The Republican River


All the rivers run into the sea;

Yet the sea is not full;

Unto the place from whence the rivers come,

Thither they return again.

–Ecclesiastes 1:7 (KJV)



On Tuesday, the Court heard arguments in an original jurisdiction dispute between Kansas, Colorado, and Nebraska over flows of a common river: the Republican River. After the states disputed the terms of their 1943 compact, they enacted a 2003 settlement stipulation. When the parties confronted a breach by Nebraska and a dispute over the water supply models they used to calculate Nebraska’s share, they reached an impasse. Kansas exercised its veto power, sending the dispute first to arbitration, then the Special Master and to the Supreme Court. Continue reading »

Relist Watch

By on Oct 16, 2014 at 10:57 am

John Elwood reviews Tuesday’s relisted cases.

Though we’re just a week into the new Term, OT2014 has already had more than its share of headlines, with the Justices issuing a slew of emergency orders on hot topics ranging from gay marriage to voting rights to abortion. But those faded into insignificance Wednesday as the Court took up the controversial issue of teeth whitening, with the Nine debating whether strips, gels, or trays were the best way to get their ivories just the right shade of Biden. The magic number for adult teeth may be thirty-two, but the magic number for relists this week is the almost manageable number of eleven. Relist Watch will now pause for three minutes and thirty-seven seconds while you watch that last link.     Continue reading »


At its Conference on October 17, 2014, the Court will consider petitions seeking review of issues such as the standard of review for exhaustion under the Prison Litigation Reform Act, the admissibility of lay testimony that is based on specialized knowledge, and proof of causation in a prosecution for insider trading.

This edition of “Petitions to watch” features petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues.  Our policy is to include and disclose all cases in which Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, represents either a party or an amicus in the case, with the exception of the rare cases in which Goldstein & Russell represents the respondent(s) but does not appear on the briefs in the case.

Continue reading »


Thursday round-up

By on Oct 16, 2014 at 6:12 am

Yesterday the Court heard oral arguments in the patent procedure case Teva Pharmaceuticals USA v. Sandoz, Inc. Lyle Denniston covered the oral argument for this blog. At Written Description, Lisa Larrimore Ouellette provides her “thoughts about the leaning of each Justice,” while Irena Royzman analyzes the arguments in the case for Law360 (registration or subscription required).  At ISCOTUSnow, Edward Lee predicts the winner of the oral argument in both of yesterday’s cases based on the number of questions for each side at the oral argument.  Continue reading »

Posted in Round-up

Event announcments

By on Oct 16, 2014 at 12:05 am

Today at 1 p.m. the State and Local Legal Center will host a preview of the Court’s Term focusing on cases that relate to state and local government. The webinar is free; register here.

On November 13 Bloomberg BNA will host a day-long conference on the Court’s impact on patent enforcement at Wiley Rein LLP in Washington, DC. More information is available here.


Petition of the day

By on Oct 15, 2014 at 10:15 pm

The petition of the day is:


Issue: (1) Whether, under the Employee Retirement Income Security Act of 1974 (“ERISA”), a service provider that contracts with an employer to provide services to an ERISA plan exercises “control” over “plan assets” when the service provider (a) contracts with the employer for compensation for services provided to the plan, and (b) elects to exercise its contractual right to receive that compensation, rather than waiving that right; and (2) whether under the plain language of section 408 of ERISA, a provider of services to an ERISA plan can be held to have violated section 406 of ERISA, which states that a fiduciary to an ERISA plan may not “deal with the assets of the plan in his own interest or for his own account,” when it has received only “reasonable compensation” for its services.

Saying that the spread across the country of new laws to restrict voting rights will create new tests of constitutionality for the Supreme Court, the Obama administration on Wednesday evening asked the Justices in the meantime to bar Texas from using its strict new voter ID law.  The government’s application was one of three (the others are here and here) seeking delay of the new law — a delay that clearly would last through this year’s election, including early voting that starts Monday in Texas.

The challenges followed swiftly after the U.S. Court of Appeals for the Fifth Circuit voted to allow the law to be in full effect, after having never been used in a federal election.  The pleas for delay to the Supreme Court do not ask for an immediate ruling on the law’s constitutionality, leaving that to the Fifth Circuit for now instead.

Continue reading »

Today’s transcripts

By on Oct 15, 2014 at 5:32 pm

The transcript in Teva Pharmaceuticals USA v. Sandoz is here

The transcript in Jennings v. Stephens is here

Posted in Merits Cases

The Supreme Court pondered laboriously Wednesday the difference between what is fact and what is law.  Finding no sure way to answer, the Justices seemed tempted to go with a gut feeling that it needed to be made simple, to treat them as the same — at least for one branch of patent law.  But there is a directive from Congress saying they are different, so the temptation might wind up being a wrong though easy way out.

That was the dilemma that appeared to emerge as the Justices heard one of the biggest patent cases in years, Teva Pharmaceuticals USA v. Sandoz, Inc., over the differing — and maybe competing — roles of trial judges and a specialized federal appeals court that has a major role in shaping the law of inventions.

Wiliam M. Jay for petitioner

Wiliam M. Jay for petitioner

Continue reading »

Eric M. Fraser practices appellate, antitrust, and intellectual property law at Osborn Maledon, P.A.

The Supreme Court is wary of allowing a state to bestow immunity from federal antitrust laws on a group of professionals regulating themselves without supervision from the state. That sentiment came through during arguments yesterday in North Carolina Board of Dental Examiners v. Federal Trade Commission. After an hour of argument, however, the precise boundaries of immunity for state agencies remained far from clear.

Mr. Mooppan

Hashim Mooppan for NC Board of Dental Examiners

Continue reading »

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