Petitions of the week

By on Nov 20, 2018 at 4:15 pm

This week we highlight petitions pending before the Supreme Court that address, among other things, the meaning of the phrase “law-abiding, responsible citizens” in District of Columbia v. Heller when determining whether a felon is entitled to lodge an as-applied challenge to the constitutionality of a felon disarmament law, whether a state law regulating pharmacy benefit managers’ drug-reimbursement rates is pre-empted by the Employee Retirement Income Security Act, the proper standard of review for a lower court’s determination that a required party is dispensable under Federal Rule of Civil Procedure 19, and the effect of the commerce clause on a state’s ability to protect consumer access to prescription drugs by regulating the pricing of those drugs.

The petitions of the week are:

18-528

Issue: Whether the U.S. Court of Appeals for the 11th Circuit erred when it applied an “abuse of discretion” standard of review to a district court’s determination that a required party is dispensable under Federal Rule of Civil Procedure 19, and, if so, which standard of review is applicable to a lower court’s determination that a required party is dispensable under Federal Rule of Civil Procedure 19.

18-540

Issue: Whether the U.S. Court of Appeals for the 8th Circuit erred in holding that Arkansas’ statute regulating pharmacy benefit managers’ drug-reimbursement rates, which is similar to laws enacted by a substantial majority of states, is pre-empted by the Employee Retirement Income Security Act of 1974, in contravention of the Supreme Court’s precedent that ERISA does not pre-empt rate regulation.

18-546

Issue: Whether the commerce clause prohibits a state from protecting consumer access to essential off-patent and generic prescription drugs by requiring manufacturers to refrain from unconscionably raising the price of those drugs sold in the state.

18-496
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel to the petitioner in this case. This listing occurs without regard to the likelihood that certiorari will be granted.

Issues: In determining whether a felon is entitled to lodge an as-applied challenge to the constitutionality of a felon disarmament law such as 18 U.S.C. §922(g)(1), (1) what does the phrase “law-abiding, responsible citizens” in District of Columbia v. Heller mean; and (2) what does it mean that “longstanding prohibitions on the possession of firearms by felons” are “presumptively lawful regulatory measures” under Heller.

Carpenter v. Murphy has the Supreme Court once again reviewing the troubled history of the nation’s treatment of Native Americans. The specific question is whether the reservation once afforded the Creek Nation in what is now eastern Oklahoma remains a reservation for purposes of the Major Crimes Act. If it remains a reservation, then the state of Oklahoma was powerless to try Patrick Murphy for a murder he committed on that land in 1999, because the Major Crimes Act requires federal prosecution of certain major crimes committed on Indian reservations. If the land is no longer a reservation, then Oklahoma retains the authority to prosecute crimes in that territory.

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In a series of decisions in the past decade, most recently 2017’s Hamer v. Neighborhood Housing Services of Chicago, the Supreme Court has distinguished jurisdictional rules from non-jurisdictional claim-processing rules. The distinction has been framed in consequential terms — a jurisdictional rule is mandatory and does not admit of equitable exception, suspending or extending the deadline based on concerns for fairness and justice. But the court has allowed that non-jurisdictional claim-processing rules could be mandatory if the rulemaker (whether Congress or the Supreme Court) so chooses, while reserving whether such rules could be subject to equitable exception.

That possibility is the focus of Nutraceutical Corp. v. Lambert, to be argued November 27.

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Tuesday round-up

By on Nov 20, 2018 at 6:48 am

Yesterday the justices issued additional orders from their conference last Friday; as expected, they did not add any cases to their merits docket. Amy Howe covers the order list for this blog, in a post that first appeared at Howe on the Court. At Bloomberg Law, Jordan Rubin reports that the court “chose not to hear a case on the Sixth Amendment’s confrontation clause …, turning away an appeal from Alabama but sparking a noteworthy dissent in the process” from “a pairing not seen yet this term, Justices Neil M. Gorsuch and Sonia Sotomayor.” Additional coverage comes from Marcia Coyle at Law.com. At Reason, Damon Root observes that “[w]hile it’s common nowadays to think of the Supreme Court exclusively in terms of its conservative and liberal blocs, Gorsuch and Sotomayor have shown that the story is more complicated when it comes to questions of criminal justice.”

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When the justices return from their Thanksgiving vacation next week, they will hear oral argument in a would-be class action filed against the technology giant Apple by iPhone users. The iPhone users argue that Apple is violating federal antitrust laws by requiring them to buy apps only from Apple’s App Store, at inflated prices. But Apple counters that under the Supreme Court’s cases the iPhone users don’t have a case at all, because Apple is simply selling the apps to iPhone users at the prices that the app developers set. The implications of the case could be significant not only for Apple, which could face millions of dollars’ worth of damages if the case is allowed to go forward and the company is found liable, but also for other companies that operate similar “electronic marketplaces.”

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The Roberts Court has shown two jurisprudential preferences. One is for protecting the freedom of speech, earning it a reputation as perhaps the most speech-protective Supreme Court in history. The other is for protecting law-enforcement discretion and power, especially against private suits for damages under 42 U.S.C. § 1983, earning criticisms from some who argue that the court over-protects police officers who violate the Constitution.

Those instincts collide in Nieves v. Bartlett, to be argued on November 26.

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The age of big data is upon us. Data in law is ubiquitous, informative of past decisions and helpful in prognosticating future results. How we make use of this data is often a topic of debate. One view holds that large amounts of processed information can inform legal decision-making (Here are examples of how this looks in practice.). Lawyers taking this approach try to maximize the use of this abundant information. A particular area of Supreme Court practice in which big data can improve lawyers’ decisions is in the case-selection stage. With well over 7,000 annual petitions for certiorari, the justices and their clerks must wade through what may seem like an infinite number of pages in order to pare down to the 70 or so cases they hear in a term.

There are several signals that lawyers can send the justices and clerks to enhance their chances of a cert grant. One factor that plays a large role and is beyond a lawyer’s control in any given instance is a lawyer’s experience before the Supreme Court. Expert Supreme Court counsel are much more successful in persuading the justices to hear their cases than lawyers with less experience. There are multiple explanations for these results, some of which have been better analyzed than others.

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Quiet day for orders

By on Nov 19, 2018 at 11:03 am

The Supreme Court issued more orders this morning from the justices’ private conference last Friday. The justices had added two new cases to their merits docket for the term last week and were not expected to grant any more today – and they did not. Instead, the overwhelming majority of today’s orders denied review of petitions asking the justices to weigh in. The justices once again did not act on several high-profile petitions, including a challenge to mandatory bar dues and a pair of cases involving whether individuals can bring a lawsuit to challenge the state’s disqualification of a Medicaid provider such as Planned Parenthood. But one criminal case on which they did act today, involving the Sixth Amendment right to confront the prosecution’s witnesses in a criminal trial, drew a dissent from the unlikely pairing of Justices Neil Gorsuch and Sonia Sotomayor.

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The First Mondays national tour continues! This week we’re live at Duke Law School, with not one but two great guest hosts: Professors Marin Levy and Steve Sachs. We catch up on recent SCOTUS news and talk through a recent set of opinions from the “shadow docket.” Then, as both of our guests are civil procedure experts, we take a deep dive into Nutraceutical Corp. v. Lambert, a nerdy-but-interesting procedural case that arises from some particularly spicy factual allegations. Listen to the end for a surprise during the audience Q&A, as perhaps our most distinguished questioner ever crashes the party.

Monday round-up

By on Nov 19, 2018 at 7:10 am

The Supreme Court added two cases to its docket on Friday, including In re Department of Commerce, et al., a dispute arising out of a challenge to the administration’s decision to include a question about citizenship on the 2020 census form; the court scheduled oral argument in the case for February 19, 2019. Amy Howe covers the order list for this blog, in a post that was first published at Howe on the Court. At Bloomberg, Greg Stohr reports that “[t]he justices will consider the Trump administration’s bid to limit the evidence that can be used in the challenge, which has been the subject of a trial in federal court in New York.” Hansi Lo Wang reports at NPR that “[t]he high court will weigh whether Commerce Secretary Wilbur Ross can be deposed and what other evidence can be considered.” Additional coverage comes from Lyle Denniston at Constitution Daily, Lawrence Hurley at Reuters, Richard Wolf for USA Today, Lydia Wheeler at The Hill, and Deanna Paul and Robert Barnes for The Washington Post.

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