Though Life Technologies v. Promega arises out of patent infringement litigation, the issue at the Supreme Court is really a classic statutory interpretation dispute turning on the meaning of the word “substantial.” Because the concept of substantiality is so ubiquitous in law (from the “substantial factor test” in tort causation to the “substantial evidence” test in administrative law), this seemingly narrow patent case should be of interest as much to general appellate practitioners as to patent law specialists.
Yesterday’s oral argument in Beckles v. United States found the justices wrestling with retroactivity and vagueness in the context of the U.S. Sentencing Guidelines. The petitioner, Travis Beckles, questioned the constitutionality of the residual clause of the career-offender provision in Section 4B1.2 of the guidelines after the Supreme Court, in Johnson v. United States, found an identically worded residual clause in the Armed Career Criminal Act to be unconstitutionally vague. Beckles asked the court to rule first on whether a favorable ruling on the constitutional question – on which he and the government agree — would be retroactive on collateral review. Even if the court were to find in favor of Beckles on both counts, he could still lose because of a unique interplay between the career-offender guideline and the guideline commentary, which specifically declared his offense – possession of a sawed-off shotgun – to be a crime of violence.
It was, as attorney Clifford Sloan – who represents Texas death-row inmate Bobby James Moore – said, a “vitally important, life-or-death” issue: Does the scheme that Texas uses to determine whether an inmate is intellectually disabled, and therefore cannot be executed, violate the Constitution? Perhaps reflecting the significance of the case, today’s oral argument included some occasionally testy exchanges, along with questions and responses that were often very detailed. But by the end of the hour, the Texas framework seemed to be in jeopardy and Moore seemed likely to prevail, even if the justices did not seem ready to issue a sweeping ruling on the death penalty and the intellectually disabled.
On December 1 at 2 p.m., the National Endowment for the Humanities will host a Facebook Live Q&A with Phil Hirschkop, one of the attorneys who represented an interracial couple in the case Loving v. Virginia, in which the court found the state’s anti-miscegenation bans unconstitutional. This event can be accessed on the NEH Facebook page.
Today, the court will hear oral argument in Moore v. Texas, which asks whether Texas can rely on an outdated standard in determining whether a defendant’s intellectual disability precludes him from being executed. Amy Howe previewed the case for this blog. Another preview comes from Karen Ojeda and Nicholas Halliburton for Cornell University Law School’s Legal Information Institute. Additional coverage of Moore comes from Nina Totenberg at NPR, who notes that “the state’s test is based on what the Texas Court of Criminal Appeals called ‘a consensus of Texas citizens,’ that not all those who meet the ‘social services definition’ of ‘retardation’ should be exempt from the death penalty,” and from Steven Mazie in The Economist. In an op-ed in The Washington Post, Carol and Jordan Steiker argue that rather than “relying on the same approach to intellectual disability that Texas uses in every other context (such as placement in special education or eligibility for disability benefits),” the state appeals “court sought to redefine the condition in the capital context so that only offenders who meet crude stereotypes about intellectual disability are shielded from execution.”
The petition of the day is:
Issues: (1) Whether the Indian Child Welfare Act of 1978 applies where the child has not been removed from an Indian family or community; (2) whether ICWA’s adoptive placement preferences, 25 U.S.C. § 1915(a), require removal from a foster placement made under Section 1915(b), for the purpose of triggering the adoptive placement preferences contained in Section 1915(a); and (3) whether the state courts erred in holding that “good cause” to depart from ICWA’s placement preferences must be proved by “clear and convincing evidence”—contrary to the text and structure of the statute and the decision of at least one other state court of last resort—or otherwise erred in their interpretation of “good cause.”
The following is a series of questions posed by Ronald Collins on the occasion of the publication of “Business and the Roberts Court” (Oxford University Press, 2016, pp. 342), edited by Jonathan H. Adler.
Welcome, Jonathan, and thank you for taking the time to participate in this question-and-answer exchange for our readers. And congratulations on the publication of your latest book – it is a thoughtful addition to the scholarly literature on the Supreme Court.
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The task of creating what I might call a constitutional ethos of economic liberty is no easy one. — Justice Antonin Scalia, October 26, 1984
Question: In your acknowledgements, you note that “Business and the Roberts Court” was almost derailed owing to the “untimely passing of Professor Larry Ribstein,” one of the former editors of The Supreme Court Economic Review. Can you say a few words about this and how following his death the book got back on track?
Adler: Larry’s untimely death was a tragedy, and we miss him. He was an important scholar, and he had interesting thoughts on how to understand Citizens United from the perspective of corporate law. His passing meant that I had to find a different way to address Citizens United in the book. Luckily, I was able to convince Joel Gora to come aboard and contribute an excellent chapter.
On December 1 at 5 p.m. PST, the Criminal Justice Section of the Bar Association of San Francisco will present a panel on “Securities Law, Insider Trading, and Salman v. U.S.” Speakers will include Rory Little, Gail Shifman, Ismail Ramsey and David Callaway; Jonathan Schmidt will serve as moderator. More information and registration for this event, which will be held at the BASF Conference Center in San Francisco, is available on the bar association’s website.