This edition of "Petitions to watch" features cases up for consideration at the Justices' December 10 conference.  These are 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.

Cahill v. Alexander

Docket: 10-203
Issue(s): Whether the states may, consistent with the First Amendment, restrict attorney advertising that involves unverifiable claims, including implied claims about the quality of attorneys' legal services, and marketing techniques that do not assist the public in the intelligent selection of counsel.

Certiorari stage documents:

Brown v. Rincon Band of Luiseno Mission Indians

Docket: 10-330
Issue(s): (1) Whether a state demands direct taxation of an Indian tribe in compact negotiations under Section 11 of the Indian Gaming Regulatory Act, when it bargains for a share of tribal gaming revenue for the state's general fund; and (2) whether a court exceeds its jurisdiction to determine the state's good faith in compact negotiations under Section 11 of the Indian Gaming Regulatory Act, when it weighs the relative value of concessions offered by the parties in those negotiations.

Certiorari stage documents:

CVSG Information:

Swarthout v. Cooke

Docket: 10-333
Issue(s): Whether a federal court may grant habeas corpus relief to a state prisoner based on its view that the state court erred in applying the state-law standard of evidentiary sufficiency governing state parole decisions.

Certiorari stage documents:

Shell Oil Co. v. Hebble

Docket: 10-349
Issue(s): 1) Whether, in calculating the ratio of punitive damages to harm to a plaintiff, heightened penalties such as 12% interest imposed to compel compliance may be treated as “compensatory”; 2) Whether, in determining the maximum punitive damages award in a case involving a substantial compensatory award and only economic harm, courts should be guided by the 1-to-1 ratio mentioned in State Farm Mutual Insurance Co. v. Campbell or instead presume that anything within the range of 4-to-1 is permissible.

Certiorari stage documents:

Tuck-It-Away, Inc. v. New York State Urban Development Corporation, dba Empire State Development Corporation

Docket: 10-402
Issue(s): 1) Whether it was error for the Court of Appeals of New York to disregard the principles enunciated in Kelo v. City of New London in sanctioning the use of eminent domain for the benefit of a private developer? 2) Whether the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States imposes any minimum procedural standards, in accordance with the requirement of fundamental fairness, to preserve a property owner's meaningful opportunity to be heard within the context of an eminent domain taking?

Certiorari stage documents:

Applera Corp. v. Enzo Biochem, Inc.

Docket: 10-426
Issue(s): Whether the Federal Circuit's standard for finding that a patent’s claims are “definite,” which is met as long as the language of a claim is not “insolubly ambiguous” or is capable of being construed, is consistent with the language of 35 U.S.C. § 112, which provides that the patent must include “claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.”

Certiorari stage documents:

CVSG Information:

DISCLOSURE: Akin Gump represents one of the parties in the case below; the case is listed here without regard to its chances of being granted.

North Star Alaska Housing Corporation v. United States

Note: Akin Gump represents the petitioner in this case.
Docket: 10-122
Issue(s): Is a party's bad faith misconduct outside of court proceedings categorically exempt from an award of attorneys' fees under the “bad faith exception” to the “American Rule” that each party ordinarily pays its own fees?

Certiorari stage documents:

The following petitions have been re-listed for the conference of December 15.  If any other paid petitions are re-distributed for this conference, we will add them below as soon as their re-distribution is noted on the docket.

PLIVA, Inc. v. Mensing (Granted )

Docket: 09-993
Issue(s): Whether the Eighth Circuit abrogated the Hatch-Waxman Amendments by allowing state tort liability for failure to warn in direct contravention of the Act’s requirement that a generic drug’s labeling be the same as the labeling approved by the Food and Drug Administration for the listed (or branded) drug.

Certiorari stage documents:

CVSG Information:

Actavis Elizabeth, L.L.C. v. Mensing (Granted )

Docket: 09-1039
Issue(s): Whether the Eighth Circuit abrogated the Hatch-Waxman Amendments by allowing state tort liability for failure to warn in direct contravention of the Act’s requirement that a generic drug’s labeling be the same as the labeling approved by the Food and Drug Administration for the listed (or branded) drug.

Certiorari stage documents:

CVSG Information:

Actavis, Inc. v. Demahy (Granted )

Docket: 09-1501
Issue(s): Whether the states are preempted under the Supremacy Clause of the Constitution from requiring additional safety information on a generic product label when the brand has not changed its label.

Certiorari stage documents:

Alderman v. United States

Docket: 09-1555
Issue(s): Whether Scarborough v. United States (1977) recognizes a distinct Commerce Clause authority, beyond the three categories recognized in United States v. Lopez (1995), United States v. Morrison (2000), and Gonzales v. Raich (2005), such that a federal statute which “cannot be justified as a regulation of the channels of commerce, as a protection of the instrumentalities of commerce, or as a regulation of intrastate activity that substantially affects interstate commerce,” may be sustained based on a “minimal nexus” between the activity regulated and interstate commerce.

Certiorari stage documents:

Allen v. Lawhorn

Docket: 10-24
Issue(s): Whether a state court’s determination that trial counsel’s waiver of a penalty-phase closing argument did not prejudice the defendant is “contrary to” Supreme Court precedent.

Certiorari stage documents:

Lafler v. Cooper (Granted )

Docket: 10-209
Issue(s): (1) Whether a defendant seeking habeas is entitled to relief based on ineffective assistance of counsel where counsel’s deficient advice caused the defendant to reject a plea bargain in which the defendant had no vested right, and where the rejection did not deny the defendant a fair trial. (2) What remedy, if any, should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures.

Certiorari stage documents:

Talk America Inc. v. Michigan Bell Telephone Co. (Granted )

Docket: 10-313
Issue(s): Whether the a public service commission was barred from requiring incumbent local exchange carriers (“ILECs”) to offer their competitors telecommunications facilities at cost-based rates under § 251(c)(2) of the Telecommunications Act of 1996 as a result of a Federal Communications Commission rule eliminating ILECs' obligation to provide similar facilities under § 251(c)(3) when they are used by competitors for a different statutory purpose. (Kagan, J., recused).

Certiorari stage documents:

Missouri v. Frye (Granted )

Docket: 10-444
Issue(s): Can a defendant who validly pleads guilty assert a claim of ineffective assistance of counsel by alleging that, but for counsel's error in failing to communicate a plea offer, he would have pleaded guilty with more favorable terms? What remedy, if any, should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures?

Certiorari stage documents:

Posted in Cases in the Pipeline

Recommended Citation: Christa Culver, Petitions to watch | Conference of 12.10.10, SCOTUSblog (Dec. 9, 2010, 4:10 PM), http://www.scotusblog.com/2010/12/petitions-to-watch-conference-of-12-10-10/