Petition of the day

By on Feb 27, 2015 at 10:10 pm

The petition of the day is:


Issue: Whether, under the Employee Retirement and Income Security Act of 1974 (ERISA), a lawsuit by an ERISA fiduciary against a participant to recover an alleged overpayment by the plan seeks “equitable relief” within the meaning of ERISA section 502(a)(3), 29 U.S.C. § 1132(a)(3), if the fiduciary has not identified a particular fund that is in the participant's possession and control at the time the fiduciary asserts its claim.

This week’s argument audio

By on Feb 27, 2015 at 9:13 pm

Oyez has posted audio recordings and transcripts of this week’s arguments.
The Court heard arguments this week in:

Posted in Everything Else

The Court has announced that it will be posting the merits briefs in the same-sex marriage casesObergfell v. Hodges, Tanco v. Haslam, DeBoer v. Snyder, and Bourke v. Beshear. The petitioners’ opening briefs were due at 2 p.m. today and will be available on the Court’s homepage once they have been officially filed.

Posted in Merits Cases

At 10 a.m. Monday, the Supreme Court will hear one hour of oral argument on the power of voters to take away from state legislatures the task of drawing new election district maps.  In Arizona State Legislature v. Arizona Independent Redistricting Commission, the lawmakers will be represented by Paul D. Clement of the Washington, D.C., law firm of Bancroft PLLC, with thirty minutes of time.  Dividing time on the other side will be Eric J. Feigin, an assistant to the U.S. Solicitor General, representing the federal government as an amicus supporting the redistricting commission, and Seth P. Waxman of the Washington, D.C., office of Wilmer Cutler Pickering Hale & Dorr, speaking for the commission.  Feigin will have ten minutes of time and Waxman, twenty.


From time to time, at least since 1898, the people in America’s states have decided to take government into their own hands, withdrawing it from elected politicians when the voters think they have done the job badly, or not at all.  “Direct democracy” has cycles of popularity, and may be in a new one now, as political polarization spreads worry that elected lawmakers think party first and public good second.  The Supreme Court looks into such a reclaiming of people power next week.

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Scholars are now analyzing Supreme Court opinions for their style as well as their substance.    Keith Carlson (a computer scientist), Michael A. Livermore (a law professor), and Daniel Rockmore (a mathematician) have just posted on SSRN a quantitative analysis of the writing style of all Supreme Court opinions between 1791 and 2008. Their study provides some interesting data for avid SCOTUS watchers:  They ranked each Justice by the “friendliness” of their opinions, noted changes in the complexity of Court’s use of language, and found evidence to suggest that the Justices are relying more heavily on law clerks to draft their opinions.

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Whether deservedly or not, an opinion by Ninth Circuit Judge Stephen Reinhardt granting habeas relief to a state prisoner notwithstanding the deferential approach mandated by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) is often fodder for terse – if not summary – reversals by the Supreme Court. But Davis v. Ayala, which is scheduled for oral argument before the Justices next Tuesday, comes to the Court with a twist of the Justices’ own making: Rather than simply granting the single, AEDPA-based question presented by California’s petition for certiorari, the Justices added a second question to the case – one that, properly understood, may well signal the Supreme Court’s inclination to dig into some of the merits of respondent Hector Ayala’s habeas claim, and not just provide another reprimand to the Ninth Circuit for a lack of fealty to AEDPA. And although California may well prevail on those merits, the potential significance of the Justices even reaching the substance of Ayala’s claims could yield the most significant habeas decision of the current Term. Continue reading »


Relist Watch

By on Feb 27, 2015 at 9:15 am

John Elwood reviews Monday’s relisted cases.

It has been a rough month since our last installment. Much of the country, from the Dakotas to Dallas, has seen record low temperatures, causing pipes to burst, and creating icy roads and massive pile-ups. Boston has endured more snowfall than at any time since wooly mammoths roamed the area. On several occasions, the D.C. area received as much as three-quarters of a centimeter of snow, causing even less to get done than usual. But on the other hand, we made it almost all the way through February without Relist Watch, so things have been pretty good overall. Continue reading »


Friday round-up

By on Feb 27, 2015 at 6:22 am

All eyes are on next week’s oral arguments in King v. Burwell, the challenge to the availability of tax subsidies for individuals who purchase their health insurance on a marketplace created by the federal government.  I previewed the case earlier this week in Plain English; other coverage and commentary come from David Savage of the Los Angeles Times (registration may be required), Julie Appleby of Kaiser Health News (via, Paul Barrett of Bloomberg, Elizabeth Wydra in an op-ed for The Washington Post, Joel Ario, Michael Kolber, and Deborah Bachrach at The Commonwealth Fund Blog, David Nather and Jennifer Haberkorn of Politico Pro, Sarah Kliff of Vox, Larry Levitt and Gary Claxton at the Kaiser Family Foundation, Eric Segall at ACSblog, Jonathan Keim at the National Review Online’s Bench Memos, and Douglas McSwain at ACSblog. Continue reading »

Posted in Round-up

Petition of the day

By on Feb 26, 2015 at 10:14 pm

The petition of the day is:


Issue: (1) Whether “primarily and unconditionally liable” spousal guarantors are unambiguously excluded from being Equal Credit Opportunity Act (ECOA) “applicants” because they are not integrally part of “any aspect of a credit transaction”; and (2) whether the Federal Reserve Board has authority under the ECOA to include by regulation spousal guarantors as “applicants” to further the purposes of eliminating discrimination against married women.

It looked bleak for petitioner Baker Botts from the earliest moments of the argument yesterday in Baker Botts L.L.P. v. ASARCO LLC. The issue in the case is whether the fees that a law firm (Baker Botts) spends defending a fee application in bankruptcy can be compensated out of the estate, and the Justices who showed much interest in that question seemed hesitant (at best) to allow compensation.

For almost the entire time Aaron Streett was at the lectern (for Baker Botts), he was peppered with questions from the Chief Justice and Justices Antonin Scalia and Sonia Sotomayor. Justice Scalia’s comments suggested that he was sympathetic to the argument of ASARCO (the party opposing Baker Botts’s fee application) that the statute permits compensation for fees only if the services help the estate. Distinguishing between the costs of preparing the fee application (which plainly are compensable) and the costs of litigation defending the application (the issue here), Justice Scalia commented: “[W]hen you prepare [the fee application] you’re serving the trustee – you’re serving his needs. But if he’s disallowing it, you’re, the contrary, acting against the trustee’s interest.” Continue reading »

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