Editor's Note :

Editor's Note :

We expect additional orders from the January 19 conference on Monday at 9:30 a.m.

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Steven Colloton, who just turned 54 on January 9, is a judge on the U.S. Court of Appeals for the 8th Circuit. Colloton graduated from Princeton University and Yale Law School before clerking for Judge Laurence Silberman on the U. S. Court of Appeals for the District of Columbia Circuit and then Chief Justice William Rehnquist on the Supreme Court. He began his practice in the Office of Legal Counsel in the U.S. Department of Justice, and then became an assistant U. S. Attorney in his home state of Iowa, a position he held for approximately eight years. After a short stint in private practice, Colloton returned to government service when President George W. Bush named him U.S. Attorney for the Southern District of Iowa in 2000. In 2003, Bush nominated Colloton to join the 8th Circuit. His confirmation to that position was uneventful: Senator Jeff Sessions tossed Colloton a few softball questions before announcing that he was highly qualified; he was confirmed by a vote of 94-1 on September 4, 2003.

In his 13-plus years of service as a federal judge, Colloton has been prolific; the 8th Circuit’s website lists him as the author of 615 different majority opinions. Even when he does not write the majority opinion, he often reveals his thinking in concurrences and dissents. We found more than 120 cases relating to controversial subjects in which Colloton either wrote or joined an opinion.

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The oral argument yesterday morning in Expressions Hair Design v. Schneiderman brought the justices face to face with the battle between merchants and credit-card networks over the “interchange” fees that merchants pay when they accept cards in retail transactions. The dispute that got the fees before the justices involves a New York statute that says that “[n]o seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check, or similar means.” The petitioner, Expressions Hair Design (leader of the group of merchants challenging the provision), argues that the statute violates the First Amendment because it limits a merchant’s right to describe the extra costs imposed on purchasers using credit cards as “surcharges.”

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In its conference of January 13, 2017, the court will consider petitions involving issues such as whether a criminal defendant charged with an offense punishable by incarceration is denied due process when he is tried by a non-lawyer judge and when the defendant has no opportunity for a de novo trial before a judge who is a lawyer; whether the collective-bargaining provisions of the National Labor Relations Act prohibit the enforcement under the Federal Arbitration Act of an agreement requiring an employee to arbitrate claims against an employer on an individual, rather than collective, basis; and whether a naturalized American citizen can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement.

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Wednesday round-up

By on Jan 11, 2017 at 7:25 am

Today the court will hear oral argument in Endrew F. v. Douglas County School District, in which the justices will consider what level of educational benefits students with disabilities must receive. Amy Howe previewed the case for this blog. Dara Brown and Jaeeun Shin at Cornell’s Legal Information Institute also provide a preview. Commentary comes from Rick Hills at PrawfsBlawg, who argues that inviting “litigation over an unworkably vague standard,” as he contends the petitioners are doing in this case, “can only exacerbate the class bias of a statutory scheme already notorious for favoring wealthier and litigation-savvy parents through its litigation-oriented focus,” and that “the statutory standard offered by the petitioners, although calling for equal educational opportunity, may actually make educational opportunity more unequal.”

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Locomotively questionable train analogies and a bench skeptical of the petitioner’s position marked Tuesday’s argument in Goodyear Tire & Rubber Co. v. Haeger, in which the court considered the validity of a $2.7-million award of attorney’s fees against Goodyear for its bad-faith litigation conduct in failing to produce certain documents relating to a defective tire.

Arguing for Goodyear, Pierre Bergeron argued that sanctions require a showing of “direct causation,” which he treated as synonymous with a “but-for” standard. Under this standard, however phrased, fees are available for excess or incremental costs incurred because of steps taken by the plaintiff that would not have been taken without the misconduct. In this case, that includes the costs to the Haegers from Goodyear’s non-disclosure of a “Heat Rise” test showing that the tire reached temperatures above 200 degrees at highway speeds.

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Petition of the day

By on Jan 10, 2017 at 11:28 pm

The petition of the day is:

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Issue: Whether the Senate Select Committee on Intelligence’s investigative report concerning the Central Intelligence Agency’s former program of detention, torture, and abuse of detainees became an “agency record,” subject to the Freedom of Information Act, when the Senate Committee transmitted it to several executive agencies with instructions for its wide dissemination and use.

Just a little over a month ago, the Supreme Court heard oral argument in a challenge to two North Carolina congressional districts, one of which a lower court had described as a “textbook example of racial gerrymandering.” One of the lasting impressions from that oral argument (as well as the Virginia redistricting case that was argued on the same day) was that the justices seemed to be tired of redistricting cases. But today the justices got involved (at least temporarily) in yet another redistricting case, once again from North Carolina, as they agreed to put on hold a lower court’s order that would have required the state to draw new maps and hold special elections this year to redress what the lower court found to be racial gerrymandering.

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Update at 12:19 p.m., January 11: This post has been expanded to include discussion of Alabama Democratic Conference v. Alabama.

Judge William H. Pryor Jr. of the U.S. Court of Appeals for the 11th Circuit is widely considered, along with Judge Diane Sykes, to be the front-runner to replace the late Justice Antonin Scalia. President-elect Donald Trump mentioned both judges by name during a primary debate shortly after Scalia’s death, and both have the conservative bona fides necessary to allay concerns about, as Pryor himself has put it, adding “more Souters” to the court.

Pryor, 54, earned his B.A. from Northeast Louisiana University in 1984 and his J.D. from Tulane University Law School 1987. Pryor clerked for Judge John Minor Wisdom on the U.S. Court of Appeals for the 5th Circuit and then worked as a private attorney until 1995. He served for two years as deputy attorney general of Alabama before becoming attorney general in 1997. As attorney general, he became known for his removal of Alabama Chief Justice Roy Moore for Moore’s refusal to follow a federal court order to remove a Ten Commandments monument from the state Supreme Court building.

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Argument transcripts

By on Jan 10, 2017 at 2:37 pm

The transcript in Expressions Hair Design v. Schneiderman is here; the transcript in Goodyear Tire & Rubber Co. v. Haeger is here.

Posted in Merits Cases
 
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Next Tuesday’s argument in Midland Funding v. Johnson brings the justices to the sordid world of consumer debt collection. In that world, a small group of relatively large “debt buyers” have come to amass portfolios that include the past-due obligations of millions of consumers, representing billions of dollars of unpaid obligations. The problem comes from the reality that a large share of that debt is not legally collectible because the statute of limitations (typically six years) has expired. The debt has value (at least to the extent of several cents on the dollar) because of the possibility that the debt buyer ultimately will persuade the consumer to make some payment on the obligation even though the opportunity for legal enforcement has passed.

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