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.

In its conference of May 24, 2018, the court considered petitions involving issues such as whether the rule espoused in Steel Company v. Citizens for a Better Environment, which held that a federal court generally may not rule on the merits of a dispute without first determining that it has subject-matter jurisdiction over the matter, is limited to Article III jurisdictional disputes, as the U.S. Court of Appeals for the 1st Circuit and other circuits have held, or whether it applies to statutory as well as Article III jurisdictional disputes, as the U.S. Court of Appeals for the 11th Circuit and other circuits have held; whether Ohio’s mandatory transfer statute, which requires that certain children be prosecuted as adults and prohibits an individualized determination, violates the due process and equal protection clauses of the U.S. Constitution; and whether, when a criminal defendant has already been convicted of an offense in a state criminal proceeding, the United States may thereafter prosecute the defendant for the same offense without violating the Fifth Amendment’s prohibition on double jeopardy Continue reading »


SCOTUS Map: May 2018

By on May 25, 2018 at 11:25 am

Justice Ruth Bader Ginsburg is known as one of the Supreme Court’s speediest writers, a distinction that leaves her, perhaps, with ample time for speaking engagements, even during the hectic final months of the Supreme Court’s term.

Early this May, Ginsburg traveled to Buenos Aires for the 14th Biennial Conference of the International Association of Women Judges, where she participated in a two-hour conversation with 15 other female judges from across the globe, entitled “Building Bridges Between and Among Women Judges.”

The following day, Ginsburg was back in Washington, D.C., giving remarks at the Federal Judges Association’s Ninth Quadrennial Conference. According to Marcia Coyle of the National Law Journal (registration required), the justice spoke favorably of the new law-clerk hiring plan (which Justice Elena Kagan had also indicated during an April 30 appearance in Chicago that she would take into account).

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Relist Watch

By on May 25, 2018 at 9:41 am

John Elwood (finally) reviews Monday’s relists.

Monday’s order list was a striking illustration of how nice it is to have Washington on your side: Of the four relisted cases the Supreme Court agreed to review, the government (either as amicus or respondent) had told the court that review was warranted in three of them.

The court also denied review without comment in a knot of cases involving whether sentence enhancements imposed under the residual clause of the then-mandatory sentencing guidelines’ career offender provision were constitutionally infirm because the clause is similar to an Armed Career Criminal Act provision declared unconstitutionally vague in Johnson v. United States. So long Allen v. United States, 17-5684; farewell Gates v. United States, 17-6262; auf Wiedersehen, James v. United States, 17-6769; adieu, Robinson v. United States, 17-6877; smell ya later Lester v. United States, 17-1366. It’s curious when cases that have been relisted as many as ten times are denied review without even a short statement respecting denial. But perhaps, just as the most effective dissent from denial of cert is never seen (because the court just decides to go ahead and grant review), maybe someone wrote a killer concurrence. If this strikes you as maddeningly indeterminate, don’t worry: We’ll all know what happened in about another 70 years when the current justices’ papers are released.

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Friday round-up

By on May 25, 2018 at 7:15 am

At The Economist’s Democracy in America blog, Steven Mazie observes that Monday’s decision in Epic Systems v. Lewis, in which the court held that arbitration clauses in employment contracts that require employees to forgo class and collective actions are enforceable, “gives employers a powerful tool to shield themselves from time-consuming, costly litigation,” noting that “[n]ow that America’s highest court has blessed this practice, which already affects some 54% of non-unionised workers, companies are likely to include it in more employee contracts.” At ACSblog, Ruben Garcia argues that in “Epic Systems … and … Encino Motor Cars v. Navarro … last month … seem to signal the beginning of radical retrenchment of protective labor laws in ways that Congress never intended, using canons of construction that can be chosen at will to suit any particular outcomes.” Additional commentary comes from William Gould at Stanford Law School’s Legal Aggregate blog and Arthur Sapper at Ogletree Deakins. At The National Law Journal (subscription or registration required), Tony Mauro looks at what the court’s opinion tells us about its author Justice Neil Gorsuch’s writing style, observing that it “seems to have fewer rough edges of the kind that ruffled feathers in the past.”

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Posted in Round-up

Petitions of the day

By on May 24, 2018 at 8:00 pm

The petitions of the day are:


Issue: Whether foreign sovereign property held by a foreign financial intermediary in a foreign country may, under any circumstances, be subject to execution in United States courts.


Issue: Whether a foreign sovereign’s property outside of the United States is entitled to sovereign immunity.

Deepak Gupta is the founding principal of Gupta Wessler PLLC. He was counsel of record on an amicus brief for the American Association for Justice supporting the employees in Epic Systems Corp. v. Lewis.

The Court has abandoned all pretense of ascertaining congressional intent with respect to the Federal Arbitration Act, building instead, case by case, an edifice of its own creation.

No, those words don’t come from Justice Ruth Bader Ginsburg’s dissent this week in Epic Systems v. Lewis — though they’d fit right in. They were written more than two decades ago, by Justice Sandra Day O’Connor. Since then, the edifice O’Connor described has grown exponentially, casting its shadow over all Americans’ ability to band together to enforce the laws designed to protect them.

In AT&T Mobility v. Concepcion and American Express v. Italian Colors, the Supreme Court gave companies a green light to use arbitration clauses to cut off collective claims by both consumers and small businesses, under both state and federal law — even under antitrust laws designed to police the very market power that enables big companies to insert these clauses in the first place.

Epic Systems sweepingly extends this dangerous trend, blocking workers from banding together to redress the full range of workplace legal violations — including wage theft, sexual harassment and race and gender discrimination. It’s hard to overstate the impact. The main effect is not to channel cases to some private forum but to kill cases entirely, cutting off not only compensation and deterrence but public accountability and the development of the law itself. As Lina Khan and I wrote in the Yale Law & Policy Review, this represents a massive upward transfer of wealth. One judge (quoted in the New York Times’ Pulitzer-nominated series) called it “among the most profound shifts in our legal history.”

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Thursday round-up

By on May 24, 2018 at 7:11 am

For the Los Angeles Times, David Savage reports on Epic Systems v. Lewis, in which the court held on Monday that arbitration clauses in employment contracts that require employees to forgo class and collective actions are enforceable, noting that “[s]cholars who have looked into the 1925 [Federal Arbitration Act] find it remarkable that an obscure and narrowly focused measure has taken on such importance.” At Jost on Justice, Kenneth Jost observes that Justice Neil “Gorsuch’s vote marked the eighth time to cast a tie-breaking vote in a 5-4 decision,” and that Gorsuch “is likely to be the tie-breaker in a few more this term.”  Additional commentary comes from Orly Lobel at PrawfsBlawg, Damon Root at Reason’s Hit & Run blog, Mark Joseph Stern at Slate, Daniel Hemel, also at Slate, Ian Millhiser at ThinkProgress, and Noah Feldman in an op-ed for Bloomberg, who writes that “[s]een in terms of jurisprudence, the decision reflected a serious philosophical difference between the two wings of the court[:] The conservatives insisted on a literalist, original-intent reading of the relevant federal laws; the liberals focused on the laws’ purpose and the practical consequences of the decision.”

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Posted in Round-up

Petition of the day

By on May 23, 2018 at 8:11 pm

The petition of the day is:


Issues: (1) Whether the Supreme Court’s prior precedent applying the discretionary-function exception to the Federal Tort Claims Act to government employees acting on the operational level should be modified to accord with Justice Scalia’s concurring opinion in United States v. Gaubert; (2) whether the Supreme Court should resolve the circuit split regarding which party has the burden of proof under the discretionary-function exception to the Federal Tort Claims Act; and (3) whether Gaubert should be clarified to reaffirm that government policy, as applicable to the discretionary-function exception, may be established on a case-by-case basis and formed in partnership with a state government based on local conditions under that state’s statute, regulation or policy.


Williams v. Louisiana ended with both a bang and a whimper. Flagged as a “petition of the day” back in April, Williams’ petition sought to have the U.S. Supreme Court review the Louisiana courts’ decision to leave in place his conviction for first-degree murder.

Williams claimed, among other things, that in obtaining his conviction, prosecutors had violated their obligations under Brady v. Maryland to disclose exculpatory evidence to the defense. Although the prosecutors had provided the defense with summaries of the evidence (some of which were accurate, others not), they had not provided the evidence itself. The state courts, in rejecting Williams’ Brady claim, maintained that the undisclosed evidence would not have affected the outcome of Williams’ trial. The evidence included statements that Williams could not have committed the murder and that the state’s eyewitness probably did. In determining that the evidence would not have affected the outcome of Williams’ trial, the state courts refused to factor into consideration evidence that Williams was severely intellectually disabled. As his petition detailed, Williams, at the time of the crime, was an intellectually disabled 16-year-old child who “still sucked his thumb, urinated himself on an ordinary basis, and regularly ate dirt and paper” and “was hospitalized for extreme lead poisoning, institutionalized multiple times, and placed in special education.” Williams’ intellectual disability was potentially relevant, he maintained, because it undermined the force of his confession, which he gave after being arrested and questioned by police officers. After the confession, Williams told officers he was “ready to go home and lay down,” arguably underscoring a concern the Supreme Court itself had flagged almost a decade ago “that a person who is intellectually disabled carries a heightened risk of unwittingly confess[ing] to a crime that he did not commit.”

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Katherine V.W. Stone is Arjay and Frances Fearing Miller Distinguished Professor of Law at UCLA School of Law. She has written frequently about arbitration law, most recently in The Bold Ambition of Justice Scalia’s Arbitration Jurisprudence: Keeping Workers and Consumers Out of Court. She and other labor law professors joined an amicus brief in support of the employees in Epic Systems v. Lewis.

On May 21, in Epic Systems v. Lewis, the Supreme Court, by a 5-4-majority, held that an employer may lawfully require its employees to agree, as a condition of employment, to take all employment-related disputes to arbitration on an individual basis, and to waive their right to participate in a class action or class arbitration. In that case, the U.S. Court of Appeals for the 7th Circuit and the National Labor Relations Board had held, to the contrary, that to compel workers to forgo their right to litigate or arbitrate their statutory employment claims on a collective basis was unlawful because it contravened their right to engage in collective activity for mutual aid and protection under the National Labor Relations Act.

The decision was issued in three consolidated cases, all of which presented a similar fact pattern. In each one, a worker is presented with an arbitration clause that requires all employment disputes be submitted to arbitration on an individual basis. The worker is told that if he wants to continue in the job, he will be deemed to have assented to the clause. Subsequently the worker files a class action lawsuit on behalf of himself and other workers similarly situated, alleging that the employer has violated the federal minimum wage and hour law. The employer moves to dismiss the lawsuit on the ground that the worker is bound by the arbitration clause and therefore is precluded from bringing a class action in a judicial or arbitration tribunal.

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