The Supreme Court, taking on a bankruptcy issue that grew out of the collapse of the U.S. housing market, agreed on Monday to sort out when a mortgage debt on a home that has lost its value can be completely wiped out.  At issue in a pair of cases is the so-called “strip off” in bankruptcy of a mortgage that is ranked lower than another loan when the mortgaged property is worth so little that it could not cover either debt.

The Court, in the consolidated cases of Bank of America v. Caulkett and Bank of America v. Toledo-Cardona, will be deciding whether a “strip off” of a mortgage is to be barred in the same way that a “strip down” already is, under a 1992 Supreme Court ruling (Dewsnup v. Timm).

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Today’s orders (UPDATED)

By on Nov 17, 2014 at 9:39 am

The Court granted two cases this morning, consolidating them for one hour of oral argument.  The grants came in Bank of America v. Toled0-Cardona and Bank of America v. Caulkett, both involving mortgage liens and Section 506(d) of the Bankruptcy Code.

The Court did not call for the views of the Solicitor General in any new cases today.  It issued one per curiam opinion, reversing and remanding the decision of the Ninth Circuit in Glebe v. Frost.

The Court apparently did not act on Berger v. ACLU or Walker v. Texas Division, Sons of Confederate Veterans, two cases from North Carolina and Texas, respectively, involving the government speech doctrine and specialty license-plate programs.

We will have more details on today’s orders soon.

Posted in Everything Else

Monday round-up

By on Nov 17, 2014 at 6:35 am

The Jerusalem passport case Zivotofsky v. Kerry, argued earlier this month, continues to generate commentary. At The Volokh Conspiracy, Eugene Kontorovich discusses the significance of the Constitution’s Property  Clause, which gives Congress the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States,” to a possible resolution of the case.  And Marty Lederman discusses the same argument at Just Security. Continue reading »

Posted in Round-up

This week at the Court

By on Nov 16, 2014 at 12:05 am

On Monday the Court issued orders from the November 14 Conference.  It granted two new cases, which were consolidated for one hour of oral argument.  Amy reported on those orders. We do not expect opinions in argued cases this week. The next Conference is scheduled for November 25. Our list of “Petitions to watch” for that Conference is here.


Petition of the day

By on Nov 14, 2014 at 10:22 pm

The petition of the day is:


Issue: (1) Whether a convicted offender has a clearly established constitutional right – sufficient to defeat qualified immunity – to separate judicial pronouncement of mandatory post-release supervision; and (2) whether, absent a definitive ruling from this Court, a federal court of appeals’ habeas ruling could clearly establish such a right without regard to contrary rulings by state courts of coordinate jurisdiction.

UPDATED 4:49 p.m.  A second petition focusing on recognition of already-married couples has now been filed, from Tennessee.  It raises an additional issue: whether the ban on recognition violates married couples’ right to travel between the states.  The petition, docketed as 14-562, is Tanco v. Haslam.   If other petitions are filed at the Court this evening or over the weekend, they will not be docketed until Monday.


Claiming that the federal appeals court ruling that interrupted the string of decisions in favor of same-sex marriage was “riddled with flaws,” four married couples and two surviving spouses of same-sex marriages on Friday filed the first Supreme Court challenge to that ruling.  (The case has been docketed as 14-556.)

Although the joint petition in two Ohio cases technically raised only the question of the power of states to refuse to recognize same-sex marriages that already exist, the document ranged over all of the key issues that are likely to be decisive not only on that issue, but also on the question of new same-sex marriages.  Other petitions, including ones from Kentucky and Michigan, on the right-to-marry issue are expected to be filed shortly, perhaps later today.

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Ruling that the Obama administration has gone as far as it needed to avoid intruding on the religious beliefs of non-profit colleges, hospitals, and charities, the U.S. Court of Appeals for the District of Columbia Circuit on Friday upheld the latest version of the birth control mandate under the Affordable Care Act (ACA).

The decision is one of several by federal courts in the wake of the Supreme Court’s decision last June in Burwell v. Hobby Lobby Stores, giving for-profit businesses owned by a small group of religiously devout individuals an exemption from the mandate.

The new rulings are coming in the second round of challenges — by non-profit religious institutions.  The first of those cases has already reached the Supreme Court in the case of University of Notre Dame v. Burwell – a case that could be ready for the Justices to consider during the current Term.  The government is due to reply to the appeal in that case early next month.

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Relist Watch

By on Nov 14, 2014 at 8:42 am

John Elwood reviews Monday’s relisted cases.

With the noisy midterms firmly behind us, we can at last breathe easy and turn our attention to more pressing matters. Like net neutrality, or climate change, or the proliferating parodies of that 10 Hours Walking in NYC video. Or, for those more easily offended/less voyeuristically inclined, there’s Relist Watch – the Internet’s One-Stop Source for Ennui.

In light of our forthcoming day of public thanksgiving, let’s start with something for which to be thankful: last week’s Conference proved to be a veritable horn of plenty for last week’s relists. On Friday, the Court granted cert. in a duo of one-time relists – Chen v. Mayor and City Council of Baltimore, 13-10400, is the high-profile one, asking whether Federal Rule of Civil Procedure 4(m) gives a district court the discretion to extend the time for service of process absent a showing of good cause. The other case asks involves one of those obscure questions that is unlikely to draw much attention outside the specialized sliver of the bar it affects. What was it again? Oh yes — King v. Burwell, 14-114, asking whether the Affordable Care Act’s federal tax-credit subsidies for health insurance purchased through an “Exchange established by the State” also apply to insurance policies purchased through federal exchanges. Thus, aside from the cases granted out of the Long Conference, the Court appears to be firmly adhering to its practice of relisting cases at least once to perform a “quality check” before granting them. Continue reading »

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