case suggestions – Page 5 – Prof. Zachary Wolfe, Esq.

February & Early March Cases

February 13, 2020case suggestions

The next block of arguments will occur in the last week of February and first week of March—with a large number of very significant cases. It starts with an important case involving federal lands that has not received much attention, followed by other important cases including a really interesting one in the context of free speech related to illegal immigration and another questioning the whole “expedited removal” process, then the CFPB case, and finally ending on March 4 with one of the more high-profile cases of the term, involving access to abortion.

Monday, February 24

First is a case that has not received much public attention but represents an important contest over whether the Trump Administration can authorize commercial activity on federal land in apparent violation of enacted laws. The Federal Energy Regulatory Commission awarded a right-of-way to Atlantic Coast Pipeline LLC so it could construct a natural gas pipeline across the Appalachian Trail within the George Washington Forest, despite laws that specify that such rights-of-way may be granted on federal lands “except lands in the National Park System.” 30 U.S.C. § 185(b)(1). An environmental organization successfully sued to block this action, with the Fourth Circuit holding that the Appalachian Trail is a “unit” of the National Park System and therefore the Mineral Leasing Act “specifically excludes” the Trail “from the authority . . . to grant pipeline rights of way.” The Administration is arguing, among other things, that the Appalachian Trail is not “land” within the meaning of these laws, which one group of amici seized on: “Petitioners’ first response (USFS Br. 19; ACP Br. 18) to that straightforward reading of the relevant statutory texts is that the AT is not ‘land’ at all but is instead merely ‘a trail’ or ‘a footpath’ that metaphysically crosses land. That argument is too clever by half.” I recommend reviewing that brief from NRDC and other groups, which offers a useful overview of the arguments. [There are two cases, US Forest Service v. Cowpasture River Assn. and Atlantic Coast Pipeline, LLC v. Cowpasture River Assn., but they have been consolidated for a total of 1 hour of argument.]

The second case is a terrorism case that also has not received much attention, likely because it involves fairly technical issues of interpretation of the Foreign Sovereign Immunities Act. The suit is against Sudan and alleges that it sponsored Al-Qaeda and bears liability for deaths and injuries of US government employees and contractors in the 1998 embassy bombings in Kenya and Tanzania. Congress amended the FSIA in 2008 to allow for punitive damages in cases of state-sponsored terrorism; the question for the Court today is whether that amendment applies retroactively. Opati v. Republic of Sudan.

Tuesday, February 25

Today is an important First Amendment case in the context of illegal immigration. Federal law provides for imprisonment of anyone who “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.” 18 U.S.C. § 1324(a)(1)(A)(iv). Based on those words alone, the statute might be read to criminalize a wide range of political advocacy that would be Constitutionally protected, such as editorials describing immigration law as immoral and illegitimate bars on entry by people fleeing oppression. Although incitement and solicitation of illegal activity may be criminalized under longstanding First Amendment doctrines, “abstract advocacy” of illegal activity is free speech. The line is often difficult to describe and cases typically address the issue in theoretical terms. That’s the case in today’s US v. Sineneng-Smith. Evelyn Sineneng-Smith continued to file green card applications (and charge her clients) under a specific program even though that program had ended. She was convicted of both mail fraud (which is no longer being contested) and under this “encourage or induce” provision. Speech that is part of a criminal scheme is not protected, but in First Amendment cases, we often look to the language of the statute and courts will strike down the law if it is “overbroad” even if the specific defendant before them did something that the Constitution would allow the government to criminalize under a more carefully drafted statute. Prof. Eugene Volokh’s amicus brief offers a compelling examination of the importance of the questions in this case. There’s also an interesting NYT article about the case.

Wednesday, February 26

The only case today is a technical issue under the Prison Litigation Reform Act, involving how to count the number of “strikes” against a prisoner who has had prior lawsuits dismissed. It’s not one I would recommend to the casual observer. Lomax v. Ortiz-Marquez

Monday, March 2

Two important immigration cases today, both involving different aspects of the power of the courts over the immigration process. The first, Nasrallah v. Barr, involves a member of the Druze religion who had been granted asylum in 2006 on the basis of an incident in which Hezbollah fired weapons at him and forced him to jump off a cliff to escape. But in 2013 he was convicted of receiving stolen property, which triggered a removal process. An immigration judge deferred removal, finding that he likely would face persecution if returned to Lebanon, but the Board of Immigration Appeals found that he was not in fact in danger because the guns weren’t aimed at him and he “voluntarily jumped.” The 11th Circuit refused to examine that finding, holding that it lacked power to review factual findings by the BIA. The Supreme Court has granted cert. on “whether the courts of appeals possess jurisdiction to review factual findings underlying denials of withholding (and deferral) of removal relief.” See this interesting amicus brief from a group thirty-three former immigration judges and members of the BIA, which argues that “[i]n light of the immense resource constraints of immigration courts, which amici experienced firsthand, it is crucial to have Article III court review of the underlying basis for a grant or denial of a [Convention Against Torture] claim.”

The second case, DHS v. Thuraissigiam, reviews a 9th Circuit decision that called into question the entire “expedited removal” process, finding that it lacked the “meager procedural protections” that the Supreme Court had required even for enemy combatants in Guantanamo — and therefore the statute denying courts authority to hear habeas petitions was invalid under the Constitution’s “suspension clause.” The Circuit decision itself offers a useful overview of the law and the circumstances this immigrant faced; also see this ABA Journal article and the organization’s amicus brief.

Tuesday, March 3

The legitimacy of the Consumer Finance Protection Bureau is being challenged on the basis of separation-of-powers concerns in Seila Law v. CFPB. The Constitution vests the President with the authority and duty to “take care that the laws be faithfully executed,” and this has traditionally meant broad authority to remove the heads of administrative agencies. But Congress on occasion creates “independent agencies” (with varying levels of actual independence) that it wants insulated from the political process. That’s been challenged on occasion as inconsistent with the constitutional scheme, but the Court has upheld various restrictions Congress has put on Presidential power over those agencies. CFPB is at the end of the continuum, though: it is funded independently through the Federal Reserve system and has only one director who serves a 5-year term and cannot be removed except for “inefficiency, neglect of duty, or malfeasance in office.” The case raises the question of whether Congress may so restrict the President’s authority to remove an administrative officer, but the Court may not reach that issue. It could instead read the “for cause” clause so broadly as to negate any separation-of-powers concerns, or it could hold that the petitioner lacks standing to raise the issue (it’s a law firm that refused to comply with a subpoena when the CFBP was investigating its telemarketing practices for consumer debt-relief services, which is a bit removed from the Constitutional issues). Scotusblog offers a useful overview and a symposium with a range of views.
There’s a lot of politics surrounding this case. Elizabeth Warren had a very significant role in the creation of the CFPB. Trump’s Solicitor General has declined to defend the constitutionality of the CFPB, so the Court asked Paul Clement (the Solicitor General under George W. Bush) to step in (he’s defended the structure but urged the Court not to reach that issue). And Justice Kavanaugh dissented when the issue was raised in a similar case when he was still on the DC Circuit (PHH Corp. v CFPB was decided 7-3 in favor of CFPB by the full DC Circuit in 2018).

The second case is an important but fairly procedural securities law issue. “Disgorgement” is essentially an order to surrender the ill-gotten gains. A 2017 Supreme Court case (Kokesh v. SEC) held that disgorgement is a form of “penalty” that is subject to a statute of limitations, but it left open the question of whether disgorgement was available as an “equitable remedy” (the ancient common law power of courts to craft appropriate responses to findings of guilt) in SEC enforcement actions when the statute of limitation is not a bar. Liu v. SEC asks that question directly. There’s an interesting NYT article that provides and overview and some details of the enforcement action, and this amicus brief by securities law scholars should really help you to follow the arguments.

Wednesday, March 4

Abortion cases are some of the most contentious and heavily watched argument days, and that was before the most recent batch of state laws following the presidential election. The June Medical Services cases (one with Russo as the petitioner and the other with him as the respondent; earlier cases will list Gee, the prior Secretary of the Louisiana Department of Health) involve a Louisiana law that requires doctors who perform abortions to have admitting privileges in a hospital with 30 miles. If that sounds familiar, it’s because the Court struck down a very similar Texas law in 2016 in Whole Women’s Health v. Hellerstedt. There, the Court found an “undue burden” after looking at the obstacles the law created as balanced against the benefits of the law. It noted that the benefits were minimal: complications are very rare and most occur in the days following the procedure, after the woman had gone home. As to burden, in the Texas case the record showed that about half the state clinics had been forced to close. Louisiana is focused on the “burden” half of the equation, arguing that it won’t be as serious there because the state only has 3 clinics and 4 abortion doctors total, and one already has admitting privileges and the others should be able to satisfy the new requirement. Again Scotusblog offers a symposium collecting a range of views.
This case will draw a huge crowd. Lines to get into the courtroom will form the day before (with some probably arriving days before), but one former student got in (barely!) for the LGBT/Title VII case in January by joining the line in the early afternoon the day before. So obviously no guarantee, but I’d say that if you’re willing to spend 24 hours in line, you’ve got a chance. If you’re not, then it can be a great experience to go to take in the demonstrations outside the Court. Protests will start during commuter hours the morning of the arguments and continue until the arguing counsel leave the court and give interviews and speeches out front. During and immediately after arguments are typically when the crowds outside are biggest and most active. The two cases are consolidated for one hour of argument, but they are the only arguments scheduled for today so I would expect them to run a little long. With bar admissions and decision announcements starting at 10:00, I would expect arguing counsel to be leaving the Courthouse around 11:30.

Radio Interview & Twitter

January 29, 2020case suggestions, commentary

I surveyed some recent and upcoming Supreme Court cases for a segment on Law & Disorder with Heidi Boghosian and Michael Smith. My segment starts at 31:45.

At the end, they were kind enough to ask where people can follow my writing, and I felt quite outdated in giving a website. So I have now created a Twitter account. Follow @profzwolfe to know when there are new posts here (and, perhaps eventually and rarely, other content).

January cases

January 5, 2020case suggestions

The Court returns from the holidays for oral arguments on January 13. This month starts with “bridgegate,” takes up other important criminal law and other issues, and ends with a major church-state case.

[arguments on Jan 13 involve technical ERISA and preclusion issues and are not recommended for the casual observer]

Tuesday, January 14

Kelly v. US is a really interesting public corruption case, involving criminal prosecutions that followed “bridgegate” – the September 2013 decision to create a traffic nightmare on the George Washington Bridge to punish the Fort Lee mayor for refusing to back then-NJ Gov Chris Christie. After all the public scandal, prosecutors noted that public funds had been wasted in putting on a fake “traffic study” as cover for the true motives, as well as changing and then restoring the traffic pattern. Two people were ultimately convicted of felonies: they used deception to cause the Port Authority to expend resources, which meets the statutory offenses of fraud and wire fraud (because some of the scheme was conducted by email). The Third Circuit upheld those convictions. In seeking Supreme Court review, the defendants urge that reading the fraud statutes so broadly “would put every official action in the sights of the fraud laws, turning them into broad government ethics codes.” Scotusblog has a useful overview of the factual events and a symposium with a range of views.

The second case today, Romag Fasteners Inc. v. Fossil Inc., is not one I would ordinarily recommend to a casual observer but may be worth staying for after the first argument. It is a question of interpretation of the Lanham Act, involving trademark and copyright infringement. Some courts have read a “willfulness requirement” into the statute, requiring the infringer to turn over (“disgorge”) all profits only if the infringement was willful. Here, Fossil was found to have acted in “callous disregard” for Romag’s intellectual property, but not willfully. Most of the legal organizations are lining up against Fossil, arguing that willfulness is not required if the judge otherwise finds that the circumstances of the infringement support an award of profits. A useful summary of the sides is here.

Wednesday, January 15

The only case today asks whether the Age Discrimination in Employment Act requires but-for causation or only that age was a motivating factor, in the context of federal employees. ADEA requires (for employees aged 40 and over) that employment actions in the federal sector “shall be made free from any discrimination based on age.” For many employment discrimination laws, it is well established that a plaintiff need only prove that the discrimination was a motivating factor, not that the action would not have been taken “but for” the employee’s race, religion, etc. For example, after much litigation on this, in 1991 Congress amended Title VII to make explicit that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. §2000-e2(m). However, in 2008 the Supreme Court held in Gross v. FBL Financial Svcs that the ADEA provision involving private sector employees required but-for causation. But the provision involving private sector employees prohibits actions “because of such individual’s age,” and the plaintiffs here (federal employees) argue that the earlier-quoted language that applies to them, “free from any discrimination” is broader. See the Harvard CR-CL discussion for more detail about this case, Babb v. Wilkie.

[The Court observes Dr. King Day on the 20th]

Tuesday, January 21

Shuar v. US is an important consideration of the Armed Career Criminal Act. If a defendant is convicted of unlawful gun possession under federal law, ACCA requires the court to impose a mandatory minimum sentence of 15 years if the defendant had three prior convictions for a “violent felony” or “serious drug offense.” What constitutes a “violent felony” has been heavily litigated, and the Court has settled on a “categorical approach,” which considers only the nature of the crime rather than the individual’s specific conduct. So a conviction for burglary is a prior conviction for a violent felony, even if no force or violence was actually employed in that particular burglary. The Court has never squarely addressed whether this categorical approach applies to determining what is a “serious drug offense” as well. That’s the issue in this case, but with an unexpected wrinkle: if the court looks only to the statutory elements of the drug crimes for which Shuar was previously convicted (and not to his actual conduct), they would not be “serious” under the ACCA. This case has not received much public attention, but the NACDL amicus brief is quite readable and should help to provide a good grounding in the issues.

Today’s second case is not recommended for the casual observer. Although mandatory arbitration is a developing and important area of the law, GE Energy Power Conversion France SAS v. Outokumpu Stainless USA is a more technical issue: “Whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards permits a nonsignatory to an arbitration agreement to compel arbitration based on the doctrine of equitable estoppel.”

Wednesday, January 22

The separation of church and state is before the Court today in Espinoza v. Montana Dept of Revenue. It involves tax breaks for donations to scholarships supporting attendance at private schools, and whether those scholarships can be used at religious schools. The tax office initially prohibited using those scholarships at religious schools. In order to avoid either discriminating against or supporting religion, the Montana Supreme Court struck down the whole program; no taxpayer support of religious or non-religious private schools. Church-state issues have been before the Court repeatedly in recent years, but we still lack a clear and coherent framework for resolving just how much (as the state put it) “room for play in the joints” there is between the free exercise clause (that prohibits unduly discriminating against religion and religious schools) and the establishment clause (that prohibits excessive governmental support for religion). Scotusblog has a good symposium; start with Amy Howe’s overview and then look at some of the disparate arguments.

November 2019 – DACA & more

November 10, 2019case suggestions

[The Court does not hear arguments on Veterans Day.]

Tuesday, November 12

DACA

The morning starts with three cases (consolidated for 80 minutes of argument total: DHS v. Regents of the Univ. Calif., Trump v. NAACP, and McAleenan v. Vidal) involving DACA, Deferred Action for Childhood Arrivals. This is a famous controversy and much has been written about these cases (Scotusblog has a great symposium), but I will offer a quick background and a suggestion about issues and lines of argument to look for.

DACA began in 2012 under President Obama. Non-citizens who had come to the US under the age of 16 and could meet certain standards (good criminal history, in school or graduated or a veteran) could apply for DACA status and, if approved, receive a letter declaring that the government would not seek to deport them despite their undocumented status. This is a form of “prosecutorial discretion” — a well-recognized legal term for the obvious reality that the government lacks resources to enforce all laws 100% of the time, and so the executive has discretion to decide what to prioritize when enforcing the law.

In 2017, under the Trump Administration, DACA was criticized by then-AG Sessions and ultimately rescinded. Importantly, the documented reasons for rescinding the policy was that it had been challenged in court and the AG had written that DACA “was an unconstitutional exercise of authority by the Executive Branch.”

That is important because government agencies must have a valid reason for taking action (which includes rescinding a prior action), and so actions based on an improper legal conclusion are almost always invalid under the Administrative Procedures Act. Although controversial, the best legal analysis is that DACA was constitutional — as above, the executive has to set priorities in deciding how to enforce laws with limited resources, and this was just a decision not to focus on child arrivals. The Trump administration could have said they have different priorities and so are rescinding DACA for that reason. But it didn’t; it said the reason was its conclusion that DACA was unconstitutional, which is not a valid legal conclusion. All three courts in these cases found that the asserted unconstitutionality of DACA was not defensible, and that therefore the decision to rescind DACA was not based on any valid reasoning.

In this context, it is worth remembering last term’s decision on the proposed addition of a “citizenship question” in the census, Dept of Commerce v. New York. Chief Justice Roberts was the 5th vote against the Trump Administration. He noted that the government would have been entitled to add a citizenship question for any of a number of reasons, including simply to appease a certain political constituency. But there, the Secretary instead claimed he was adding the question in order to help the Department of Justice better enforce the Voting Rights Act; a great deal of evidence showed that this explanation was “contrived.” And so Chief Justice Roberts joined the progressive justices in striking down that action. The final lines of his opinion are worth remembering before arguments in this case: “We do not hold that the agency decision here was substantively invalid. But agencies must pursue their goals reasonably. Reasoned decisionmaking under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction.”

Cross-border shooting / Bivens

The second argument today involves a cross-border shooting and the scope of Bivens actions. Briefly, a Border Patrol officer standing on US soil fired his weapon toward a group of people on Mexican land, hitting a teenager in the face and killing him. Ordinarily, plaintiffs need a Congressional statute that authorizes their lawsuit, and there is no federal statute that the boy’s family could use to seek redress. But the 1971 case of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics stands for the proposition that the Constitution itself provides a basis for bringing suit for violations of constitutional rights. The case today does not address whether this shooting was unconstitutional (the prohibition on deprivation of life without due process is a constitutional right that has been held to apply to non-citizens generally, although the cross-border nature obviously complicates things); the merits would have to wait for another day. The Court today will consider only whether Bivens actions at least potentially apply to this situation. For more, please see the thorough preview on Scotusblog.

Wednesday, November 13

The first case today involves the 1866 Civil Rights Act (not a typo; the Reconstruction-era law). The law (now codified at 42 U.S.C. § 1981) requires that all citizens have the same right to “make and enforce contacts . . . as is enjoyed by white citizens.” In Comcast v. National Association of African American-Owned Media, an association claims that Comcast refused to carry their channels because of racial animus. Comcast denies any such motive, but the trial court never reached that question and instead dismissed the case because it read the complaint as alleging mixed motives (that Comcast had legitimate reasons as well as illegitimate motives). The trial court held that § 1981 actions require but-for causation (the action would not have occurred but for the plaintiff’s race). In contrast, Title VII of the 1964 Civil Rights Act has been amended to clarify that employment discrimination is unlawful if race was a “motivating factor” (not necessarily the sole factor) in the decision to take that employment action. But since this is not an employment case, the question is whether a § 1981 case requires the plaintiff to show that race was the reason, rather than a reason. See the full description of the arguments on both sides at Scotusblog.

[The second case today is not one that would recommend to a casual observer. It involves procedural questions in bankruptcy cases.]

October 2019

August 9, 2019case suggestions

“First Monday” this year is October 7, when the Court returns from summer recess to hear the first set of arguments this term. The Court typically hears arguments on Mondays, Tuesdays, and Wednesdays for two weeks in a row each calendar month. Further information amount attending arguments are on this page. This term, the Court will quickly take on some high-profile cases, involving Title VII coverage of sexual orientation and gender identity discrimination, a defendant’s right to a unanimous verdict, life without parole for one of the DC-area snipers, and other issues. Those cases are discussed below.

Looking ahead, I will offer a post before the November arguments, which will include cases involving DACA and other immigration issues, the Clean Water Act, and police accountability. Looking even further ahead, the Court has agreed to hear, but has not yet scheduled arguments in, cases involving environmental law, the Second Amendment, the death penalty, religious establishment, mismanagement of employee retirement funds, and other issues. I will offer recommendations regarding those cases in the weeks before they are argued. This term is going to include a lot of cases that will generate great public interest.

Monday, October 7

The term opens with a case involving legal insanity and the death penalty, Kahler v. Kansas. Legal insanity means different things in different states. Some states instruct the jury to consider whether the defendant was capable of understanding right from wrong and was morally responsible. But in Kansas, a jury can consider mental capacity only as indication that the defendant did not have the mens rea (essentially, the intent required under the law) — in the case of murder, an intent to kill. So in a classic example that the ABA notes in its brief, a father “who knowingly and intentionally killed his son under the psychotic delusion that he was the biblical Abraham, and his son the biblical Isaac” would not be legally insane under the Kansas standard. Predictably, this case has generated a large number of amicus briefs, and I strongly recommend reviewing at least one or two before the arguments to get a sense of some of the legal tests and positions that will be argued. I also recommend arriving very early — these sorts of cases always draw a large crowd, as does First Monday even without a case that’s so contentious.

The second case this morning will not generate nearly as much public interest. Peter v. NantKwest Inc. involves the fees that someone has to pay to appeal the denial of a patent. If you plan to stay for this argument (there will be a short break and many people will leave the courtroom after Kahler), read the overview here.

The Court will also hear an afternoon argument — an important one involving the right to a unanimous jury verdict. Ten jurors found Ramos guilty of second degree murder, but two jurors voted to acquit. At the time, that was good enough to convict him under Louisiana law (although that changed with a state constitutional amendment in 2018, requiring unanimous verdicts going forward; only Oregon still allows split juries). The current state of the law is confused, at least according to Ramos’s attorneys. The last time the Supreme Court directly decided this issue was in 1972, when it ruled that states could authorize convictions with less-than-unanimous juries. However, it was a plurality opinion — no single view of the constitutional issues commanded a majority of the justices. Moreover, since then, the Court has been more emphatic that there should be “no daylight” between state and federal standards when Bill of Rights principles are “incorporated” by the 14th Amendment as applying to the states; and the Court has held that the 6th Amendment requires unanimous verdicts in federal criminal trials. This “incorporation doctrine” will be important in the arguments. Also note the racism that underlies these provisions: at the founding, all states and the federal system required unanimous verdicts, but Louisiana changed that after Reconstruction allowed for black jurors and Oregon did so in 1934 amid public outrage over immigration. The primary brief covers these and the legal issues quite well, and there are a large number of briefs from advocacy organizations on his side; Louisiana is alone, but you can see all the briefs here.

Lines for afternoon arguments are hard to predict because they are relatively rare (although there’s another one next week). Many members of the public don’t know about afternoon arguments, although this one is significant enough that it could draw a crowd of interested lawyers and law students. Some people who arrive for the 10am arguments but don’t get in may also decide to be first in line for this 1pm argument.

Tuesday, October 8

The cases today involve employment discrimination on the basis of sexual orientation and gender identity — some of the most high-profile cases of the term. Although many states and cities have non-discrimination laws that specifically prohibit discrimination on the basis of sexual orientation or gender identity, many others do not and federal law does not include such phrases. However, Title VII of the Civil Rights Acts prohibits discrimination “because of . . . sex.” 42 U.S.C. § 2000e-2. Courts and others have disagreed about whether this language includes sexual orientation and gender discrimination. It’s unlikely Congress had this type of discrimination in mind when it wrote the law, and for some, that is enough to defeat such claims. For an example of the opposite conclusion, there’s a remarkable 7th Circuit case, Hively v. Ivy Tech., in which the majority found for a lesbian based on a logical analysis that her sex was the reason for the discrimination: a) the employer discriminated against her because she was in a relationship with a woman; b) if an otherwise identical employee were male and in a relationship with a woman, the employer would not have treated her this way; c) therefore, sex is the definitive variable and the discrimination was because of the employee’s sex. The majority reasoned that this analysis comports more with the judge’s role to apply the plain language of the law, not guess at what Congress had in mind when it chose that language. In a concurring opinion, Judge Posner (a much-celebrated jurist who has since retired) was more bold, declaring a refusal to be an “obedient servant[] of the 88th Congress” and instead saying he was engaged in “judicial interpretive updating” of the law.

But that’s not the case being heard today…. I just find the two opinions to represent fascinating reasoning and exchange, and a good starting point for understanding why this is an issue. For the cases today, listen to this ScotusTalk podcast and review the scotusblog overview, and see the many filings in the cases at the following links. Briefly, Altitude Express Inc. v. Zarda and Bostock v. Clayton County both involve sexual orientation discrimination. They will be argued together in the first hour. In the second hour, R.G. & G.R. Harris Funeral Homes Inc. v. EEOC will take on transgender discrimination.

People will begin lining up to hear these arguments some time on Monday, if not before. If you are not willing to spend the night on the sidewalk, consider going to the Court to hear and/or take part in the demonstrations. I would expect protests starting around 8am and they certainly will continue until after noon, when the arguments will end and arguing counsel will make their way to the sidewalk in front of the court to give speeches and interviews.

[No arguments are scheduled for Wednesday the 9th, and the Court is closed on Monday the 14th for Columbus Day.]

Tuesday, October 15

There are 5 cases today, all consolidated to be argued together. The cases involve the authority of members of the Financial Oversight and Management Board created by the 2016 Puerto Rico Oversight, Management, and Economic Stability Act. Congress gave the Board broad powers, in response to a “fiscal crisis” — and it also authorized the President to appoint Board members without them being confirmed by the Senate. That’s a problem because the “appointments clause” says all Officers of the United States shall be appointed “by and with the Advice and Consent of the Senate” and Congress only has the authority to authorize the President alone to appoint “inferior Officers.” U.S. Const. Art. II, § 2. The line can be a little murky–the Supreme Court has said Officers are those who exercise “significant authority”–but these Board members had authority to rescind or revise laws and exercise other powers that almost certainly are inconsistent with their being mere “inferior Officers.” So a hedge fund and a union representing government workers sued to reverse Board actions on the basis that the Board Members did not have any authority because they were not confirmed as required by the Constitution. The First Circuit agreed that their appointments were unconstitutional but declined to reverse their actions, on the basis of the “de facto officer doctrine” and a finding that there would be “negative consequences for the many, if not thousands, of innocent third parties who have relied on the Board’s actions until now.” The Supreme Court has granted cert. on the question “Whether the de facto officer doctrine allows for unconstitutionally appointed principal Officers of the United States to continue acting, leaving the party that challenges their appointment with an ongoing injury and without an appropriate relief.”

Wednesday, October 16

The first case today raises complex issues relating to preemption doctrine — but it does so in the context of undocumented immigration. Garcia was already under investigation by a financial crimes detective when he was pulled over for speeding and told the traffic officer he was rushing to his job. The routine check revealed the ongoing financial investigation, the officer and detective talked, and the next day the detective obtained Garcia’s I-9 form from the employer. That form used a Social Security Number issued to another person. Garcia was then charged under state laws against identity theft. This has obvious political implications. The legal issue is that the I-9 form is part of a federal system, and the federal law specifies that the form and information on it “may not be used for purposes other than for enforcement of this chapter and [certain specified federal laws].” 8 U.S.C. § 1324a(b)(5). The Kansas Supreme Court held that “Garcia’s conviction must be reversed because the State’s prosecution based on the Social Security number was expressly preempted.” The US Supreme Court has accepted cert. on “(1) Whether the Immigration Reform and Control Act expressly pre-empts the states from using any information entered on or appended to a federal Form I-9, including common information such as name, date of birth, and social security number, in a prosecution of any person (citizen or alien) when that same, commonly used information also appears in non-IRCA documents, such as state tax forms, leases, and credit applications; and (2) whether the Immigration Reform and Control Act impliedly preempts Kansas’ prosecution of respondents.”

The second case today, Rotkiske v. Klemm, asks when the statute of limitations begins to run under the Fair Debt Collection Practices Act. A debt collector filed suit against Rotkiske but could not serve him because he no longer lived at the address and so withdrew the suit, but then refiled and served someone at the same old address, which the collector should have known was outdated. Rotkiske had no idea, and had a default judgment entered against him. He did not learn of this until years later, when he tried to obtain a mortgage. The issue for the Court is whether the statute of limitations begins to run when the misconduct occurs or when the plaintiff discovers the misconduct. The Fourth and Ninth Circuits have found a “discovery rule” but the Third Circuit in this case disagreed, holding that “the Act says what it means and means what it says: the statute of limitations runs from “the date on which the violation occurs.”

There is also an afternoon (1pm) argument today, challenging the life without parole sentence for one of the “DC area snipers” who was 17 at the time of the murders. This is another case with a lot of publicity. Malvo was sentenced in Virginia in 2004 to a term of two life sentences without the possibility of parole. The sentences were pursuant to pleas, under pressure of being charged with capital offenses. A year later, the Supreme Court ruled that the death penalty was unconstitutional when the offense was committed by a minor. In 2010, Miller v. Alabama held that mandatory life without parole was unconstitutional when the offense was committed by a minor. And in 2016, the Court clarified, in Montgomery v. Louisiana, that these rulings were to be applied retroactively. Therefore in this case, the 4th Circuit held that Marvo had to be re-sentenced. He might still face life imprisonment, but the trial court was instructed “to determine (1) whether Malvo qualifies as one of the rare juvenile offenders who may, consistent with the Eighth Amendment, be sentenced to life without the possibility of parole because his ‘crimes reflect permanent incorrigibility’ or (2) whether those crimes instead ‘reflect the transient immaturity of youth,’ in which case he must receive a sentence short of life imprisonment without the possibility of parole.” The state, on the other hand, urges that these cases apply only to sentencing schemes that require life without parole, while Virginia’s law provided for judicial discretion. Take a look at the briefs in this case and be prepared for a large and emotional crowd.

Decision days

April 30, 2019case suggestions

The Court has heard the last oral argument until the next term opens on the first Monday in October. However, the Court will sit on most Mondays until the end of June in order to announce decisions and orders.

When there is a decision in a case argued earlier in the term, the author of the majority opinion will announce the ruling and take a few minutes to discuss the opinion. Sometimes, the author of a dissenting opinion will announce that opinion as well (and if it’s Justice Ginsburg, she might be wearing her “dissent jabot”!). These are interesting to observe and can feel quite meaningful if it’s a case you care about — definitely worth going to if you’re able.

Unfortunately, there’s no way to know when any given case will be decided. Earlier-argued cases tend to be decided earlier, but not necessarily, and even the parties do not know until the morning of the announcement. On the other hand, it’s usually fairly easy to get into the courtroom (compared with the long and early-forming lines on argument days), with the possible exception of the last announcement day if there is a major case still unresolved. The Court has not scheduled a decision day for the week of May 6, but expect announcements at 10am on May 13, 20, and 28 (a Tuesday; the 27th is Memorial Day) and June 3, 10, 17, and 24.

As of this post, we’re still awaiting a decision in:

one case argued back in October (Gundy, involving the Sex Offender Registration and Notification Act),
one from November (Virginia Uranium, Inc., a federal preemption issue),
three from December, including Apple Inc. v. Pepper (antitrust liability), Carpenter v. Murphy (related to tribal sovereignty) and
- Gamble, which could be a very significant case, questioning the “separate sovereigns” exception to the double jeopardy clause
and 34 others from Jan-April 2019, including
- American Legion v. American Humanist Association, a significant religious establishment case (argued in February),
- Rucho v. Common Cause and Lamone v. Benisek, important cases involving partisan gerrymandering (agued March 26),
- Department of Commerce v. New York, the “citizenship question” on the Census (argued quite late in the term, on April 23)

After the decisions are announce, the Court will go on summer recess. This blog will too, until I’ll start posting about October 2019 term cases about a month before First Monday.

April cases – final arguments of the year

April 7, 2019case suggestions

This month, the Court completes oral arguments on all cases scheduled for this term. I particularly recommend cases involving offensive trademarks, access to corporate information via FOIA, and the addition of a “citizenship question” to the Census.

Monday, April 15

The first case today reopens debates about offensive trademarks. In 2017, the Supreme Court held in Matel v. Tam that the clause in the 1946 Lanham Act prohibiting registration of marks that “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead,” 15 U. S. C. §1052(a), was unconstitutional. It is possible to engage in commerce and even sue to protect your brand without registering the mark with the Patent and Trademark Office, and this is commercial (rather than political) speech so a lesser standard arguably applies, but the Court held that under any possible standard, the government has no legitimate interest in suppressing speech merely because it is offensive.

The vote was 8-0 to strike down the clause, but there were two opinions joined by 4 Justices each, so there is some confusion about how far a majority is willing to go in undoing other aspects of the Lanham Act. Which is where this case, Iancu v. Brunetti, comes in. Monday’s argument involves a dispute involving the apparel company FUCT, which was denied registration based on a similar provision, pertaining to “immoral” or “scandalous” trademarks. It is a potentially closer case because obscene material gets less First Amendment scrutiny. There is useful background here and an argumentative recitation of parties’ positions here.

Today’s second case is not one I would ordinarily recommend to a casual observer, but may be worth staying for. Emulex Corp. v. Varjabedian involves interpretation of the various clauses in the Securities and Exchange Act’s § 14(e): “[i]t shall be unlawful for any person to make any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading, or to engage in any fraudulent, deceptive, or manipulative acts or practices, in connection with any tender offer.” 15 U.S.C. § 78n(e). Most Circuits have held that the final clause’s explicit mention of fraud should be imported to require that the misconduct described in the earlier clauses also are actionable only if there was deliberate deception, but the 9th Circuit in his case held that negligence was sufficient.

[Cases on Tuesday and Wednesday are not one’s I would recommend for most observers.]

Monday, April 22

The Freedom of Information Act’s “exemption 4” provides that government agencies should not release “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” Circuits have come to different conclusions about what is required for information to be deemed “confidential.” The court has suggested it may resolves those splits in Food Marketing Institute v. Argus Leader Media. A useful overview of the case is here, but I also recommend at least glancing at a couple of amicus briefs from each side — the case has, predictably, drawn considerable interests from watchdog groups and trade associations.

Today’s second argument is a technical procedural question but an important one: “Whether Title VII’s administrative-exhaustion requirement is a jurisdictional prerequisite to suit, as three circuits have held, or a waivable claim-processing rule, as eight circuits have held.” Fort Bend County, Texas v. Davis.

Tuesday, April 23

The addition of a “citizenship question” to the Census is before the Court today. Department of Commerce v. New York is one of the more contentious cases this term; I won’t say much about it here since it has received so much publicity. The Court first accepted 2 issues:

(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq;
(2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker — including by compelling the testimony of high-ranking executive branch officials — without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis;

But in March it added another question:

The parties are directed to brief and argue the following additional question: Whether the Secretary of Commerce’s decision to add a citizenship question to the Decennial Census violated the Enumeration Clause of the U.S. Constitution, art. I, §2, cl. 3.

The case has generated an extraordinary number of amicus briefs. Scotusblog offers a useful symposium with a range of views.

There is also an afternoon (1pm) case today that involves an important issue: Whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement. Mitchell v. Wisconsin.

February cases

February 14, 2019case suggestions

Tuesday, February 19

The only case scheduled for argument today is relatively technical but may be of interest to students of statutory construction or those interested in the patent law or the status of the Post Office. The Leahy-Smith America Invents Act (AIA) created a Patent Trial and Appeal Board with authority to review patents that were awarded by the Patent and Trademark Office if a “person” challenges the validity of the patent. Return Mail v. USPS asks whether the Postal Service is a “person” in this context. Royal Mail had its patent invalidated by a post-grant review initiated by the Post Office, and now asserts that the Board should never have conducted the review because the AIA did not define “person” to include government agencies and because the Dictionary Act, which provides definitions for laws that lack specific definitions, defines “person” to not include government agencies. However, the AIA also uses “person” in other contexts in which Congress clearly meant to include government agencies. So the case will offer an academically interesting battle of cannons of statutory construction, and will have implications for who can serve as a watchdog for invalid patents. (On the later point, the Electronic Frontier Foundation has an interesting amicus brief in support of the Post Office.)

(Since this is the only case today, it’s possible the argument will run a little longer than an hour, but I wouldn’t expect it to go more than a few minutes over. The Court had been scheduled to hear the dispute regarding discovery to uncover the true motive for adding a citizenship question to the next Census, but that was put on hold and may well be removed from the docket.)

Wednesday, February 20

The only case scheduled for today involves technology licenses that a debtor has rejected in a bankruptcy proceeding. Debtors are permitted to “reject” contracts in bankruptcy proceedings, but this has very different implications if it is a simple sales contract (in which case the debtor is liable for contract damages, ie any added expense the other party incurs as a result of having to find a different partner) or something like a contract that gives rights to use, or even exclusive rights to use, a piece of technology or trademark. It is a very technical area of the law and I would not recommend this case for a casual observer. But if interested, there’s a useful article about it on Scotusblog.

Monday, February 25

A really interesting case about the “state actor” test in the context of First Amendment rights and (a bit more obscurely!) public access television. The Constitution generally cannot be violated by private individuals or companies because it regulates only what the government may or may not do — but there are two significant qualifiers on that general rule. First, if the government creates and retains control over a private company, then the constitution applies. In Manhattan Community Access Corp. v. Halleck, the City created a private company that controls access to the public access cable channels but appoints only two of the thirteen board members. Second, the constitution might apply to private companies that perform a “traditional public function.” But that is a rather fraught doctrine (it’s been declared “in retreat” since the 1970s; and consider private prisons, for example, as one amicus brief in this case touches upon).

I think this should be a really interesting case to attend, but read this overview and get a sense of the arguments by reading at least a few of the filings. Notably, the Electronic Frontier Foundation filed an amicus brief in support of neither party, including a section “In Praise of Unmoderated Platforms” followed immediately by a section arguing that “Moderated Platforms Are Also Valuable.”

Tuesday, February 26

Both cases today involve interpretation of criminal law statutes. The first, US v. Haymond, involves sentencing based on facts that were not found beyond a reasonable doubt or by a jury. Haymond was convicted of possession of child pornography, served time, and then was released on probation subject to a requirement that he not commit another crime. He was then found to have been in possession of child pornography again, but this was determined by the judge alone and based on a “preponderance of the evidence” standard (more likely than not; not beyond a reasonable doubt). The court not only revoked his parole but sentenced him to an additional term of imprisonment. He argues this violates his rights to due process and trial by jury. There’s a useful discussion of these issues here.

The second case, Mont v. US, is a bit more technical, but certainly important. It involves how to count (or pause counting) the days that someone has to serve probation: “Whether a period of supervised release for one offense is tolled under 18 U.S.C. § 3624(e) during a period of pretrial confinement that upon conviction is credited toward a defendant’s term of imprisonment for another offense.”

Wednesday, February 27

This is an important day for people interested in religious liberty questions, and particularly the establishment clause. American Legion v. American Humanist Association and Maryland-National Capital Park and Planning Commission v. American Humanist Association involve cross-shaped memorials on public land.

Establishment clause doctrine has been criticized by all sides as unwieldy and unclear — we’re not even sure what the standards are, much less how to apply those standards in a given case. Some precedent says the primary concern is to avoid “excessive entanglement” of church and state, but it’s not always clear what is or isn’t excessive, and anyway, there are other cases that suggest we should be focused on different concerns. Two of the “questions presented” for today highlight this pretty clearly: “whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.”

Scotusblog has a helpful “In Plain English” article as well as some great posts from a variety of perspectives in an online symposium.

I would get there very early for this argument. Alternatively, forget about getting into the courtroom and just plan to take in the dueling demonstrations and press conferences that I’m sure will be taking place on the sidewalk in front of the Court. These usually start around 8am for drive-time radio coverage and keep going until a while after the lawyers exit the courthouse, which wil be around 11:30. The two cases are consolidated, with a total of 70 minutes scheduled for arguments (but they’re the only cases today so could run a few minutes over).

January cases

January 2, 2019case suggestions

Monday, January 7

The first case this week, Merck v. Albrecht, involves a failure-to-warn claim against a pharmaceutical company and its claim that federal labeling law prohibited it from offering such a warning. The issue of federal preemption, and specifically “impossibility preemption,” has been at the Court several times and can be rather complex, so it is worth reading this longer overview. Briefly, drug makers have to contend with state common-law negligence torts as well as FDA regulations — so there is an obligation to warn consumers about potential side effects but also a requirement to use only labeling that has been approved by the FDA. In a failure-to-warn case, the manufacturer can have the case dismissed it if can show “clear evidence” that it could not have provided the warning that the plaintiff claims should have been provided. Having a label approved without such a warning is not necessarily enough, if there is reason to believe the company should have sought FDA permission to amend the label. In this case, the company did seek an amendment and it was rejected, but the plaintiffs claim it was rejected because it was not specific enough and an appropriate warning would have been approved if sought.

The second case today involves the scope of the Fair Debt Collection Practices Act and specifically whether it applies to foreclosures:

The question presented in Obduskey v. McCarthy Holthus LLP is whether the definition of “debt collector” under the Fair Debt Collection Practices Act includes attorneys who effect nonjudicial foreclosures. This case is difficult, not because the statutory language is inherently ambiguous, but because words like “debt” and “foreclosure” have popular meanings that do not quite track their technical meanings. And their technical meanings are sufficiently recondite that it is not obvious that Congress intended to deploy them. More importantly, once one begins excavating the statutory text, it becomes clear that Obduskey is a federalism case masquerading as fiddly little puzzle about how to read the FDCPA.

Danielle D’Onfro, Argument preview: Is foreclosure debt collection?, SCOTUSblog.

Tuesday, January 8

Herrera v. Wyoming is yet another Native American treaty rights case. Before Wyoming became a state, the Laramie Treaty granted the Crow Tribe (Apsáalooke Nation) “the right to hunt on the unoccupied lands of the United States so long as game may be found thereon,” but Wyoming authorities charged a member of the tribe with violating state hunting laws when he killed elk in Bighorn National Forest, outside tribal lands. The Court granted cert. on “whether Wyoming’s admission to the Union or the establishment of the Bighorn National Forest abrogated the Crow Tribe of Indians’ 1868 federal treaty right to hunt on the ‘unoccupied lands of the United States,’ thereby permitting the present-day criminal conviction of a Crow member who engaged in subsistence hunting for his family.” See the argument preview here.

The second case today, Fourth Estate Public Benefit Corp. v. Wall-Street.com, involves technical issues of filings at the Copyright Office and is not recommended for the casual observer. (There will be a short break after the first argument, when many people will leave.)

Wednesday, January 9

The only case today is Franchise Tax Board of California v. Hyatt — a case that began in 1991 and has been before the Court twice already. After moving to Nevada from California and receiving a $10 million tax bill, Gilbert Hyatt sued California in the Nevada courts, claiming abusive practices during the audit (including “that audit agents had sifted through Hyatt’s personal mail and garbage and had examined his personal activities at his place of worship”). The dispute raises a variety of state sovereign immunity and full faith and credit issues. It’s worth reading the full saga.

[The cases on Monday, January 14 are not ones I would recommend for the casual observer.]

Tuesday, January 15

The first case today is not one I would recommend, but you will need to attend it if interested in the second argument. Home Depot U.S.A. Inc. v. Jackson involves technical procedural issues in class action cases.

Azar v. Allina Health Services is something of a sleeper case, probably because the direct issue is the medicare reimbursement formula for hospitals. However, it involves administrative agency authority more generally, and specifically the effect of “guidance” documents issued without full notice and comment rule making. It could have very far-reaching implications. Notably, Justice Kavanaugh has recused himself because he wrote the opinion at the Circuit level. See the background here.

Wednesday, January 16

Knick v. Township of Scott, Pennsylvania was already before the Court last October, but has been set for reargument after the Court apparently became intrigued by a line of argument developed in that exchange, although it’s also been suggested that the reargument was ordered to allow Justice Kavanaugh to participate and break a likely 4-4 tie. It is a takings clause case; see the general overview as well as the docket entries beginning Nov. 2.

Tennessee Wine & Spirits Retailers Association v. Blair is a dormant commerce clause case in the context of alcohol sales: “Whether the 21st Amendment empowers states, consistent with the dormant commerce clause, to regulate liquor sales by granting retail or wholesale licenses only to individuals or entities that have resided in-state for a specified time.”

Oct 29 – Nov 7

October 23, 2018case suggestions

Some important cases in the next block of arguments, including arbitration, death penalty, and class action settlements.

Monday, October 29

The court takes on arbitration agreements in both cases this morning. Pre-dispute arbitration agreements are contracts in which the parties agree that any dispute they may have (usually involving a specific subject matter, like an employment or business relationship) will go to arbitration rather than be resolved in court. Courts are therefore obligated to reject any lawsuit that should instead be arbitrated (by granting a “motion to compel arbitration”). The Federal Arbitration Act (FAA) requires all state courts to enforce these agreements — and in recent decades, the Supreme Court has steadily struck down various legal doctrines that state courts had been trying to deploy to limit arbitration agreements.

One unresolved issue is who decides whether the parties have signed a contract to arbitrate disputes of this kind. If the agreement is to arbitrate disputes “arising out of the employment relationship,” is that just about wages and benefits or does it include a fall in the workplace parking lot, or a fight at an after-work happy hour? Typically, if someone files a lawsuit then it is the judge’s job to determine if there’s an agreement that covers that suit. But parties also can agree to let the arbitrator decide “questions of arbitrability.” If there is such a clause, then arguably every lawsuit must first be reviewed by an arbitrator, who will decide whether the court can have that case or if the dispute falls within the scope of the arbitration agreement.

In this morning’s first case, Henry Schein Inc. v. Archer & White Sales Inc., there is (at least arguably) an agreement that the arbitrator will decide questions of arbitrability. But the arbitration agreement also clearly states that it does not cover “actions seeking injunctive relief.” One company filed suit, the other moved to compel arbitration (including of the question whether the arbitration agreement covers this dispute), and the court ruled that it wasn’t going to send the question to an arbitrator because the lawsuit sought injunctive relief, so the suggestion that the agreement covered this type of lawsuit was “wholly groundless.” This is a doctrine other courts have relied upon, but it’s not clear it’s allowed under the FAA, which strongly favors arbitration. So the Court has accepted cert. on “Whether the Federal Arbitration Act permits a court to decline to enforce an agreement delegating questions of arbitrability to an arbitrator if the court concludes the claim of arbitrability is ‘wholly groundless.’”

In the second case, Lamps Plus Inc. v. Varela, there’s agreement that the dispute goes to arbitration, but the disagreement is over whether the party can bring a class action claim to arbitration. (It’s also an interesting factual context: the employer fell for a phishing scam and revealed personal information about employees.) The arbitration agreement used common “boilerplate” language that did not specify class actions as either permitted or prohibited, so the court followed a typical “rule of construction” that ambiguities are resolved against the party that drafted the agreement, which in this case meant that class actions were allowed. Again, given the FAA’s pro-arbitration stance, the issue is whether state court doctrines can impose on the arbitration process in this way.

Tuesday, October 30

An interesting tax case (!) involves rights under the Yakama Treaty of 1855. Washington State taxes fuel that enters the state, and Cougar Den is a fuel wholesaler that brings fuel into Washington by truck. But Cougar Den is owned by the Yakama Indian Nation, and the Treaty gives them the right to “travel upon all public highways.” On that basis, the company refused to pay a $3.6 million tax bill. The closeness of the legal question is illustrated by the conflicting rulings in this case: at the first hearing, an Administrative Law Judge sided with the tribe; the Director of the tax office reversed that ruling and sided with the state; a state trial level court reversed the Director and ruled for the tribe; and then the State Supreme Court reversed the lower court order and ruled for the state. An interesting and thorough discussion of each side’s arguments are available here; also see the case page for Washington State Department of Licensing v. Cougar Den Inc. to review more of the briefs in this case.

The second case is a technical issue of appellate criminal procedure. One basis for an appeal is “ineffective assistance of counsel,” but the defendant must show “prejudice” — not only that the lawyer did something wrong, but that the lawyer’s error made a difference in the outcome. Some types of errors get a “presumption of prejudice.” One such type of error is failing to file an appeal (for whatever other basis). But in Garza v. Idaho, the lawyer didn’t file an appeal (even though the client asked him to) because the defendant had previously signed a plea agreement that waived his right to appeal. The Court will (hopefully) resolve a Circuit split over whether the presumption of prejudice applies where the defendant had waived appellate rights. It may seem like an obscure technical issue, but issues like the validity of the waiver could be raised more easily if the presumption of prejudice applies.

Wednesday, October 31

Frank v. Gaos is a fascinating case, with unusual alliances, challenging cy pres awards in class action settlements. Lawsuits against Google for disclosing search histories to third parties without consent ultimately settled for $8.3 million, most of which would be paid to several nonprofits according to a “cy pres award.” This is a method (short for the French “cy près comme possible,” or “as near as possible,” and pronounced by most US lawyers like sigh-prey) that can be employed when it is impossible or impractical to distribute funds (or other property) to individuals who were wronged. In this case, the parties agreed that it would be impractical to determine what share would be appropriate to apportion to each Google user who had varying levels of personal information disclosed, so the funds went to organizations involved in internet privacy. The lead objector is from the Competitive Enterprise Institute, but those complaints are supported by groups ideologically aligned with them as well as by the Electronic Privacy Information Center and others from elsewhere on the political spectrum. For a view on the other side, see the brief from Public Citizen and a group of law professors. The Court has accepted cert. on “Whether, or in what circumstances, a cy pres award of class action proceeds that provides no direct relief to class members supports class certification and comports with the requirement that a settlement binding class members must be ‘fair, reasonable, and adequate.'”

The second case today, Jam v. International Finance Corp., is not one I would recommend to the casual observer, but stay for it if you are interested and can read up on it in advance. “Whether the International Organizations Immunities Act—which affords international organizations the ‘same immunity’ from suit that foreign governments have, 22 U.S.C. § 288a(b)—confers the same immunity on such organizations as foreign governments have under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-11.”

Monday, November 5

(Both cases today will be hard to follow for a casual observer. Sturgeon v. Frost involves NPS authority over private and native land holdings in Alaska. Virginia Uranium, Inc. v. Warren is a pre-emption issue regarding state regulations that impact nuclear material.)

Tuesday, November 6

A significant case involving the death penalty is up first today. This is the second of two major capital punishment cases this term (the first, Madison v. Alabama, was argued Oct 2 and noted in my prior post). See the interesting and detailed discussion of both from The Atlantic. Bucklew v. Precythe does not challenge the sentence or even lethal injection as a general matter, but argues that this individual has a specific medical condition that will cause him to experience unusually intense pain from the cocktail. The legal issues are:

(1) Whether a court evaluating an as-applied challenge to a state’s method of execution based on an inmate’s rare and severe medical condition should assume that medical personnel are competent to manage his condition and that procedure will go as intended; (2) whether evidence comparing a state’s method of execution with an alternative proposed by an inmate must be offered via a single witness, or whether a court at summary judgment must look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate; (3) whether the Eighth Amendment requires an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition; and (4) whether petitioner Russell Bucklew met his burden under Glossip v. Gross to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the state’s method of execution.

(The second case today again is not one I’d widely recommend. BNSF Railway Company v. Loos involves the Railroad Retirement Tax Act.)

(Wednesday, November 7, also involves two cases that I would not recommend. Culbertson v. Berryhill involves an unusual Social Security taxation issue. Republic of Sudan v. Harrison is about how you serve process on a foreign state.)