Tuesday round-up

By on Aug 23, 2016 at 7:41 am

At Vox, Dylan Matthews contends that the “unfilled vacancy of Antonin Scalia’s seat combined with a Hillary Clinton victory in November could set the Court on a new course.”  At MinnPost, Paul Anderson – a retired state supreme court justice – argues that the “refusal of Senate Republicans to allow any hearing on the nomination of Chief Judge Merrick Garland to the U.S. Supreme Court is a reckless and dangerous act.”   In The Atlantic, Barry Friedman analyzes Scalia’s legacy on policy and concludes that “a new president could change the constitutional law of policing more dramatically than it has been in decades.”  Finally, at CNN, Joan Biskupic looks back at Justice Sandra Day O’Connor’s path to the Court thirty-five years ago and suggests that it “demonstrates how a long-odds nominee gets skillfully positioned to enjoy the luck of presidential selection.” Continue reading »

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Petition of the day

By on Aug 22, 2016 at 11:11 pm

The petition of the day is:

16-95

Issue: Whether an arbitration clause that does not expressly address the availability of class or collective arbitration is sufficient to defer the question of the availability of class or collective arbitration to an arbitrator to decide.

Monday round-up

By on Aug 22, 2016 at 6:48 am

In The New York Times, Alan Rappeport reports that “Democrats are planning to redouble their efforts to make the fate of the Supreme Court a signature election issue,” while Morgan Lee of the Associated Press (via Deseret News) reports on recent remarks by Justice Ruth Bader Ginsburg, who indicated that “split 4-4 decisions by the short-handed high court have left important public policy issues up in the air, including the president’s immigration plan, that are likely to be revisited by the court in the future.”  And in The Washington Post, Robert Barnes reports that neither Ginsburg “— the court’s oldest member, and so the one most often in the will-she-go spotlight — nor anyone else is preparing to step down soon.”

Briefly:

  • In The Washington Post, DeNeen Brown interviews Cecilia “Cissy” Marshall, the wife of the late Justice Thurgood Marshall.
  • At Nahmod Law, Sheldon Nahmod discusses the amicus brief that he filed in Manuel v. City of Joliet, in which the Court will consider whether the Fourth Amendment right to be free from unreasonable seizure allows a malicious prosecution claim.

Remember, we rely exclusively on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

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Petitions of the day

By on Aug 19, 2016 at 11:19 pm

The petitions of the day are:

16-135

Issue: (1) Whether, under the doctrine of forum non conveniens, as applied to a confirmation action to enforce a foreign arbitration award, a foreign forum is per se inadequate because assets in the United States cannot be attached by a foreign court, as the D.C. Circuit has held; or is adequate if it has jurisdiction and there are assets of the defendant in the alternative forum, as the Second Circuit held; and (2) whether, under Article V(2)(b) of the New York Convention, the public policy in favor of arbitration yields where confirmation of an arbitral award would be contrary to the countervailing public policies such as international comity and the policy against tax evasion.

16-136

Issue: (1) Whether, under the doctrine of forum non conveniens, as applied to a confirmation action to enforce a foreign arbitral award, a foreign forum is per se inadequate because assets in the United States cannot be attached by a foreign court, as the D.C. Circuit has held; or whether forum non conveniens remains a viable doctrine in foreign arbitration confirmation actions if the foreign forum has jurisdiction and there are some assets of the defendant available in the alternative forum, as the Second Circuit held; and (2) whether, under Article V(2)(b) of the New York Convention, public policy in favor of arbitration yields where confirmation of an arbitral award would be contrary to countervailing public policies such as constitutional separation of powers principles, combating government corruption, and/or international comity.

Friday round-up

By on Aug 19, 2016 at 10:38 am

Briefly:

  • At the Fed Soc Blog, Brian Miller argues that, although Friedrichs v. California Teachers Association (the challenge to fees paid by public employees who are represented by a union to which they do not belong, on which the Court deadlocked last Term)  “was – and still is– derided in the media and by its legal opponents as a thinly veiled conservative attempt to ‘weaponize’ the First Amendment as a vehicle to advance conservative policies,” there is in fact “a trend to look at First Amendment issues through a partisan lens – but conservatives aren’t behind it.”
  • In another post (podcast) at the Fed Soc Blog, Thomas Berg, Christopher Lund, and Marty Lederman discuss Trinity Lutheran Church v. Pauley, in which the Court will consider whether a church’s exclusion from a state-run program that provides non-profits with funds to resurface their playgrounds using recycled tire scraps violates the Constitution.
  • In The Economist, Steven Mazie argues that, although Democratic presidential candidate Hillary Clinton’s pledge to reverse the effects of the Court’s decision in Citizens United v. FEC is a “worthy” goal, “and her proposals to increase transparency and establish a federal matching programme for small donations are both promising and plausible,” “her more ambitious plan is guaranteed to come up short.”
  • In The Huffington Post, Cristian Farias reports that, even “as Gov. Pat McCrory (R) is imploring the Supreme Court to put the” Fourth Circuit’s ruling striking down North Carolina’s 2013 election law “on hold, the North Carolina Republican Party is acting as if the decision never happened.”

Remember, we rely exclusively on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

 

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Petition of the day

By on Aug 18, 2016 at 11:16 pm

The petition of the day is:

16-130

Issue: Whether, under the public disclosure bar of the False Claims Act, 31 U.S.C. § 3730(e)(4)(A), which prohibits qui tam actions when “substantially the same allegations or transactions” have been publicly disclosed, unless the qui tam plaintiff is an original source of the information, a qui tam action may proceed where it is based on specific allegations of fraud that were not the subject of prior public disclosures and that add substantial material information to the public disclosures, and when the publicly disclosed allegations “encompass” the qui tam allegations only if both sets of allegations are characterized at a very high level of generality.

Thursday round-up

By on Aug 18, 2016 at 10:00 am

Briefly:

  • In Supreme Court Brief (subscription required), Tony Mauro reports that the “late U.S. Supreme Court Justice Antonin Scalia would have loved to take on the case of Armstrong v. Thompson, now before the court,” because – if review is granted – “it would be the first time in decades that the high court takes a fresh look at New York Times v. Sullivan, the landmark 1964 decision that made it very difficult for public officials to successfully sue for libel or defamation.”
  • In her column for The New York Times, Linda Greenhouse suggests that the Court’s recent decision striking down Texas’s abortion regulations (among others) reflects “a new willingness to call out legislatures for what they are really doing, not just what they say they are doing.”
  • Denise Lavoie of the Associated Press (via Boston.com) reports that “James ‘Whitey’ Bulger has asked the U.S. Supreme Court to hear his appeal of his racketeering convictions for playing a role in 11 murders and committing a litany of other crimes.”
  • In The Huffington Post, Jason Steed argues that “moving to confirm” Chief Judge Merrick Garland to fill the slot created by the death of Justice Antonin Scalia “—now,before the election—is a high-profile, low-cost way for Republicans to distance themselves from Trump.”
  • At his eponymous blog, Lyle Denniston reports that the Court “soon will be asked to clarify the duty of members of the military services to obey orders, even if they believe that doing so would violate their religious faith.”
  • At Empirical SCOTUS, Adam Feldman “looks at five ‘sleeper cases’ from this past Term that have made their major impact through the lower courts.”

Remember, we rely exclusively on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

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Petition of the day

By on Aug 17, 2016 at 11:14 pm

The petition of the day is:

16-123

Issue: Whether a criminal defendant charged with an offense punishable by incarceration is denied due process when he is tried by a non-lawyer judge, where the defendant has no opportunity for a de novo trial before a judge who is a lawyer.

Wednesday round-up

By on Aug 17, 2016 at 10:05 am

Briefly:

  • In The Huffington Post, Cristian Farias reports that Chief Justice John Roberts denied a request by lawyers for a Virginia school board for an extension of time to file its petition for review in the case of a transgender student who wants to be able to use the boys’ bathroom.
  • In The National Law Journal (subscription or registration required), Tony Mauro reports that, although the chambers of the late Justice Antonin Scalia have not yet been shut down, “one aspect of Scalia’s legacy is moving forward: the vigorous debate among legal scholars and former clerks about the justice’s impact and importance on the court.”
  • Also in The Huffington Post, Bill Blum looks back at what he describes as the late Justice Lewis Powell’s “right-wing legacy” and its effect on the Court.
  • Lawrence Hurley of Reuters reports that the Court’s “handling of North Carolina’s long-shot bid to reinstate its contentious voter identification law will set the tone for the court’s treatment of similar cases that could reach the justices before the Nov. 8 elections.”
  • At the International Municipal Lawyers Association’s Appellate Practice Blog, Lisa Soronen looks ahead to Manuel v. City of Joliet, in which the Court will consider whether “malicious prosecution claims can be brought under the Fourth Amendment in the first place.”
  • Advice and Consent (podcast) discusses possible scenarios for Supreme Court nominees based on which party wins the White House and the Senate.
  • At his Election Law Blog, Rick Hasen reports that Texas plans to seek Supreme Court review of a ruling by the U.S. Court of Appeals for the Fifth Circuit in the challenge to its voter identification law.
  • At Slate, Mark Joseph Stern suggests that a recent police shooting in Wisconsin “provides us with a brutal reminder that our modern problem of excessive police force cannot be curbed by current standards—and that Supreme Court Justice Sonia Sotomayoris on a quest to fix the faulty constitutional interpretation that led us into this mess in the first place.”

Remember, we rely exclusively on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

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Petition of the day

By on Aug 16, 2016 at 11:13 pm

The petition of the day is:

15-1539

Issue: (1) Whether, where an acquitted defendant contested multiple elements of the offense, was acquitted by a general verdict, and can demonstrate that the evidence of a particular element was constitutionally insufficient, the Double Jeopardy Clause collaterally estops the government from prosecuting the defendant for another offense that also requires proof of that particular element; and (2) where an acquitted defendant contested multiple elements of the offense, what burden of proof must he shoulder to establish that a particular element was “necessarily decided” in his favor for purposes of collateral estoppel.

 

 
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