed on an Eighth Amendment claim; and Porter cannot make a substantive due process claim based on the same allegations at issue in his Eighth Amendment claim. The Third Circuit reversed in part. The existence of the stay does not extinguish procedural due process rights. While 33 years of solitary confinement may violate the Eighth Amendment, the claimed Eighth Amendment right has not been clearly established so representatives of the Pennsylvania Department of Corrections are entitled to qualified immunity.

Association of New Jersey Rifle & Pistol Clubs, Inc. v. Attorney General New Jersey

Docket: 19-3142

Opinion Date: September 1, 2020

Judge: Jordan

Areas of Law: Civil Rights, Constitutional Law

In 2018, New Jersey made it illegal to possess a magazine capable of holding more than 10 rounds of ammunition. N.J. Stat. 2C:39-1(y), 2C:39-3(j). Prior to that, it had been illegal in New Jersey to possess magazines capable of holding more than 15 rounds of ammunition. Owners of large-capacity magazines (LCMs) could modify their LCMs, render firearms with LCMs or the LCM itself inoperable, register firearms with LCMs that could not be modified; transfer the firearm or LCM to an individual or entity entitled to own or possess it; or surrender the firearm or LCM to law enforcement. The Third Circuit previously affirmed an order denying a preliminary injunction and directly addressed the merits of the constitutionality of the Act. The court held that the Act did not violate the Second, Fifth, or Fourteenth Amendments. On remand, the district court ruled on summary judgment that it was bound by that decision and upheld the constitutionality of the Act. The opponents of the law appealed again, arguing that the district court erred in treating the prior panel’s opinion as binding. The Third Circuit rejected that argument and affirmed.

Free Speech Coalition, Inc. v. Attorney General United States

Docket: 18-3188

Opinion Date: September 1, 2020

Judge: Michael A. Chagares

Areas of Law: Constitutional Law, Criminal Law

The statutes, 18 U.S.C. 2257 and 2257A, require producers of pornography to verify the age and identity of each person portrayed, to keep records of the age verification, and to label each depiction with the location where law enforcement may obtain those records. In 2009, the plaintiffs filed suit. Their First Amendment challenges have resulted in three prior Third Circuit opinions. In 2016, the court remanded for the evaluation of those claims under strict scrutiny. The Third Circuit affirmed the resulting order in part. The two association plaintiffs lack standing to bring as-applied First Amendment claims on behalf of their members. The age verification, recordkeeping, and labeling requirements violate the First Amendment as applied to plaintiffs who are at least 30 years old. The government conceded that the requirements need not apply when sexually explicit depictions show performers who are at least 30 years old because, at that age, an adult performer could not reasonably appear to be a child. For these plaintiffs, the requirements are not the least restrictive way to protect children. The requirements are not facially invalid under the First Amendment overbreadth doctrine; the plaintiffs failed to prove that those provisions improperly restrict a substantial amount of protected speech relative to their plainly legitimate sweep. A nationwide injunction was broader than necessary to provide full relief to those plaintiffs who prevailed on their as-applied claims.