Constitutional Problems With the Kentucky Proposal (Supported by Mitch McConnell) to Change the Way U.S. Senate Vacancies Are Filled

VIKRAM DAVID AMAR

In this second of a series of columns, Illinois Law dean and professor Vikram David Amar comments on the Kentucky proposal to change the way U.S. Senate vacancies are filled. Dean Amar argues that the Seventeenth Amendment precludes such a proposal, which would allow the state legislature to substantively constrain the governor’s choices in making a temporary appointment.

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The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith

Docket: 19-2420

Opinion Date: March 26, 2021

Judge: Gerard E. Lynch

Areas of Law: Copyright, Intellectual Property

The Second Circuit reversed the district court's grant of summary judgment to the Foundation on its complaint for a declaratory judgment of fair use and the district court's dismissal of defendant's counterclaim for copyright infringement. This case involves visual art works by Andy Warhol based on a 1981 photograph of the musical artist Prince that was taken by defendant, Lynn Goldsmith, in her studio, and in which she holds copyright. The court concluded that the district court erred in its assessment and application of the fair-use factors and that the works in question do not qualify as fair use as a matter of law. In this case, the court considered each of the four factors and found that each favors defendant. Furthermore, although the factors are not exclusive, the Foundation has not identified any additional relevant considerations unique to this case that the court should take into account. The court likewise concluded that the Prince Series works are substantially similar to the Goldsmith Photograph as a matter of law. Accordingly, the court remanded for further proceedings.

Ashley v. City of New York

Docket: 19-2726

Opinion Date: March 26, 2021

Judge: Guido Calabresi

Areas of Law: Criminal Law

Plaintiff filed suit under 42 U.S.C. 1983, alleging false arrest, malicious prosecution, and the denial of his right to a fair trial. On appeal, plaintiff challenged the district court's grant of summary judgment to Detective Civil on his false arrest and malicious prosecution claims, and the denial of plaintiff's motion for judgment as a matter of law, asserting errors in the jury instructions, both with respect to his fair trial claim. Although the district court erred by relying on a credibility determination, the Second Circuit affirmed the district court's grant of summary judgment to the detective on the claims for false arrest and malicious prosecution. In this case, the summary judgment record before the district court was sufficient to establish probable cause without relying on the detective's familiarity with plaintiff's possessions and hence on his credibility. Furthermore, the facts that support probable cause to arrest here were sufficient to "lead a reasonably prudent person to believe the plaintiff guilty," as required for probable cause to prosecute a claim. As to the fair trial claim, the court affirmed the denial of plaintiff's motion for judgment as a matter of law. However, the court vacated the judgment in favor of the detective and remanded for a new trial because the jury instructions contained prejudicial error.

United States v. Bryant

Docket: 20-1078

Opinion Date: March 26, 2021

Judge: Per Curiam

Areas of Law: Criminal Law

The Second Circuit held that defendant does not qualify for relief afforded by Section 401(a) of the First Step Act. Defendant was convicted in 2007 of conspiracy to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. 812, 841(a), 841(b)(1)(A), and 846 (Count One), among other offenses, and sentenced principally to a 300-month term of imprisonment. The district court reduced his term of imprisonment to 215 months in 2020. The court concluded that the plain text of Section 401(c) limits the retroactive effect of Section 401(a), making its relief available to defendants who committed offenses before the First Step Act became law but only if they have not yet had a sentence imposed as of the date of enactment. The court also concluded that Section 404(b) of the First Step Act does not require a district court to engage in "plenary resentencing" or "recalculate an eligible defendant's Guidelines range, except for those changes that flow from Sections 2 and 3 of the Fair Sentencing Act," United States v. Moore, 975 F.3d 84, 92 (2d Cir. 2020). In this case, because defendant's original sentence on Count One was imposed in 2007—long before the date of the enactment of the First Step Act—he is precluded by Section 401(c) from benefiting from Section 401(a)'s changes to the sentencing enhancement of Section 841(b)(1)(A), which are unrelated to Sections 2 and 3 of the Fair Sentencing Act. Accordingly, the court affirmed the district court's 2020 order.