Petition of the day

By on Sep 17, 2014 at 10:10 pm

The petition of the day is:

13-1399

Issue: (1) Whether the Fourth Circuit erred in holding, in conflict with the Ninth Circuit, that the Shipping Act’s exemption from federal antitrust laws of any “agreement or activity relating to the foreign inland segment” of “through transportation” between the United States and a foreign country” does not apply where a collusive agreement relating to the “foreign inland segment” indirectly affects prices for overall “through transportation”; and (2) whether the Fourth Circuit erred in holding, in conflict with this Court’s jurisprudence and with decisions of other courts, that the False Claims Act, which provides that a person who submits to the government a false claim for payment is liable for treble damages plus “a civil penalty of not less than $5,000,” requires — and the Eighth Amendment’s Excessive Fines Clause condones — mechanical imposition of a separate civil penalty for each invoice submitted to the government (here, over 9,000), without regard to the defendant’s culpability, even where the invoices are “false” only by operation of law under United States ex rel. Marcus v. Hess.

This is the third installment of “Petitions to watch” featuring cases up for consideration at the Court’s September 29 “Long Conference.”  Because the Court has not considered new petitions since the end of June, the number of petitions slated for review at the September 29 Conference is quite large – more than at any other Conference of the year. Therefore, we are posting our list of petitions to watch at the “Long Conference” in three separate installments. This final installment includes petitions seeking review of issues such as state bans on same-sex marriage and the appealability of an order denying confirmation of a bankruptcy plan.  The first two installments are available here and here.

This edition of “Petitions to watch” features petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues.  Our policy is to include and disclose all cases in which Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, represents either a party or an amicus in the case, with the exception of the rare cases in which Goldstein & Russell represents the respondent(s) but does not appear on the briefs in the case.

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Wednesday round-up

By on Sep 17, 2014 at 8:27 am

Briefly:

  • In The New Yorker, Jeffrey Toobin discusses the “undue burden” standard for laws regulating abortion, which he characterizes as Justice Sandra Day O’Connor’s “most important triumph during her long and consequential tenure on the U.S. Supreme Court,” and whether that standard will survive if challenges to a Texas law requiring abortions to be performed in ambulatory surgical centers come to the Court.
  • In an op-ed for The National Law Journal (registration or subscription required), Ron Honberg urges the Court to grant the petition for certiorari filed by Texas death row inmate Scott Panetti and “announce a precise standard for assessing a prisoner’s competency for execution.”
  • Ben Winslow of Fox13 News in Salt Lake City reports that a federal judge has relied on the Court’s decision last June in Burwell v. Hobby Lobby Stores, holding that the application of the Affordable Care Act’s birth control mandate to closely held corporations with strong religious beliefs violates the Religious Freedom Restoration Act, to rule that “a member of the Fundamentalist LDS Church does not have to answer questions about child labor violations.”
  • Chantal Valery of Agence France-Presse (via Business Insider) reports on the recent announcement that the Court will review all seven pending same-sex marriage petitions at its September 29 Conference; she observes that, “[w]hether for or against gay marriage, concerned US parties seem to be forming a consensus on at least one point: it’s time for the Supreme Court to decide.”

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With the support of the Justice Department, two new cases on investment law are more likely to be reviewed by the Supreme Court:  one on the right of investors to sue for false stock registration statements, and one on the duty of employee benefit plan managers to get rid of questionable items in plan portfolios.  Asked by the Court for the government’s views, the Solicitor General urged the Court to rule on both.

The Court’s docket indicates that the Justices will consider whether to grant the petitions in Moores v. Hildes, the registration statement case, and Tibble v. Edison International, the benefit plan case, at their September 29 Conference.  The government’s brief in Moores is here, while its brief in Tibble is here.

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Petition of the day

By on Sep 16, 2014 at 10:05 pm

The petition of the day is:

14-86

Issue: Whether an employer can be liable under Title VII of the Civil Rights At of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.

Tuesday round-up

By on Sep 16, 2014 at 10:10 am

Briefly:

  • In The National Law Journal (registration or subscription required), Tony Mauro reports on the amicus briefs filed in Elonis v. United States, in which the Justices will consider whether a Pennsylvania man’s Facebook posts violated a federal law prohibiting the transmission of threats across state lines.  Mauro notes that, in the briefs, the Court “is getting an intense education in another genre: the rhythmic, slangy — sometimes violent — poetry of rap music.”
  • In The New York Times, Adam Liptak previews next month’s argument in Warger v. Shauers, in which the Court will consider whether federal evidentiary rules allow a litigant moving for a new trial based on juror dishonesty during voir dire to introduce juror testimony about statements made during deliberations that tend to show the alleged dishonesty.
  • At CitiesSpeak, Lisa Soronen compiles a list of eight petitions on the Court’s certiorari docket that either involve or could affect local governments.
  • At The Volokh Conspiracy, Eugene Kontorovich summarizes the amicus brief that he filed on behalf of law professors and a human rights group in Zivotofsky v. Kerry, in which the Court will consider the constitutionality of a federal statute that directs the Secretary of State, on request, to record the birthplace of an American citizen born in Jerusalem as “Israel” on a U.S. passport.
  • Justice Ruth Bader Ginsburg spoke last week at the George Washington University Law School; video of that speech is now available on Fora.tv.
  • In The Atlantic, Garrett Epps weighs in on Arizona State Legislature v. Arizona Independent Redistricting Commission, in which the Arizona legislature is challenging the constitutionality of a voter initiative that gives authority for drawing districts for the House of Representatives to a bipartisan commission. He argues that, with the Court having “refused to prevent gerrymanders,” “[t] o insist that the people of a state can’t do it either would be something else again.”

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Petition of the day

By on Sep 15, 2014 at 10:11 pm

The petition of the day is:

13-1348

Issue: Whether Miller v. Alabama – which held that a state may not sentence a teenage murderer to life imprisonment without parole unless the state provides a process whereby the sentencer considers the offender’s youth and attendant characteristics – should be applied retroactively to a murder conviction on collateral review.

Event announcements

By on Sep 15, 2014 at 10:42 am

On September 18, the Heritage Foundation will host a panel on recent developments in campaign finance litigation and campaign speech, featuring Floyd Abrams, Erin Murphy, Ronald Collins, and moderator Adam Liptak.  The event, which will also be streamed online, will be held at noon at 214 Massachusetts Ave. N.E. in the District of Columbia.  Registration information is available here.

On September 19, UC Hastings College of the Law will host a symposium on forum selection after last Term’s decision in Atlantic Marine Construction v. U.S. District Court.  The event will be held in the Louis B. Mayer Lounge from 1:00 p.m. to 5:30 p.m. More information about the panels and registration is available here.

On September 30, American University Washington College of Law will host its sixteenth annual preview of the upcoming Term.  The event will be held at noon at 4801 Massachusetts Ave. N.W. in the District of Columbia.  Speakers will include Ariane de Vogue of ABC News and WCL professors Amanda Frost, Steve Vladeck, and Steve Wermiel.  Registration details are available here.

From November 13-16, the Appellate Judges Education Institute and Council of Appellate Lawyers will co-sponsor a summit, hosted in Dallas, that will include panels reviewing last Term’s civil and criminal dockets, previewing this Term’s docket, and discussing circuit splits.  The event will also feature a keynote address by Justice Antonin Scalia and his co-author Bryan Garner.  The summit is open to all lawyers and judges. More information about the summit and registration is available here.

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Monday round-up

By on Sep 15, 2014 at 8:02 am

Briefly:

  • The Georgetown University Law Center’s Supreme Court Institute has published its preview of cases on the Court’s docket for the upcoming Term.
  • Chris Geidner of BuzzFeed reports on the execution last week of Earl Ringo, a Missouri death row inmate whose stay requests were denied by a divided Supreme Court.
  • At Mirror of Justice, Thomas Berg discusses the amicus brief that he and other lawyers filed on behalf of a coalition of anti-abortion groups in Young v. UPS, in which the Court will interpret the scope of the Pregnancy Discrimination Act.
  • At the Washington Legal Foundation’s Legal Pulse blog, Glen Lammi discusses a new cert. petition involving compelled speech; he urges the Court, if it grants review, to “clarify that government’s authority to mandate speech by commercial entities is greatest when the mandate corrects deceptive information, and that if the government’s interest isnot related to deception, courts should apply heightened First Amendment scrutiny.”

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A federal judge in Phoenix has taken an initial step toward allowing same-sex marriage in that state, indicating that he is likely to strike down the state’s ban when he rules on it soon.  Senior U.S. District Judge John W. Sedwick, overseeing two cases involving some fifteen gay and lesbian couples, ruled Friday on only one part of that case, but left little doubt where his overall review was heading.

In his fourteen-page order, he ruled that state officials must treat a gay couple as having been married when one of the partners died this summer.  Thus, the death certificate must show that they were married at that time, according to the decision.  In the course of that ruling, though, the judge offered a range of observations that seem sure to doom Arizona’s ban when he does confront that issue directly.

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