Relist Watch

By on Jan 18, 2017 at 1:19 pm

John Elwood reviews Tuesday’s relists

There is a point in bleak midwinter when hope is at its lowest ebb and despair at its zenith. I’m talking, of course, about the rerun season that predates the February sweeps. And rerun season is where we find ourselves now.

This week’s conference marks the theoretical “cutoff” for grants that could be argued this term without expedited briefing. But it looks like any new grants at this point will be argued in the fall: Last week’s new relists yielded 16 grants (for 13 hours of oral argument), likely filling up the remaining argument spots for the rest of the current term. Perhaps sensing that they should save their new stuff for the sweeps, the justices this week have given us only a bunch of returning relists. There is one upside to reruns, though: Because the cases are already familiar to our regular readers, it means that once again, we have a flimsy excuse not to provide detailed case descriptions.

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In its conference of January 19, 2017, the court will consider petitions involving issues such as whether Texas’ voter-ID law “results in” the abridgment of voting rights on account of race; whether a plaintiff’s claims arise out of or relate to a defendant’s forum activities when there is no causal link between the defendant’s forum contacts and the plaintiff’s claims; and whether the imposition of a death sentence in the absence of a unanimous jury verdict in support of death violates the Constitution.

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We live-blogged this morning as the court issued opinions.

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Tuesday morning’s argument in Midland Funding v. Johnson was a tale of two benches, with two groups of justices taking remarkably different approaches. As it comes to the justices, the question is whether a debt collector violates the Fair Debt Collection Practices Act by filing a claim in bankruptcy for a debt known to be uncollectible because of a statute of limitations.

Some of the justices found the activity unambiguously reprehensible. Justice Sonia Sotomayor led the way, dominating the argument time of Kannon Shanmugam (appearing on behalf of the debt collector Midland Funding). Early on, she challenged the underlying premise of the collector’s business:

I’m having a great deal of difficulty with this business model. Completely. You buy old, old debts that you know for certain are not within any statute of limitations. You buy them and you call up [debtors] and you say to them “You don’t have to pay me. But out of the goodness of your heart, you should”? Or do you just call them up and say “You owe me money” and you hope that they’ll pay you? And is it the same thing in bankruptcy court? You file a claim and you hope the trustee doesn’t see that it’s out of time? And apparently you collect on millions of dollars of those debts. So is that what you do?

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Wednesday round-up

By on Jan 18, 2017 at 7:07 am

Today the court hears oral argument in two cases. First up is Lee v. Tam, a First Amendment challenge to a government refusal to trademark a disparaging name. Amy Howe previewed the case for this blog. Alla Khodykina and Rachael Hancock provide a preview for Cornell University Law School’s Legal Information Institute. The second argument today is in three consolidated cases, Ziglar v. Abassi, Ashcroft v. Abassi and Hasty v. Abassi, suits against former high-ranking federal officials stemming from detentions in the wake of the September 11 attacks. Amy Howe had this blog’s preview. Karen Ojeda and Natalie San Juan preview the cases for Cornell. Additional coverage of the Abassi cases comes from Mark Sherman at the Associated Press, who notes that the “justices have twice sided with Ashcroft” in previous cases brought by 9/11 detainees, and that the “odds that the court will come out differently this time are long, especially because only six justices will take part,” and from Abigail Hauslohner and Ann Marimow in The Washington Post.

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Petition of the day

By on Jan 17, 2017 at 11:14 pm

The petition of the day is:

16-521

Issue: Whether a debtor’s oral disclosure to the bankruptcy trustee of a pending administrative matter is material evidence of mistake or inadvertence sufficient to defeat a motion for summary judgment on the ground of judicial estoppel in civil litigation arising out of the administrative matter.

Last Wednesday President-elect Donald Trump said that he will nominate the late Justice Antonin Scalia’s replacement within two weeks of taking office. If Trump wants a new justice on the bench before the April sitting begins, the Senate would likely need to hold hearings in March. A look at the timelines for recent nominations reveals that such a schedule might be workable, barring any unforeseen issues or Senate delay.

President Barack Obama nominated Elena Kagan to fill Justice John Paul Stevens’ seat on May 10, 2010. Hearings began 49 days later, on June 28. The Senate Judiciary Committee voted to endorse Kagan on July 20. Republicans held 41 Senate seats at the time and therefore could have filibustered her nomination, which would have required 60 votes to overcome. However, five Republicans expressed support for the nomination, and the full Senate confirmed Kagan on August 5, 63-37. All told, the process took 87 days from nomination to confirmation.

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Argument transcripts

By on Jan 17, 2017 at 2:49 pm

The transcript in Lynch v. Dimaya is here; the transcript in Midland Funding, LLC v. Johnson is here.

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No new grants, but a significant CVSG

By on Jan 17, 2017 at 11:00 am

Last week the justices added a whopping 16 new cases to their merits docket when they issued orders from the January 13 conference. When the justices returned from the holiday weekend this morning, they issued more orders from that conference, including a call for the views of the U.S. solicitor general in a pair of related cases, but did not grant any new cases.

The invitation to the federal government to file a brief came in Christie v. National Collegiate Athletic Association and New Jersey Thoroughbred Horsemen’s Association v. National Collegiate Athletic Association. The two cases have their roots in a federal law, the Professional and Amateur Sports Protection Act, which pre-empts state efforts to regulate sports betting. After the New Jersey legislature passed a law that would allow sports betting in casinos and racetracks in the state, professional sports leagues and the NCAA filed a lawsuit, arguing that the state law runs afoul of the PASPA. New Jersey Governor Chris Christie and a horseracing group that operates a racetrack in the state counter that the PASPA unconstitutionally “commandeers” the state’s regulatory power. There is no deadline for the federal government to submit its brief, which will almost certainly be filed by the new solicitor general (or acting solicitor general) in the Trump administration. If the Supreme Court were to grant review, the case would likely be argued next term, at which point the court is likely to have a ninth justice.

The court did not act on the challenge to a Texas law that requires voters to present specific forms of government-issued photo IDs to cast a ballot. The justices had first considered the petition for review at their January 6 conference and then relisted the case for further consideration at their January 13 conference.

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Tuesday round-up

By on Jan 17, 2017 at 7:21 am

Today the court hears oral argument in two cases. First up is Lynch v. Dimaya, a void-for-vagueness challenge to an immigrant-removal statute. Kevin Johnson previewed the case for this blog. Kara Goad and Elizabeth Sullivan provide a preview for Cornell University Law School’s Legal Information Institute. The next case on the argument docket is Midland Funding v. Johnson, which asks whether a federal fair-debt-collection-practice statute applies to stale claims filed by debt-buyers in bankruptcy court. Ronald Mann had this blog’s preview. Kimberly Petrick and Emily Rector preview the case for Cornell.
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