At its December 7, 2012 Conference, the Court will consider petitions seeking review of issues such as the constitutionality of the Defense of Marriage Act and California’s Proposition 8, the definition of “hot pursuit,” limits of arbitrator power, and pharmaceutical “reverse payments.”

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.

12-13

Issue: (1) Whether Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7, violates the equal protection component of the Due Process Clause of the Fifth Amendment; and (2) whether the court below erred by inventing and applying to Section 3 of the Defense of Marriage Act a previously unknown standard of equal protection review.

 

12-15

Issue: Whether Section 3 of the Defense of Marriage Act, 1 U.S.C. 7, violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their state.

 

12-16

Issue: Whether Section 3 of Defense of Marriage Act, 1 U.S.C. 7, violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their state.

 

12-23

Issue: Whether the Ninth Circuit Court of Appeals ignored this Court’s precedent and erred in holding that Arizona Revised Statutes (A.R.S.) Section 38-651(O) (Section O) violates the Equal Protection Clause by limiting healthcare benefits to state employees’ spouses and dependents – and thus not extending such benefits to state employees’ domestic partners – given that a) Section O is facially neutral and there is no evidence that the Legislature intended to discriminate based on sexual orientation; b) Section O furthers the State’s interests in promoting marriage while also eliminating the additional expense and administrative burdens involved in providing healthcare benefits to state employees’ domestic partners; and c) the court’s reason for finding that Section O discriminates against gay and lesbian state employees was that Arizona prohibits same-sex marriage.

 

12-63

Issue: Whether Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7, which defines the term “marriage” for all purposes under federal law as “only a legal union between one man and one woman as husband and wife,” deprives same-sex couples who are lawfully married under the laws of their states (such as New York) of the equal protection of the laws, as guaranteed by the Fifth Amendment to the Constitution of the United States.

 

12-97

Issue: (1) Whether Section 3 of the Defense of Marriage Act (DOMA), 1 U.S.C. § 7, violates the Tenth Amendment; and (2) whether Section 3 of DOMA violates the Spending Clause, U.S. Const. art. I, § 8, cl. 1.

 

12-135

Issue: Whether an arbitrator acts within his powers under the Federal Arbitration Act (as the Second and Third Circuits have held) or exceeds those powers (as the Fifth Circuit has held) by determining that parties affirmatively “agreed to authorize class arbitration,” Stolt-Nielsen S.A. v. Animalfeeds Int'l Corp., based solely on their use of broad contractual language precluding litigation and requiring arbitration of any dispute arising under their contract.

 

12-140

Issue: (1) Whether the hot pursuit exception to the warrant requirement is contingent on a subjective determination of pursuit; and (2) what constitutes a serious offense for purposes of dispensing with the warrant requirement; and what test or tests is proper to determine when warrantless entry is permissible.

 

12-144
Disclosure: Tejinder Singh of the law firm Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, was among the counsel on an amicus brief filed by international human rights advocates in support of the respondents in this case.

Issue: (1) Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman; and (2) whether petitioners have standing under Article III, § 2 of the Constitution in this case.

 

12-150

Issue: (1) Whether an abstract of judgment, which is prepared by a court clerk for sentencing purposes after a defendant’s guilty plea and without the defendant’s input, qualifies as a conclusive record made or used in adjudicating guilt sufficient to determine the nature of a prior conviction under Shepard v. United States; and (2) whether a burglary conviction in a state that does not require an unlawful or unprivileged entry can be considered a crime of violence under Leocal v. Ashcroft, when it is not a violent felony under Taylor v. United States.

 

12-182

Issue: Whether a research proposal which was never in fact performed can, as a matter of law, inherently anticipate a patent claim under Tilghman v. Proctor.

 

12-215

Issue: (1) Whether, assuming arguendo that a plaintiff can state a cognizable constitutional claim under either the Fourth or Fourteenth Amendment with respect to a child’s removal, the qualified immunity question as to a caseworker who removed a child in an investigation mandated by New York Social Services Law § 424 should be whether a reasonable jury could conclude that the child was not at imminent risk of harm or whether a reasonable caseworker in that particular caseworker’s position could have concluded that the child was; (2) whether, assuming arguendo that a plaintiff can state a cognizable constitutional claim under either the Fourth or Fourteenth Amendment with respect to a child’s removal, a caseworker is entitled to qualified immunity from suit where five judges of the United States Court of Appeals for the Second Circuit agree that there was an absence of clearly established statutory or constitutional rules of which the caseworker should have been aware when he secured a warrant to search a home and removed children at the direction of his superior; and (3) whether, after removing children from a home under the belief that they were abused, and, thereafter, a state court adjudicates a parent to have been so abusive of his children as to deny him further custody, the parent and the children can sue the caseworker who rescued children from further abuse on either substantive or procedural due process grounds.

 

12-231

Issue: Whether Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, violates the equal protection guarantee of the Fifth Amendment to the U.S. Constitution as applied to legally married same-sex couples.

 

12-245
Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as co-counsel to the respondents in this case, which is listed without regard to its likelihood of being granted.

Issue: Whether the federal antitrust laws permit a brand-name manufacturer that holds the patent for a drug to enter into a settlement of patent litigation with a prospective generic manufacturer, where the settlement includes a payment from the brand manufacturer to the generic manufacturer but does not exclude competition beyond the scope of the patent.

 

12-265
Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as co-counsel to the respondents in this case, which is listed without regard to its likelihood of being granted.

Issue: Whether the Third Circuit erred by holding, contrary to the Second, Eleventh, and Federal Circuits, that an agreement settling patent litigation that does not restrict competition outside the scope of the exclusionary right granted by the patent itself may presumptively violate the antitrust laws.

 

12-289

Issue: (1) Whether a federal official’s receipt and review of notice of private action, his exercise of discretion as to whether to invoke agency regulatory powers over such private action, and his decision not to invoke such powers, constitute "agency action" for purposes of Section 7(a)(2) of the Endangered Species Act, which requires consultation to ensure that federal “agency action” does not exterminate listed species; and (2) whether the federal courts lack jurisdiction over the action in light of changed circumstances.

 

12-302

Issue: Whether Section 3 of the Defense of Marriage Act violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State.

 

12-307
Disclosure: Kevin Russell of the law firm Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, was among the counsel on an amicus brief filed by former senators in support of Edith Windsor in this case.

Issue: (1) Whether Section 3 of the Defense of Marriage Act (DOMA) violates the Fifth Amendment's guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State; (2) whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and (3) whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

 

12-416
Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, also represented Louisiana Wholesale Drug Company et al. as an amicus in support of the petitioner in this case.

Issue: Whether reverse-payment agreements are per se lawful unless the underlying patent litigation was a sham or the patent was obtained by fraud (as the court below held), or instead are presumptively anticompetitive and unlawful (as the Third Circuit has held). (Alito, J., recused)

 

12-431

Issue: Under 11 U.S.C. § 365, whether a licensee retains the ability to use a debtor’s trademarks after the corresponding intellectual-property license is rejected in bankruptcy.

 

Posted in Cases in the Pipeline

Recommended Citation: Ben Cheng, Petitions to watch | Conference of December 7, 2012, SCOTUSblog (Dec. 4, 2012, 11:11 PM), http://www.scotusblog.com/2012/12/petitions-to-watch-conference-of-december-7-2012/