2012 in Review: The top legal stories, part 3

December 19, 2012

2012 in review(Editor’s note: Throughout December, we’ll be looking at the top 20 legal events of 2012, as chosen by the Westlaw Insider editorial staff.)

Previous entries:

Part 1
Part 2

MegaUpload shutdown

The day after the Internet protests against SOPA and PIPA on January 18, 2012, referenced in our first 2012 top 20 post, the Department of Justice released an indictment against MegaUpload, its owner, and several of its officials, and shut down the site itself.

MegaUpload jailMegaUpload was one of the largest file-sharing websites on the Internet, and it was often the bane of the intellectual property holders that were pushing so hard for SOPA and PIPA.

Coincidence?  We’ll likely never know for sure.

But what we do know is that, since the site was shut down by the feds, numerous other file-sharing services have voluntarily shut their doors to avoid a similar fate.

However, MegaUpload founder Kim Dotcom recently announced a new file-sharing service that will be launching in January of 2013 that will seek to avoid a similar fate as MegaUpload’s by not hosting any of its servers within the U.S. and shifting the control (and liability) over the stored files more directly to users.

Whether Dotcom’s new site will be a template for a new wave of similar file-sharing sites remains to be seen, but regardless, the shutdown of MegaUpload represents a major landmark in the history of the online intellectual property war.

National Federation of Independent Business v. Sebelius

Of course you knew that this one was going to make the list.

The case deciding the constitutionality of the Affordable Care Act (otherwise known as Obamacare) was the most highly anticipated of the Supreme Court’s 2011 term.

Leading up to the announcement of the ruling that upheld the centerpiece legislation of President Obama’s first term, it was all anyone could talk about; as such, you probably know all you would want to about it by now.

SCOTUSDespite the massive amounts of attention that NFIB v. Sebelius had received, the ruling doesn’t venture into any radical new legal territories, with relatively minor exception.

Among these is the ruling on the Medicaid expansion, which held as unconstitutional the government’s cutting all Medicaid funding to any state that refused to adopt the ACA’s Medicaid expansion (requiring states to cover applicants of any age whose income is under 125% of the federal poverty line).

What about NFIB’s new Commerce Clause limitations?  Since a majority of Justices failed to join in on an opinion holding that the individual mandate was not a proper exercise of Congress’ Commerce Clause powers, the ruling can’t be cited as precedent unless and until the Supreme Court affirms it in a subsequent ruling.

Thus, the impact of the opinion was far more political than legal in nature: in an era of unprecedented political divisiveness, the conservative-controlled Supreme Court surprised many (but not me) with the ruling.

Marijuana is legalized in Washington and Colorado

The 2012 elections were responsible for several of the entries on our top 20, and the legalization of recreational marijuana use in the states of Washington and Colorado are among them.

Both states passed their respective ballot initiatives (Colorado’s Amendment 64 and Washington’s Initiative 502) with over 55% of the popular vote, and earlier this month, both Washington and Colorado officially legalized recreational use of the drug – the first two states in history to do so.

Obviously, since marijuana is still considered an illegal drug under federal law, use of the drug hasn’t truly been legalized.  However, with President Obama publicly stating that federal authorities aren’t going to prioritize drug enforcement in either of those states, it appears that citizens of both states can “light up” without fear of prosecution.

This may be a popular move on Obama’s part, since a majority of American’s support legalization of marijuana nationwide.

However, federal enforcement actions could open up interesting legal possibilities, specifically, if such an action were appealed to the Supreme Court, it could provide the Court with an opportunity to overturn Gonzales v. Raich (which, given the Commerce Clause philosophies reflected in the NFIB opinion, doesn’t seem so remote a possibility).

Only time will tell how these state legalizations will impact the nation at large, but the ballot measures themselves still remain historically significant.

U.S. v. Jones

Jones was decided on January 23, 2012, and the landmark case resolved the question of whether the government’s attaching a Global Position System (GPS) tracking device to a person’s car and using it to monitor the vehicle’s movements constitutes a search under the Fourth Amendment.

Fortunately for citizens who value their privacy, the Court unanimously agreed that such government actions are a search for the purposes of the Fourth Amendment.

Police GPS TrackerWhat Jones didn’t resolve was the question of whether the trespass had to be physical.

As this post discusses in further detail, two camps of Justices disagree on this point, with Justice Scalia arguing that a physical trespass is always required, while Justice Alito’s bloc held that a trespass occurs whenever the government intrudes into an area in which one has a “reasonable expectation of privacy.”

This distinction may seem insignificant, but in an era of rapidly advancing surveillance technology, it can make all the difference in the world.

With the increase in use of surveillance technologies by law enforcement, Jones will likely see much development in the future.

U.S. v. Windsor

U.S. v. Windsor – a challenge to Section 3 of the Defense of Marriage Act – is currently before the Supreme Court.

And although, as discussed in last week’s post, this consideration by SCOTUS is quite significant, Windsor is important for its own reasons, specifically in regards to the Second Circuit ruling.

Supreme Court LGBTAs discussed in more detail in this post, the appeals court ruling is significant because it establishes – for the first time – that laws discriminating on the basis of sexual orientation are subject to intermediate scrutiny.

Should the Supreme Court uphold Windsor on these grounds, it would likely pave the way for challenges to same-sex marriage bans across the country – or, at the very least, challenges to DOMA’s Section 2 (which allows states to bypass the Full Faith and Credit Clause and refuse to recognize out-of-state same-sex marriages).

This issue is easily the most heavily watched of those currently before the Supreme Court, and we’ll be regularly covering it (you can keep abreast of our posts on the topic here).

Since the ruling was the friendliest to same-sex marriage right advocates among all of the cases that sought Supreme Court review, Windsor’s 2012 appellate court ruling may have laid the foundation for a similar 2013 Supreme Court ruling.