Hornsby & Hornsby, Attorneys at Law            (205) 856-1000

Experienced Counsel, a Personal Touch

Slam the Gavel Blog

Supreme Court Decision May Force Us All Into The Black Market

Posted by Matthew J. Hornsby on October 10, 2012 at 4:25 PM

          Hold your breath. After a flurry of landmark decisions in June of this year, the Supreme Court is back in session…and with plenty more landmark cases in store. By its very definition, the Supreme Court of the United States only hears “important” cases. It’s not likely that my dispute with my homeowners association over who should repair my mailbox light would ever be deemed worthy of the Supreme Court. However, many of the cases decided by the Supreme Court only impact a select few citizens, or maybe only those directly involved in the case. The unique thing about the June session was that so many of those decisions directly impacted all of us. The Court issued rulings on healthcare and illegal immigration, just to name a couple. The October session kicks off with a case on affirmative action (use of racial factors in determining college acceptance), and also is scheduled to address the federal Defense of Marriage Act, which, among other things, allows states to choose not to recognize a gay marriage from another state and federally defines marriage as between a man and a woman for purposes of federal benefits and rights. If the Defense of Marriage Act is overturned, states could be forced to adjust their treatment towards gay marriages.

          One important case that won’t get as much attention as some of the others but impacts our lives just as much is our right to resell an item to another person. We’ve all done it – maybe on eBay, half.com, Amazon, or the old fashioned yard sale. You don’t use that video game console anymore. You haven’t worn that shirt in years. Resell them and make a little money. A long-standing concept called the “first sale” principle has been recognized to allow citizens to resell this property as they see fit, once it has been purchased. After all, it is yours. The U.S. Circuit Court of Appeals ruled that for foreign made items (almost everything in your house, as it turns out), the “first sale” principle does not apply. So in order to resell the foreign-made item without violating laws, the owner must obtain permission from the manufacturer. Good luck getting Sony to grant you permission to sell that Playstation 3 on eBay. And I’m sure getting permission to sell those shirts made in Thailand at your yard sale for $3 will be a breeze.

          I can’t help but think that the Supreme Court will issue its ruling in a way to preserve our freedom to resell our own stuff, and thus prevent eBay and the like from going out of business. The last thing our country needs right now is a whole sector of the economy to be deemed “illegal.” As we’ve seen, regardless of the evidence presented and the letter of the law, our Supreme Court is more than happy to manipulate the law to achieve whatever result it wants, and I think they will do the same here.

Categories: None