This edition of "Petitions to watch" features cases up for consideration at the Justices' December 3 conference.  These are petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues.

PLIVA, Inc. v. Mensing (Granted )

Docket: 09-993
Issue(s): Whether the Eighth Circuit abrogated the Hatch-Waxman Amendments by allowing state tort liability for failure to warn in direct contravention of the Act’s requirement that a generic drug’s labeling be the same as the labeling approved by the Food and Drug Administration for the listed (or branded) drug.

Certiorari stage documents:

CVSG Information:

Actavis Elizabeth, L.L.C. v. Mensing (Granted )

Docket: 09-1039
Issue(s): Whether the Eighth Circuit abrogated the Hatch-Waxman Amendments by allowing state tort liability for failure to warn in direct contravention of the Act’s requirement that a generic drug’s labeling be the same as the labeling approved by the Food and Drug Administration for the listed (or branded) drug.

Certiorari stage documents:

CVSG Information:

American Electric Power Co., Inc. v. Connecticut (Granted )

Docket: 10-174
Issue(s): (1) Whether states and private parties may seek emissions caps on utilities for their alleged contribution to global climate change; (2) whether a cause of action to cap carbon dioxide emissions can be implied under federal common law; and (3) whether claims seeking to cap carbon dioxide emissions based on a court's weighing of the potential risks of climate change against the socioeconomic utility of defendants' conduct would be governed by “judicially discoverable and manageable standards” or could be resolved without “initial policy determination[s] of a kind clearly for nonjudicial discretion.” (Sotomayor, J., recused.)

Certiorari stage documents:

Ryan v. Schad

Docket: 10-305
Issue(s): (1) Whether, by awarding a defendant an evidentiary hearing on diligence and a simultaneous hearing on the merits, despite his lack of diligence, the Ninth Circuit's opinion conflicts with Court precedent and the Anti-Terrorism and Effective Death Penalty Act (AEDPA); and (2) whether the Ninth Circuit's opinion conflicts with Court precedent and AEDPA, by remanding the case for an evidentiary hearing without analyzing whether a colorable ineffective assistance of counsel claim was presented or considering the claim on the merits, when the district court considered the claim in light of the new evidence the defendant presented and concluded it showed neither deficient performance nor prejudice.

Certiorari stage documents:

Talk America Inc. v. Michigan Bell Telephone Co. (Granted )

Docket: 10-313
Issue(s): Whether the a public service commission was barred from requiring incumbent local exchange carriers (“ILECs”) to offer their competitors telecommunications facilities at cost-based rates under § 251(c)(2) of the Telecommunications Act of 1996 as a result of a Federal Communications Commission rule eliminating ILECs' obligation to provide similar facilities under § 251(c)(3) when they are used by competitors for a different statutory purpose. (Kagan, J., recused).

Certiorari stage documents:

Isiogu v. Michigan Bell Telephone Co. (Granted )

Docket: 10-329
Issue(s): (1) Whether the Telecommunications Act of 1996 and the Federal Communications Commission's Triennial Review Remand Order permit incumbent local telephone companies to charge competing telephone companies competitive rates for entrance facilities used for interconnection; and (2) whether the lower court provided the appropriate level of deference to the FCC's interpretation of its regulations. (Kagan, J., recused).

Certiorari stage documents:

Dobson-Davis v. Lunbery

Docket: 10-443
Issue(s): Under 28 U.S.C. § 2254(d), was a state court's exclusion of proffered hearsay evidence of alleged third-party culpability an “unreasonable application” of any constitutional rule “clearly established” by Supreme Court precedent when the evidence did not show that anyone else had confessed to the crime and the state court had excluded the evidence after evaluating its reliability?

Certiorari stage documents:

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The following petitions have been re-listed for the conference of December 3.  If any other paid petitions are re-distributed for this conference, we will add them below as soon as their re-distribution is noted on the docket.

Beer v. United States

Docket: 09-1395
Issue(s): Whether the Compensation Clause of Article III prevents Congress from withholding the future judicial salary adjustments established by the Ethics Reform Act of 1989.

Certiorari stage documents:

Alderman v. United States

Docket: 09-1555
Issue(s): Whether Scarborough v. United States (1977) recognizes a distinct Commerce Clause authority, beyond the three categories recognized in United States v. Lopez (1995), United States v. Morrison (2000), and Gonzales v. Raich (2005), such that a federal statute which “cannot be justified as a regulation of the channels of commerce, as a protection of the instrumentalities of commerce, or as a regulation of intrastate activity that substantially affects interstate commerce,” may be sustained based on a “minimal nexus” between the activity regulated and interstate commerce.

Certiorari stage documents:

Allen v. Lawhorn

Docket: 10-24
Issue(s): Whether a state court’s determination that trial counsel’s waiver of a penalty-phase closing argument did not prejudice the defendant is “contrary to” Supreme Court precedent.

Certiorari stage documents:

Webster v. United States

Docket: 10-150
Issue(s): Whether the Supreme Court can review a decision by a court of appeals that it lacks jurisdiction to review a federal prisoner’s motion based on newly discovered evidence that the prisoner is mentally retarded and therefore constitutionally ineligible for execution, even if that evidence does not negate the prisoner’s guilt; whether, if AEDPA precludes a successive habeas petition in such a scenario, it is unconstitutional.

Certiorari stage documents:

Posted in Cases in the Pipeline

Recommended Citation: Christa Culver, Petitions to watch | Conference of 12.03.10, SCOTUSblog (Dec. 1, 2010, 8:54 PM), http://www.scotusblog.com/2010/12/petitions-to-watch-conference-of-12-03-10/