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

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Wednesday round-up

By on Oct 15, 2014 at 5:55 am

Yesterday morning the Court heard oral arguments in North Carolina Board of Dental Examiners v. Federal Trade Commission, in which the Justices are considering whether a state dentistry board can prohibit non-dentists from selling teeth –whitening services.  Nina Totenberg covers the argument for NPR, while Daniel Fisher of Forbes concludes that the Justices “seemed left in a quandary about how to deal with a clear example of self-interested professionals trying to keep prices high in a lucrative business by excluding competition.”

The Court also heard oral arguments in the water-rights dispute between Kansas, on one side, and Nebraska and Colorado on the other.  Jeremy Jacobs covers the proceedings for Greenwire, while Kimberly Bennett does the same (for both cases) at JURIST.  And at ISCOTUSnow, Edward Lee predicts the winners of both of Tuesday’s oral arguments based on the number of questions for each side. Continue reading »

Posted in Round-up

Petition of the day

By on Oct 14, 2014 at 10:05 pm

The petition of the day is:


Issue: Whether, in enacting the Clean Water Act, Congress intended to strip the states of the ability to punish harm to their wildlife resulting from oil spills.

Over the dissents of three Justices, the Supreme Court on Tuesday evening barred Texas from enforcing two parts of its new abortion-restriction law — one part as it applied throughout the state, the other as it applied to two clinics in the southwest part of the state.

The state may not now enforce a requirement that all clinics in the state upgrade their facilities to be hospital-like surgical centers, even when they perform abortions only through the use of drugs, not surgery.  And it may not enforce, against the clinics in McAllen and El Paso, a requirement that all doctors performing abortions have privileges to admit patients to a hospital within thirty miles of the clinic.  That requirement can continue to be enforced elsewhere in Texas, the Court indicated.

Those two provisions, together, had reduced the number of clinics still operating in the state to seven, with an eighth soon to open.  At one time recently, Texas had forty-one clinics.  The Supreme Court’s action Tuesday will allow the reopening of thirteen closed clinics on Wednesday, lawyers for the clinics said.

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For the second time in the past four days, North Carolina’s ban on same-sex marriage has been struck down.  Two different judges reached the same constitutional conclusion in separate cases — one in Asheville, on Friday, the other in Greensboro, on Tuesday afternoon.

North Carolina is located in the federal judiciary’s Fourth Circuit, and both judges said they were bound by the ruling of the U.S. Court of Appeals for that circuit, finding Virginia’s ban to be unconstitutional.  That Fourth Circuit decision was one that the Supreme Court refused to review last week.

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UPDATED Wednesday 9:35 a.m.  An application for a delay of the Texas voter ID law has now been filed at the Supreme Court.  It argued that more confusion will result from implementing that law than delaying its further enforcement.  The application can be read here.


UPDATED 6:24 p.m.  Lawyers for civil rights groups challenging the Texas voter ID law said on Tuesday afternoon that they will now ask the Supreme Court to block the law.   The Justice Department is also involved in the case, but its plans are not known at this time.  The Court has recently taken different approaches to new voting restrictions, blocking them in Wisconsin but allowing them to remain in place in Ohio and North Carolina.


The U.S. Court of Appeals for the Fifth Circuit on Tuesday afternoon gave the state of Texas permission to enforce its strict voter ID law, finding that a federal judge’s ruling last week barring the use of that law “substantially disrupts the election process . . . just nine days before early voting begins” next Monday.

The three-judge panel commented that the Supreme Court “has repeatedly instructed courts to carefully consider the importance of preserving the status quo on the eve of an election.” That was a controlling reason, it said, for permitting the law to govern voting in the remaining days before the November 4 election.

The challengers have the option of taking the issue on to the Supreme Court; their plans, however, have not been made known yet.

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The problem of fixing the federal health care program will only grow worse if the Supreme Court does not promptly resolve the legality of subsidies to help lower-income individuals pay for insurance, the challengers to the subsidy scheme told the Justices on Tuesday.  This was the formal reply to the Obama administration’s argument early this month that the Court should wait to see how a federal appeals court deals with the subsidies’ legality.

Trying to head off a denial of review by the Justices of their challenge this Term, their new filing argued that postponing the dispute “would be the worst possible course,” because millions of individuals who have come to rely on the subsidy payments face the prospect of losing them as the dispute lingered in the courts, and employers, insurers and states have also relied on the system as the government now operates it.

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Today’s transcripts

By on Oct 14, 2014 at 3:05 pm

The transcript in Kansas v. Nebraska is here

The transcript in North Carolina State Board of Dental Examiners v. FTC is here

Posted in Merits Cases

Despite all the money and resources poured into Supreme Court amicus briefs these days, it is relatively rare that an amicus substantially influences the central merits of a case. However, an amicus brief filed by the Criminal Justice Legal Foundation in Jennings v. Stephens, the second argument this Wednesday, may be such a brief. It provides a balanced analysis of the legal question presented — although the ultimate disposition that the brief suggests may prove too much for some of the Justices. Continue reading »

The longstanding question of a judge’s power to impose a longer sentence by relying on conduct that the jury rejected as evidence of guilt will linger further.  Over the dissents of three Justices — one fewer than the number needed to grant review — the Court on Tuesday turned aside the latest attempt to get that constitutional question answered.  The denied case was Jones v. United States.

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