Argument transcript and audio

By on Apr 25, 2018 at 1:22 pm

The Supreme Court has posted the audio and transcript of today’s argument in Trump v. Hawaii.

Posted in Merits Cases

The second of yesterday’s two patent decisions was SAS Institute v. Iancu. As I explained in my post about Oil States Energy Services v. Greene’s Energy Group, both cases involve the process for “inter partes review” that Congress added to the Patent Act in 2012, a process under which a competitor (or, for that matter, anyone at all) can ask the director of the Patent and Trademark Office to reconsider a previously issued patent. If the director agrees to reconsider the patent, the Patent Trial and Appeal Board then conducts a trial-like proceeding adjudicating the validity of the patent. The Supreme Court held yesterday in Oil States that Article III permits Congress to allocate that responsibility to an executive agency rather than an Article III court. This decision, though, invalidates a major part of the administrative rules under which the board has been conducting those reviews.

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Wednesday round-up

By on Apr 25, 2018 at 7:12 am

This morning the Supreme Court ends its last session of the term with a bang when it hears argument in Trump v. Hawaii, a challenge to the latest version of the Trump administration’s entry ban. Amy Howe had this blog’s preview, which was first published at Howe on the Court. Madelaine Horn and Conley Wouters preview the case for Cornell Law School’s Legal Information Institute. Subscript has a graphic explainer. Lyle Denniston takes a close look at the case at Constitution Daily. For The Washington Post, Robert Barnes reports that the justices will consider “whether President Trump’s travel ban is a necessary step to protect the country from terrorism or an illegal and unconstitutional fulfillment of campaign promises to ban Muslim immigrants.” Additional coverage comes from Nina Totenberg at NPR, Steven Mazie at The Economist’s Espresso blog, Richard Wolf at USA Today, and Bill Mears at Fox News, who reports that “[t]he case will be the first significant legal test so far of the president’s administration and could lead to a precedent-setting ruling on the limits of executive power, especially within the immigration context.” At Vox, Dara Lind breaks down the history of “the travel ban saga.” An episode of the Vox podcast Today, Explained focuses on the case. Commentary comes from the editorial board of the Boston Globe and Ian Millhiser at ThinkProgress.

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Posted in Round-up

When a case comes to the Supreme Court, the justices are usually interpreting U.S. laws – either the U.S. Constitution or a federal statute. But in today’s global economy, resolving cases brought under U.S. law in U.S. courts can also require an understanding of foreign laws. And that’s not always easy, especially when the foreign laws and legal systems at issue are different from our own. In these situations, should U.S. courts take a foreign government’s word about how a foreign law works? The justices considered that question today, in a case that could have implications not only for the enforcement of U.S. antitrust laws, but also for U.S. relations with China. After an hour of oral argument, the court seemed likely to hold that the rule adopted by the lower court, which would generally require deference to a foreign government’s interpretation of foreign law, is too rigid – even if the justices weren’t sure precisely what the contours of the new rule should be.

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The 2010 census brought good news for Texas. In the 10 years since the last census, it had gained nearly four million residents, which translated into four more seats in the U.S. House of Representatives. Those changes would require the state’s Republican-controlled legislature to draw new maps for both Congress and the statehouse, which it did in 2011. Since then, the state has been embroiled in litigation over its redistricting efforts, which continued at the Supreme Court this morning. But after nearly 80 minutes of oral argument, it wasn’t entirely clear where the justices were headed, or whether they would reach the merits of the case at all.

Today’s oral argument was the dispute’s second trip to the Supreme Court. In 2012, the justices threw out maps that a three-judge district court had drawn and ordered the lower court to draw new maps for the 2012 elections. In 2013, the Texas legislature adopted those court-drawn new maps, but last year the district court ruled that parts of the new maps violated federal voting laws and the Constitution because they perpetuated the discrimination that the district court had found in the 2011 maps.

Scott A. Keller, solicitor general of Texas (Art Lien)

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Petitions of the day

By on Apr 24, 2018 at 6:00 pm

The petitions of the day are:


Issues: (1) Whether the Seventh Amendment requires a claim under Section 12(a)(2) of the Securities Act to be tried by a jury when petitioners did not sell the relevant securities and never possessed any proceeds from those sales; and (2) whether the Housing and Economic Recovery Act of 2008, which extends “the applicable statute of limitations” for claims brought by the Federal Housing Finance Agency, displaces federal and state statutes of repose as well as statutes of limitations.


Issues: (1) Whether the Housing and Economic Recovery Act of 2008, which extends “the applicable statute of limitations” for claims brought by the Federal Housing Finance Agency, displaces federal and state statutes of repose as well as statutes of limitations; and (2) whether the Seventh Amendment requires a claim under Section 12(a)(2) of the Securities Act to be tried to a jury.

Nearly seven years ago, the Supreme Court agreed to decide whether corporations can be sued under the Alien Tort Statute, an 18th-century law that allows foreigners to bring lawsuits in U.S. courts for serious violations of international human-rights laws. The justices ultimately did not resolve the corporate liability question in that case, ruling instead that claims cannot normally be brought under the ATS based on conduct that occurred in another country. But today they did settle the issue, holding by a vote of 5-4 that foreign corporations may not be sued under the ATS. The decision will almost certainly put a halt to efforts, often controversial, by foreign plaintiffs to hold foreign corporations responsible in U.S. courts for human rights violations abroad.

The case decided today, Jesner v. Arab Bank, was filed in the United States by victims of terrorist attacks that occurred between 1995 and 2005 in Israel, the West Bank and Gaza. They allege that the bank kept accounts for known terrorists, accepted donations that it knew would be used to fund terrorism and distributed millions of dollars to families of suicide bombers. The victims relied on the Alien Tort Statute, a federal law that gives federal courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The U.S. Court of Appeals for the 2nd Circuit dismissed the victims’ case, holding that the ATS does not allow lawsuits against corporations, and today the Supreme Court affirmed.

Justice Kennedy with opinion in Jesner v. Arab Bank, PLC (Art Lien)

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This morning brought decisions in both of the patent cases argued in November, with the government prevailing on the constitutional question raised in Oil States Energy Services v. Greene’s Energy Group, but losing on the statutory question presented in SAS Institute v. Iancu. Both cases involve the process of inter partes review added to the Patent Act in 2012 as part of the Leahy-Smith America Invents Act. That process authorizes a petition for inter partes review by any competitor that believes that the Patent and Trademark Office erred in issuing a patent on an invention that already existed in prior art. If the PTO determines (in its sole discretion) that the petition has merit, it institutes a trial-like review process that can result, if successful, in amendment or invalidation of the patent, subject to review in the U. S. Court of Appeals for the Federal Circuit.

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Argument transcripts

By on Apr 24, 2018 at 2:44 pm

The Supreme Court has posted transcripts of today’s oral arguments:

Abbott v. Perez (case page at this link)

Animal Science Products Inc. v. Hebei Welcome Pharmaceutical Co. Ltd. (case page at this link)

Posted in Merits Cases

Pereira v. Sessions, which was argued yesterday morning, implicates two questions, one narrow and one broad. The narrow question is a basic one of statutory interpretation. Under the Immigration and Nationality Act, ten years of continuous physical presence, along with certain other factors, must be accrued before immigrants lacking two or more years of lawful residence, and otherwise removable, can qualify for a discretionary form of relief from removal known as “cancellation of removal.” The statute states that when the government issues a “notice to appear” for removal proceedings, the NTA stops the accrual of an immigrant’s ten years of “continuous physical presence.” The statutory question at issue is whether the NTA must comply with all of the requirements of a cross-referenced statutory provision in order to stop the clock on continuous physical presence. The broader question implicates Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., which requires courts to defer to reasonable agency interpretations of ambiguous statutes.

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