Editor's Note :

Editor's Note :

The Supreme Court will release orders from the May 24 conference on Tuesday at 9:30 a.m. There is a possibility of opinions at 10 a.m. We will live-blog at this link.

Petition of the day

By on May 17, 2018 at 7:30 pm

The petition of the day is:

17-1459

Issues: (1) Whether federal or state law governs the respect that must be accorded to the judgment of a foreign court in diversity cases; and (2) whether a district court’s decision on the merits of a claim becomes moot, and must be vacated, if the court of appeals determines that the plaintiff has not proven entitlement to the only remaining relief sought in connection with that claim.

Is Chevron deference unconstitutional? Congress, several justices and legal academics are debating the legitimacy of this decades-old principle of administrative law.

In Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., decided over 30 years ago, the Supreme Court declared that courts must defer to a federal agency’s reasonable interpretation of ambiguities in the agency’s governing statute. Although the doctrine has been narrowed in recent years, it has remained a bedrock principle of administrative law. Recently, however, both Justice Clarence Thomas and Justice Neil Gorsuch have questioned the constitutionality of Chevron deference. Just a few weeks ago, in his opinion for the court in SAS Institute v. Iancu, Gorsuch began by noting SAS Institute’s proposal that the Supreme Court eliminate Chevron deference altogether — an idea that the court chose to “leave for another day” rather than reject out of hand. Congress has also expressed concern. In both 2016 and 2017, the House of Representatives voted in favor of a bill abolishing Chevron deference on the ground that it is “difficult, if not impossible, to square with separation of powers.” Now, legal academics are taking sides in the debate as well.

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Thursday round-up

By on May 17, 2018 at 7:26 am

At his eponymous blog, Michael Dorf explores the judicial politics at play in Monday’s decision in Murphy v. National Collegiate Athletic Association, in which the justices struck down the federal law that bars states from legalizing sports betting, that might “explain[] the liberal wing of the Court’s acceptance of the anti-commandeering doctrine.” At PrawfsBlawg, Rick Hill suggests that the case “is an elegant illustration of how disagreements about baselines can make a hash of distinctions between ‘negative’ prohibitions and ‘affirmative’ mandates.” In an op-ed for The Daily Signal, Jonathan Wood asserts that “[r]egardless of your personal views of sports betting, you should celebrate this decision as a win for federalism, a core guarantee of democratic accountability.”

At The Daily Caller, Kevin Daley reports that “[t]wo surrogate mothers are petitioning the U.S. Supreme Court to give greater credence to the constitutional rights of surrogates in custody disputes,” noting that “[a]t this stage of their cases, the women are not litigating the merits of their claims,” but “are fighting for the right to argue that their surrogacy contracts are unlawful.” Additional coverage comes from Ariana Eunjung Cha for The Washington Post. Continue reading »

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Petition of the day

By on May 16, 2018 at 8:00 pm

The petition of the day is:

17-1449

Issues: (1) Whether the Supreme Court of Arizona erred in holding that the introduction of a defendant’s past violent conduct in the penalty phase of a capital trial automatically requires that jurors be informed about the defendant’s parole ineligibility pursuant to the due process clause as interpreted in Simmons v. South Carolina and its progeny; and (2) whether Simmons applies in a sentencing proceeding for capital murder committed by a defendant already in prison, a context demonstrating that incarceration is not a sufficient means of preventing future violence by that defendant.

Rather than originating from a federal court of appeals like the majority of cases before the Supreme Court, the most discussed case of this term came from a state court. Masterpiece Cakeshop v. Colorado Civil Rights Commission was petitioned to the Supreme Court after a decision from the Colorado Court of Appeals, and Colorado’s solicitor general, Frederick Yarger, handled the argument for the respondent, the Colorado Civil Rights Commission.

As the highest court in the land, the Supreme Court is the only appellate court to hear cases from both state and federal courts. This term, the court heard arguments in seven other cases along with Masterpiece Cakeshop in which the court below was a state court. [The following links for these cases are to the lower-court opinions: Cyan Inc. v. Beaver County Employees Retirement Fund, Masterpiece Cakeshop, Artis v. District of Columbia, Collins v. Virginia, Currier v. Virginia, McCoy v. Lousiana, Upper Skagit Indian Tribe v. Lundgren and South Dakota v. Wayfair.] Aside from cases that start in state courts, many other cases, like the recently decided Murphy v. National Collegiate Athletic Association, have vast implications for the states and state laws. Because many of the court’s most well-known cases come from federal courts of appeals, however, cases in which states are involved or that come from state courts can be overlooked. These cases play an incredibly important role in the Supreme Court’s annual docket and the decisions often have vast implications for state populations as well as for the nation as a whole.

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Scott Dodson is the Associate Dean for Research and the James Edgar Hervey Chair in Litigation at UC Hastings College of the Law.

The basic separation-of-powers model allocates lawmaking power to the legislative branch, enforcement power to the executive branch, and interpretive and adjudicative power to the judicial branch. But, of course, there are areas of the law in which these powers shift or overlap among the branches.

Court rulemaking is one of those areas. With few exceptions, Congress has the sole constitutional authority to make procedural law for the lower federal courts. In practice, though, things are more complicated. Because the judiciary’s expertise in court procedure exceeds the legislature’s, Congress has delegated its authority to make general rules of federal-court practice and procedure to the Supreme Court in a statute called the Rules Enabling Act. The REA prescribes some procedures for court rulemaking and delegates other rulemaking procedures to the Judicial Conference, which is a group of federal judges prescribed by statute.

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Wednesday round-up

By on May 16, 2018 at 7:27 am

Court-watchers continue to focus on Monday’s ruling in Murphy v. National Collegiate Athletic Association, in which the justices struck down the federal law that bars states from legalizing sports betting. Scott Bomboy covers the decision for Constitution Daily. For The Washington Post, Amber Phillips offers “a step-by-step rundown of key moments in the debate on gambling in America that got us to this monumental one.” For the Los Angeles Times, David Savage reports that the decision “trumpeted the independence of the states.” At The Economist’s Democracy in America blog, Steven Mazie calls it “a loss for the Trump administration,” which “would like to remove two … policies from the purview of state legislatures: the spreading legalisation of marijuana and ‘sanctuary city’ laws that partially shield undocumented immigrants from the reach of Immigration and Customs Enforcement.” At Medium, Daniel Hemel observes that “[n]ot only did the Supreme Court strike down the federal law at issue, … but it also appears to have invalidated a broad swath of congressional limitations on state tax authority. (Oh, and it also saved sanctuary cities.)” Additional commentary comes from Sam Kamin in an op-ed for The Hill, John Kindt in another Hill op-ed, Noah Feldman in an op-ed at Bloomberg, Mark Joseph Stern at Slate, and Ilya Somin at Reason’s Volokh Conspiracy blog. At Good Judgment, Ryan Adler “puts this as a win for the crowd,” noting that “forecasters held a tight range of a 75% to 80% chance that the Supreme Court would rule that Congress couldn’t prevent New Jersey from repealing its own state prohibitions on sports gambling.”

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Petition of the day

By on May 15, 2018 at 10:57 pm

The petition of the day is:

17-1438

Issues: (1) Whether a state court may impose onerous contractual obligations on a non-signatory to the contract by disregarding the full-disclosure requirements of federal bankruptcy law and foisting the undisclosed perpetual indemnity obligation of a Chapter 11 debtor upon an unknowing purchaser of related assets; and (2) whether boilerplate “assumed-unless-rejected” language in a bankruptcy reorganization plan renders an undisclosed executory contract assumed under 11 U.S.C. § 365.

The following is a series of questions posed by Ronald Collins to Adam Winkler on the occasion of the publication of Winkler’s book “We the Corporations: How American Businesses Won Their Civil Rights” (Liveright, 2018, $28.95, pp. 471).

Adam Winkler is a professor of law at the University of California at Los Angeles. His last book was “Gunfight: The Battle over the Right to Bear Arms in America” (W.W. Norton, 2011).

Welcome, Adam, 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.

* * *

Question: Your book offers a new wrinkle on the founding of America and the Jamestown story of 1607. Do tell.

Winkler: Americans celebrate the liberty-seeking Pilgrims, but the first permanent English colony in the New World was 13 years earlier in Jamestown, which was a corporate business venture. Indeed, the Virginia Company came to America to make money. The company also introduced democratic reforms, such as the first representative assembly, not in the spirit of popular sovereignty but to pursue profit.

Question: How do dissent in the colonies and the Boston Tea Party of 1773 fit into your narrative?

Winkler: The American Revolution was also in small part a revolt against the world’s most powerful corporation, the East India Company. When the company’s fortunes soured, the British government deemed the corporation too big to fail — and, as part of a massive bailout, gave the company for the first time the right to sell tea in the colonies without American middlemen. The Boston Tea Party was an uprising by merchants who, that night, went out to throw the East India Company’s tea overboard.

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Yesterday marked the 225th day of the 2017 Supreme Court term. The court compensated for a slow term so far with five new decisions. Even with these rulings — Murphy v. NCAA, Dahda v. United States, Byrd v. United States, United States v. Sanchez-Gomez and McCoy v. Louisiana — the court is still behind its output every other year under Chief Justice John Roberts. Counting the output from days since the first oral argument of the term seems the most appropriate way to normalize the court’s output rate across terms. This figure shows where the court stands now in terms of decision output and how this compares to all of the terms since 2005.

Click graph to enlarge.

The Supreme Court’s previous low count for opinion output after 225 days was in 2007, with 31 opinions.

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