Petition of the day

By on Jul 24, 2017 at 12:38 pm

The petition of the day is:


Issue: Whether Federal Rule of Civil Procedure 23 permits a district court to certify a damages class where there is no reliable, administratively feasible method of identifying the members of the class.

Founded in Jerusalem nearly a century ago, Jordan’s Arab Bank now has over 600 branches on five continents. The bank describes itself as “an active and leading partner in the socio-economic development” of the Middle East – a description borne out by its work with the U.S. Agency for International Development, Oxfam, Save the Children and Catholic Relief Services. The Israeli government uses the bank as a conduit to transfer taxes that it collects for the Palestinian Authority, and the United States government has characterized the bank as a “constructive partner” in its efforts to combat money laundering and the financing of terrorism. But on October 11, the Supreme Court will hear oral argument in a case brought by victims of terrorist attacks that occurred between 1995 and 2005 in Israel, the West Bank and Gaza. They allege that Arab Bank maintained accounts for known terrorists, accepted donations that it knew would be used to fund terrorism, and distributed millions of dollars to families of suicide bombers – known as “martyrdom” payments. The question before the justices isn’t whether the victims’ allegations are true, but instead whether the bank can be sued in U.S. courts at all.

The victims have brought their lawsuits in U.S. courts under the Alien Tort Statute, a federal law that gives federal courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Judge Henry Friendly once described the ATS, which was enacted as part of the Judiciary Act of 1789, as a “kind of a legal Lohengrin,” after the mythical German knight who arrives in a boat pulled by swans, because “no one seems to know whence it came.”

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Monday round-up

By on Jul 24, 2017 at 7:14 am


  • In The Wall Street Journal, Brent Kendall reports that a “reflective Justice Ruth Bader Ginsburg offered something of a lament Saturday night for the polarized state of national politics, speaking to a theater audience following a play about her late friend and ideological sparring partner, Justice Antonin Scalia.”
  • At the National Conference of State Legislatures blog, Lisa Soronen discusses “the notorious ‘cake case,’” Masterpiece Cakeshop v. Colorado Civil Rights Commission, noting that “[i]n the past three years, lower courts have decided a number of similar cases involving other wedding vendors who did not want to provide services for same-sex weddings (e.g., photographer, florist, venue owner, stationery seller),” and that “[n]one of the vendors has won thus far.”
  • At Empirical SCOTUS, Adam Feldman examines data that may indicate how the justices will vote on the merits in the upcoming entry-ban case.
  • At Reuters, Andrew Chung reports that at least nine “companies and individuals are looking to register racially charged words and symbols for their products, including the N-word and a swastika, based on a U.S. Supreme Court decision on trademarks last month.”

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Petitions of the day

By on Jul 21, 2017 at 11:38 am

The petitions of the day are:


Issue: Whether 18 U.S.C. § 3663A(b)(4) covers costs for reimbursement under the Mandatory Victims Restitution Act that were “neither required nor requested” by the government, including costs incurred for the victim’s own purposes and unprompted by any official government action.


Issues: (1) Whether an “informational injury” satisfies the article III standing requirement of real-world harm articulated in Spokeo v. Robins, where the plaintiff alleges at most a bare procedural violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681b; and (2) whether a bare procedural violation of a statute may be deemed “willful”—i.e. knowing and reckless—under Safeco Insurance Company of America v. Burr, where no risk of harm resulted from the alleged violation.

Friday round-up

By on Jul 21, 2017 at 7:06 am

In The Economist, Steven Mazie reports that the Supreme Court’s entry-ban ruling on Wednesday was “a win for family members in Iran, Sudan, Somalia, Libya, Syria and Yemen seeking visas to visit relatives in America,” but “a loss for resettlement organisations that have already expended time, resources and energy planning for 24,000 aspiring refugees seeking shelter in America,” and that the court’s “above-the-fray perspective is the handiwork of a six-justice majority apparently seeking to dampen perceptions of the court’s politicisation.” At Talk Media News, Gary Gately reports that, according to advocates for refugees, the ruling “will endanger the lives of thousands of desperate people fleeing war, hunger, poverty and persecution.” At the ImmigrationProf Blog, Peter Margulies observes that “the Court left the door open to revisit its order once the Ninth Circuit rules on the government’s appeal of Judge Watson’s injunction,” and hopes “that the Ninth Circuit will uphold the district court on exempting refugee assurances from the EO, and the Supreme Court will then permit Judge Watson’s entire order to go into effect.”

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Petitions of the day

By on Jul 20, 2017 at 11:42 am

The petitions of the day are:


Issue: Whether the Federal Arbitration Act pre-empts a state law that dictates onerous terms and conditions which must be included in private arbitration agreements between physicians and patients, and invalidates all agreements that do not contain those terms and conditions.


Issues: (1) Whether the Arizona Supreme Court erred in stretching the “overbreadth” test for facial unconstitutionality beyond the First Amendment context to strike down a bail restriction based on an application of the law not present in this case; and (2) whether the Arizona Supreme Court erred in applying heightened scrutiny—one standard among five used in the lower courts—to strike down a state regulatory measure that denies bail if a judge, after a full adversarial hearing, finds clear proof that the arrestee raped a child.

Thursday round-up

By on Jul 20, 2017 at 7:30 am

Yesterday the Supreme Court left in place a district judge’s ruling allowing entry into the United States by close relatives of people in the U.S., such as grandparents, but put a hold on the portion of the judge’s order that loosened the government’s restrictions on entry by refugees, pending disposition of the government’s appeal by the U.S. Court of Appeals for the 9th Circuit. Amy Howe covers the Supreme Court’s order for this blog. Additional coverage comes from Brent Kendall at The Wall Street Journal, Josh Gerstein at Politico, Adam Liptak in The New York Times, Richard Wolf at USA Today, Robert Barnes in The Washington Post, Greg Stohr at Bloomberg, Lyle Denniston at his eponymous blog, Lawrence Hurley at Reuters, Pete Williams at NBC News, Ariane de Vogue at CNN, and Gary Gately at Talk Media News. In The Economist, Steven Mazie observes that the “paper-and-ink volley” in the parties’ briefs was not “fought in polite, lawyerly terms.” At Take Care, Joshua Matz argues that “[t]he Supreme Court is now a co-owner and co-author of the travel ban,” and that “with that position comes major institutional risk to the Supreme Court’s public legitimacy.”

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Court releases October calendar

By on Jul 19, 2017 at 9:59 pm

The Supreme Court term that ended in late June may have lacked the high-profile cases found in many of the terms that preceded it, but the new term will have no shortage of blockbusters. Today the justices released the calendar for October’s oral arguments, which will include not only the dispute over President Donald Trump’s “travel ban” but also a major dispute over partisan gerrymandering, two immigration cases that have been scheduled for a second round of oral argument, and an important arbitration case in which the United States has switched sides and now supports the employers.

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On the same day that it scheduled oral argument in the dispute over President Donald Trump’s March 6 executive order, the Supreme Court turned down a request by the federal government to clarify exactly what it meant when it said that individuals with a close family relationship could continue to apply for visas to enter the United States even while the freeze on new visas for travelers from six predominantly Muslim countries is in place. Today’s order left in place a ruling by a federal district judge in Hawaii that had defined the relationships more expansively than the government had wanted – to include, among others, grandparents and grandchildren. But the justices also put a portion of that lower-court ruling relating to refugees on hold while an intermediate federal appeals court reviews it.

The president’s March 6 order, often known as the “travel ban,” halted the issuance of new visas for travelers from six predominantly Muslim countries – Iran, Libya, Sudan, Syria, Somalia and Yemen – and temporarily suspended the admission of refugees into the United States. Two different lower courts blocked the government from implementing the order, but on June 26 the Supreme Court allowed the government to go ahead and enforce it, with an exception for travelers and refugees who have a “credible claim” of a genuine relationship with an individual or institution in the United States.

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Petitions of the day

By on Jul 19, 2017 at 11:38 am

The petitions of the day are:


Issues: (1) Whether the U.S. Court of Appeals for the 7th Circuit’s en banc majority opinion substantially departed from the Supreme Court’s precedents established by Monell v. Department of Social Services by authorizing the imposition of corporate liability on a prison medical provider under 42 U.S.C. § 1983 and the Eighth Amendment without requiring any evidence of either culpability for deliberate indifference on the part of the provider, or any causal connection between the provider’s alleged failure to implement the policy and the deprivation of federal rights; and (2) whether the U.S. Court of the Appeals for the 7th Circuit’s en banc majority opinion and its reliance on cases from the U.S. Court of Appeals for the 9th and 3rd Circuits, which deviate from the requirements of all other federal appellate courts on the standard of municipal liability under 42 U.S.C. § 1983 and the Eighth Amendment, as established by Monell, justifies review by the Supreme Court to reconcile those authorities and clarify that standard.


Issue: Whether, under the “rule of reason,” the Government’s showing that American Express’s anti-steering provisions stifle price competition on the merchant side of the credit card platform suffices to prove anti-competitive effects and thereby shifts the burden of establishing any procompetitive benefits from the provisions to American Express.

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