Petition of the day

By on Oct 19, 2017 at 8:20 pm

The petition of the day is:

17-432

Issue: Whether the rule of American Pipe and Construction Co. v. Utah tolls statutes of limitations to permit a previously absent class member to bring a subsequent class action outside the applicable limitations period.

Thursday round-up

By on Oct 19, 2017 at 7:02 am

Briefly:

  • At Lawfare, Anthony Bellia and Bradford Clark, the authors of scholarship cited by Justice Neil Gorsuch during last week’s oral argument in Jesner v. Arab Bank, which asks whether corporations are liable under the Alien Tort Statute, point out that the court has never considered “whether permitting a suit solely between aliens under the ATS would violate Article III,” and suggest that “[d]oing so in Jesner would obviate the need to resolve other more difficult questions (such as corporate liability) that are not necessary to decide the case.”
  • In an op-ed for The New York Times, Jennifer Daskal explains why the court’s recent decision to review digital-privacy case United States v. Microsoft Corp., which asks whether the government can gain access from email providers to data that is stored overseas, “is a clarion call for Congressional action.”
  • At Take Care, Robert Post unpacks the Department of Justice’s amicus brief in Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the court will decide whether the First Amendment bars Colorado from requiring a baker to create a cake for a same-sex wedding, arguing that “[t]o key heightened First Amendment scrutiny to the expressive properties of human action,” as DOJ does in supporting the baker, “is … to risk stretching the First Amendment to encompass everything, which means that it will protect nothing.”
  • At The National Law Journal (subscription or registration required), Marcia Coyle looks at incoming Apple general counsel Kate Adams’ formative experience as a law clerk to retired Justice Sandra Day O’Connor.

We rely 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, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

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Petition of the day

By on Oct 18, 2017 at 8:30 pm

The petition of the day is:

17-431

Issue: Whether a regulation is content-based for purposes of the First Amendment when it only applies to unattended receptacles that solicit donations or collections.

Wednesday round-up

By on Oct 18, 2017 at 7:15 am

Yesterday the court removed securities-fraud case Leidos, Inc. v. Indiana Public Retirement System from the November argument calendar. At Bloomberg, Greg Stohr reports that the move came “after the two sides told the justices they are near a settlement,” and that the case had “asked the court to clarify investors’ ability to sue companies for omitting information from shareholder reports.” Additional coverage of the settlement in Leidos comes from Jack Newsham at Law360 (subscription required).

During the break between argument sessions, the justices’ off-the-bench activities are drawing attention. For this blog, Andrew Hamm highlights recent remarks by Justice Elena Kagan at the Chicago-Kent College of Law. Additional coverage comes from Steve Schmadeke for the Chicago Tribune, who reports that “Kagan did not directly address the perception that the court has become increasingly politicized but instead emphasized that more than half of the court’s cases are decided unanimously.” For the Queens Chronicle, Ryan Brady covers a recent appearance by Justice Sonia Sotomayor at Queens College. Michael Ortiz and Jill Leavey report for the Hofstra Chronicle that while in New York, Sotomayor also “had an intimate conversation with Hofstra’s law students about how she made it from the Bronx to the bench.” And for the New York Post, Rebecca Santiago talks to Justice Ruth Bader Ginsburg’s personal trainer about the justice’s famous twice-weekly workouts. For USA Today, Richard Wolf recounts his personal experience with the RBG workout program, which “clearly showed that the justice keeps fit.”

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Petition of the day

By on Oct 17, 2017 at 8:20 pm

The petition of the day is:

17-419

Issue: Whether the Supreme Court’s precedent and the doctrine of intergovernmental tax immunity bar states from exempting groups of state retirees from state income tax while discriminating against similarly situated federal retirees based on the source of their retirement income.

Justice Elena Kagan momentarily hedged her bets yesterday afternoon in front of an audience of law students at Chicago-Kent College of Law. But after struggling to find proper qualifiers, she didn’t hold back: “I don’t see how anyone could disagree with this: Thurgood Marshall was the greatest lawyer of the 20th century. No one did more to advance justice.” Kagan described Marshall as “an incredibly gifted trial lawyer,” a part of his work she called less well known than his appellate advocacy, most famously as counsel for the petitioners in Brown v. Board of Education, and his 24-year tenure as a justice on the Supreme Court.

Kagan, who clerked for Marshall, also had high praise for another former boss, Judge Abner Mikva of the U.S. Court of Appeals for the District of Columbia Circuit. Noting that Mikva also served in the House of Representatives and as White House counsel to President Bill Clinton, Kagan claimed Mikva “really got government,” sparking her own interest in government service.

Justice Kagan (Art Lien)

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Tuesday round-up

By on Oct 17, 2017 at 7:21 am

Yesterday the Supreme Court added four cases to its merits docket for the current term. Amy Howe has this blog’s coverage, which first appeared at Howe on the Court. The most high-profile grant was in United States v. Microsoft Corp., which asks whether the government can gain access from email providers to data that is stored overseas. Additional coverage of the grant in Microsoft comes from Mark Sherman at the Associated Press, Greg Stohr at Bloomberg, Lawrence Hurley at Reuters, Robert Barnes for The Washington Post, Adam Liptak for The New York Times, Brent Kendall for The Wall Street Journal, and Josh Gerstein at Politico, who reports that “[l]aw enforcement officials say they need the ability to compel U.S.-based firms to comply with subpoenas and search warrants, but the companies argue that giving American investigators the right to do that will lead to foreign governments demanding data stored on U.S. soil.” In an op-ed for The Washington Post’s Volokh Conspiracy blog, Orin Kerr remarks that “it’s shaping up to be a really big Supreme Court term for digital evidence collection.”

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Petitions of the day

By on Oct 16, 2017 at 8:20 pm

The petitions of the day are:

17-400

Issues: (1) Whether, when there is no way to tell whether a prior jury found particular facts against a party, due process permits those facts to be conclusively presumed against that party in subsequent litigation; and (2) whether strict-liability and negligence claims based on the findings by the class-action jury in Engle v. Liggett Group, Inc. are pre-empted by the many federal statutes that manifested Congress’s intent that cigarettes continue to be lawfully sold in the United States.

17-401

Issues: (1) Whether, when there is no way to tell whether a prior jury found particular facts against a party, due process permits those facts to be conclusively presumed against that party in subsequent litigation; and (2) whether strict-liability and negligence claims based on the findings by the class-action jury in Engle v. Liggett Group, Inc. are pre-empted by the many federal statutes that manifested Congress’s intent that cigarettes continue to be lawfully sold in the United States.

17-415

Issues: (1) Whether, when there is no way to tell whether a prior jury found particular facts against a party, due process permits those facts to be conclusively presumed against that party in subsequent litigation; and (2) whether, if the Engle v. Liggett Group, Inc. jury’s findings are deemed to establish that all cigarettes are inherently defective, claims based on those findings are pre-empted by the many federal statutes that manifest Congress’s intent that cigarettes continue to be lawfully sold in the United States.

17-443

Issues: (1) Whether, when there is no way to tell whether a prior jury found particular facts against a party, due process permits those facts to be conclusively presumed against that party in subsequent litigation; and (2) whether strict-liability and negligence claims based on the findings by the class-action jury in Engle v. Liggett Group, Inc. are pre-empted by the many federal statutes that manifest Congress’ intent that cigarettes continue to be lawfully sold in the United States.

This morning the Supreme Court issued orders from its October 13 conference. The justices added four new cases to their merits docket for the term, and several justices commented on some of the cases in which the court denied review.

The highest-profile grant of the day came in United States v. Microsoft Corp., in which the justices agreed to decide whether an email provider who has been served with a warrant must provide the federal government with emails, even when the email records are stored outside the United States. The case arose when the federal government asked for a warrant that would require the software behemoth to disclose information about a specific email account, which the government believed was being used for drug trafficking. The government relied on the Electronic Communications Privacy Act of 1986, also known as the Stored Communications Act, which authorizes the government to use a warrant to obtain email records when it has probable cause to believe a crime is being committed. A federal judge issued the warrant, which was served on Microsoft at its headquarters in Washington state.

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The October sitting has ended—and we’re here to wrap it up for you. On this episode, we begin by discussing the biggest news of the month: our new microphones, brought to you courtesy of our Patreon supporters. We also break down the December argument calendar (warrantless location tracking, cake-as-speech, federalism, and gambling) as well as the court’s long-awaited disposition of the travel-ban case.

We’re also joined this week by Nina Totenberg, who talked with us about how the first month looked from her (very nice) seat in the courtroom. Justice Gorsuch’s manner at oral argument: discussed. The reaction of the “reasonable party-goer” to marijuana: discussed. The extent to which the background of the court’s members creates a pro- or anti-“corporate” tilt: also discussed.

Last week, the court heard oral argument in Jesner v. Arab Bank, PLC, a major case about human-rights litigation and the Alien Tort Statute, and we discuss how the argument went in some detail. The court also heard argument in a case about the extent to which a time limit in a rule of appellate procedure is jurisdictional, and (ever on-brand) we discuss that case in nearly equal detail. Finally, we wrap things up with some listener hotline calls, including one about what liberals put on their steak.

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