Editor's Note :

Editor's Note :

In previous years, the Court released orders the morning after the Court’s “Long Conference.” It has not done so this year. Beginning last Term, the Court consistently considered petitions at least two times before granting certiorari. To the extent that practice continues -- and there is no affirmative evidence the Court intends to drop it -- so we are again doubtful that certiorari will be granted in any cases today.

Two significant First Amendment cases that have been awaiting the Supreme Court’s reaction for a year are on the way to being settled, with the real prospect that former stars in big-time college football and basketball will get a share of a $60 million fund.  Of that, $40 million would be put up by the maker of video games about college sports, and $20 million by the National Collegiate Athletic Association — the group that makes policy for competition in collegiate athletics.

The proposed settlements, which will be circulated among collegians who previously played in the NCAA’s Division I (its “major league” for football and basketball competition), are due for a federal district court hearing next May on whether the deal is a fair one.  In the meantime, the two sides agreed to end attempts (see here and here) to get the Supreme Court to rule on a claimed clash between the First Amendment and the right under state law giving people of some renown a legal right to exploit financially their own fame (the so-called “right of publicity”).

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Wednesday round-up

By on Oct 1, 2014 at 8:12 am

The Court is scheduled to resume oral arguments in just a few days, and so previews of the upcoming Term and the cases on the Court’s docket continue.  Chantal Valery of Agence France-Presse looks at the Term as a whole, noting that the Court has “a slate of hot-button cases, including freedom of speech in the Facebook era and a likely reprise on gay marriage.”  And in Education Week (with graphic here), Mark Walsh surveys the Court’s education docket (or lack thereof), observing that “one would have to go back before the court’s landmark decision in Brown [v. Board of Education] to find a comparable five-year period in which the justices heard no school cases.”  In The Atlantic, Dawinder Sidhu looks ahead at next week’s argument in Holt v. Hobbs, in which an Arkansas inmate is arguing that a prison policy which prohibits him from growing a beard for religious reasons violates the Religious Land Use and Institutionalized Persons Act.  Sidhu argues that the case “will test whether the Roberts Court’s stance on religious freedom includes a minority faith, Islam, practiced by a disfavored member of our society: a prisoner. At stake are both the state of religious freedom in the country and the Court’s reputation.” Continue reading »

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Petition of the day

By on Sep 30, 2014 at 10:11 pm

The petition of the day is:

13-1491

Issue: Whether a witness may give opinion testimony based in part on specialized knowledge and in part on personal experience, including answering counterfactual hypothetical questions, without satisfying the reliability and disclosure requirements for expert testimony of Federal Rule of Evidence 702, Federal Rule of Criminal Procedure 16, and/or Federal Rule of Civil Procedure 26.

 
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Deepening the controversy over tax subsidies to help lower-income workers obtain health insurance, a federal trial judge in Oklahoma on Tuesday barred those credits for individuals who shop for coverage on marketplaces run by the federal government, not by a state.

That issue is already awaiting the Supreme Court’s attention, with the federal government due to file there on Friday a defense of the subsidies scheme that has so far helped nearly five million individuals to afford health coverage under the Affordable Care Act.  (That case is King v. Burwell.)

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Tuesday round-up

By on Sep 30, 2014 at 11:47 am

Yesterday the Justices met for the so-called “Long Conference,” at which they considered new petitions for certiorari for the first time since late June.  Once again, news coverage of the Court focuses on the cases slated for consideration at that conference, and in particular the seven petitions arising out of challenges to state bans on same-sex marriage.  Ben Winslow of Fox 13 News in Salt Lake City summarizes the story in Utah, where state officials have asked the Court to review a decision by the Tenth Circuit striking down that state’s ban.  In his Sidebar column for The New York Times, Adam Liptak discusses the same-sex marriage issue in the context of the Court’s tendency to release major opinions late in the Term; he observes that, although “[t]here are lots of open questions about the road the Supreme Court justices will take to a final decision about whether the Constitution guarantees a right to same-sex marriage,  . . . one thing seems clear: The answer will arrive next June.”  And at Slate, Susannah Pollvogt and Catherine Smith urge the Court to consider the “remarkably simple proposition” that, they say, has thus far not been considered by the lower courts:  “Bans against same-sex marriage are unconstitutional as a matter of law because they punish children in an effort to control the conduct of adults.”  Finally, at his Election Law Blog, Rick Hasen discusses the absence of any grants from yesterday’s Long Conference and the possible explanation therefor.

Yesterday’s order by a divided Court blocking early voting in Ohio also garnered headlines.  Lyle Denniston covered the order for this blog.  Other coverage and commentary come from Rick Hasen at his Election Law Blog; Hasen also discussed the Ohio case (among others) in a post on “the voting wars” at Slate. Continue reading »

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Petition of the day

By on Sep 29, 2014 at 10:12 pm

The petition of the day is:

14-29

Issue: (1) Whether, in a prosecution for insider trading under § 10(b) of the Securities Exchange Act, 15 U.S.C. § 78j(b), the relevant inside information must have been a “significant factor” in the defendant’s decision to buy or sell, or whether – as the court below held – mere “knowing possession” of inside information suffices for a criminal conviction; (2) whether, in a prosecution for insider trading under § 10(b) of the Securities Exchange Act, 15 U.S.C. § 78j(b), the “fiduciary duty” element must be proved under well-established principles of state law, or whether – as the court below held – courts may define and impose the applicable fiduciary duty as a matter of federal common law; and (3) whether exculpatory testimony given by a witness during a deposition in a closely related federal enforcement proceeding is admissible under Federal Rule of Evidence 804(b) in a subsequent criminal trial when the witness is unavailable, or whether – as the court below held – such testimony may be excluded merely because it was given in a civil rather than criminal proceeding.

 
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UPDATE 6:10 p.m.  Justice Elena Kagan turned down without comment a separate request by Ohio’s legislature for the same kind of order postponing some of the early voting options.  The legislature has been allowed into the controversy only as a “friend of the court,” not as a full party.  Kagan chose to act on that request without referring it to her colleagues.  Meanwhile, Ohio Secretary of State Jon Husted has issued this new directive on when early voting will be allowed.

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With just sixteen hours before polling stations were to open in Ohio, the Supreme Court on Monday afternoon blocked voters from beginning tomorrow to cast their ballots in this year’s general election.  By a vote of five to four, the Justices put on hold a federal judge’s order providing new opportunities for voting before election day, beyond what state leaders wanted.

The order will remain in effect until the Court acts on an appeal by state officials.  If that is denied, then the order lapses.  It is unclear when that scenario will unfold.  The state’s petition has not yet been filed formally.

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UPDATED 2:12 p.m.  The Court’s amended calendar for oral argument in October is here.

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The Supreme Court, apparently finding that little is left of a case that the Justices were to hear on opening day of the new Term next week, dismissed on Monday the case of Public Employees Retirement System v. IndyMac.   That action leaves intact a split among lower courts on the time limits for filing class-action lawsuits claiming false information in the offer or sale of securities.

Lawyers on all sides of the case had suggested, in new briefs last week, that the case could go forward in the Court because there remained claims against one of the underwriting firms sued in the case — Goldman Sachs & Co.  A proposed settlement deal for other claims, against the other underwriters, is now awaiting the reaction of a federal judge in New York City. Continue reading »

On October 8, in Warger v. Shauers, the Court will hear oral arguments on whether, in support of a motion for a new trial, a juror may testify about statements made during deliberations which show that another juror gave misleading answers to questions asked on voir dire.

At issue is the interpretation of Federal Rule Of Evidence 606(b), which generally prohibits testimony of jurors about statements made during deliberations when the testimony is offered in “an inquiry into the validity of a verdict or indictment.” The rule makes exceptions for testimony about “extraneous prejudicial information,” “outside influence,” and clerical mistakes made in entering verdicts. Thus, testimony about statements during deliberations that show a juror’s irrationality, preconceptions, or misunderstanding of the law is banned. Jury trial cannot be made perfect, and the rule’s drafters opted to protect jurors from embarrassment and preserve the stability of verdicts. Continue reading »

 
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