This is a catch-all group of civil cases the Court is hearing this Term.  There are important cases to the business community, such as the Bilski patent case.  The Court also has an unusually high number of cases regarding the processes by which the federal courts operate.

Read the rest of this entry »

Roll Call (subscription only) has an editorial by Simon Lazarus in which he argues that Congress is pushing back against recent Court decisions that encroach on Congress’s domain.  Lazarus cites four examples of legislation Congress introduced to reverse the Court’s decisions and a fiery reproach of the Court’s conservatives from Senator John McCain.

On the heels of yesterday’s news that the victorious firefighters in Ricci v. DeStefano are suing in federal district court for promotions based on the test upheld by the Court in June, Connecticut Employment Law Blog reports that black firefighters are trying to intervene in the case.  Concurring Opinions provides an extensive explanation of both the disparate impact arguments at play in the new firefighter case, Briscoe v. City of New Haven, and how those arguments differ from those made in Ricci.

Read the rest of this entry »

On Sunday, L. Gordon Crovitz had an op-ed about Bilski v. Kappos in the The Wall Street Journal.

The Newark Star-Ledger’s editorial board is calling for eminent domain reform in New Jersey, citing Kelo v. New London as the main reason for reform.

The New York Times has two opinion pieces on last week’s oral arguments in Graham v. Florida and Sullivan v. Florida.

The Los Angeles Times has a piece on the slow pace of confirmations for President Obama’s judicial nominations.

Chicago Public Radio has a short podcast and piece on former Illinois Governor Rod Blagojevich’s attempts to delay his corruption trial. Next month the Supreme Court will hear arguments in a challenge to the “honest services fraud statute,” which Blagojevich has also been charged with violating. Blagojevich’s lawyers are asking for a delay pending the Court decision.

Finally, Jess Bravin of The Wall Street Journal reports that Justice Sonia Sotomayor will not be posing for Annie Leibowitz and Vogue because of her busy schedule.

The Court heard oral argument yesterday in Hertz Corporation v. Friend, which considers the standard to be used to determine a corporation’s citizenship for the purposes of diversity jurisdiction.  At the National Law Journal, Tony Mauro reports that most of the justices seemed to favor some version of a standard that would focus on where a corporation has its headquarters, although some justices expressed concern that large companies might abuse the standard by strategically calculating where to locate their headquarters.

At the BLT, Marcia Coyle describes Justice Alito’s separate opinion concurring in the Court’s summary disposition of Bobby v. Van Hook, which reversed the lower court’s relief granted to a capital defendant because it relied on the guidelines of the American Bar Association to decide the definition of adequate counsel, as “curious.”  Justice Alito criticized the ABA as “’a private group with limited membership’ and added that its views do not necessarily reflect the views of the bar as a whole.”

Monday’s oral arguments in Bilski, Graham, and Sullivan remain in the limelight.  Coverage appears below the jump.

Read the rest of this entry »

NPR and the Washington Post both have extensive coverage of yesterday’s arguments in Graham and Sullivan cases.  The WSJ Law Blog predicts that the Court will eventually decide on a compromise that would avoid establishing a categorical rule and would instead allow judges sentencing juveniles to consider the age of a defendant and the nature of his crime; the Chief Justice proposed such a system in what the author characterizes as an effort to appeal to Justice Kennedy’s swing vote. Dahlia Lithwick at Slate summarizes the arguments made in both cases (with a Sesame Street touch) and concludes only that nothing has yet been concluded.

Read the rest of this entry »

The transcripts for oral argument are here for Graham v. Sullivan, here for Sullivan v. Florida, and here for Bilski v. Kappos.

Analysis

It took less than two minutes Monday for the high-stakes patent case in the Supreme Court to descend to the level of questioning whether “Lorenzo Jones” could get a patent on one of his hare-brained inventions, if Bernard Bilski and Rand Warsaw could get one on their theory about managing business risk.  “Jones,” an old-time radio figure who thought his creations in a garage would bring him fame and fortune, made an appearance in the first question, by Justice Antonin Scalia.

Scalia also suggested the seeming absurdity of a patent for Dale Carnegie’s influential 1936 book, How to Win Friends and Influence People.  But it was the “Lorenzo Jones” comment that set the tone for the entire argument in Bilski, et al., v. Kappos (08-964).  It would take a most inventive analyst to find a way in the argument for the risk-management idea under review to fit into the Patent Act’s coverage.  The idea had no defenders whatsoever on the bench

The largest question left unanswered when the one-hour argument was over was whether the Court would go forward and issue a major new ruling interpreting patent law, when the practical result here seemed so evident.  Lawyers and judges have invested heavy resources in the Bilski case, and it does raise a fundamental question that may well need answering. But, when there may well be no formulation of patent law that would salvage the Bilski-Warsaw creation, why bother?

Read the rest of this entry »

With oral arguments today in Graham v. Florida, Sullivan v. Florida, and Bilski v. Kappos, juvenile justice and patent issues dominated SCOTUS news over the weekend.

On Sunday, The New York Times had commentary from two lawyers who filed amicus briefs in the Graham and Sullivan cases:  Marc Mauer, executive director of The Sentencing Project and Kent Scheidegger, legal director of the Criminal Justice Legal Foundation.

In an op-ed piece in today’s Boston Globe, Dr. Paul Farmer points out that the U.S. and Somalia are the only countries in the world that haven’t ratified Article 37 of the UN Convention on the Rights of the Child, which bans participants from sentencing children to life in prison.

Read the rest of this entry »

This morning at 10 a.m. the Court will release orders from its conference last Friday.  Immediately afterward, it will hear oral arguments in three cases:

10 a.m. – In Graham v. Florida (08-7412), the Court will consider the constitutionality of a life prison sentence for a juvenile convicted of a non-homicide crime.  Lyle provided an extensive background and analysis of the case in this preview last week on SCOTUSblog.

11 a.m. - Sullivan v. Florida (08-7621) raises the same basic issue as Graham v. Florida, though the Court has not consolidated the cases for decision.  Lyle’s preview, linked above, covers both Graham and Sullivan.

1 p.m. - The Court will review which modern inventions are eligible for patents in Bilski v. Kappos (08-964).  Last week Lyle discussed the issues in the case on SCOTUSblog.

This week the Court will hear oral argument in the following cases:

Mon., Nov. 8:

Graham v. Florida (08-7412)— constitutionality of life prison sentence for juvenile convicted of a non-homicide crime
Sullivan v. Florida (08-7621) — same basic issue as in Graham v. Florida; the Court, however, has not consolidated the cases for hearing or decision
Bilski v. Kappos (08-964) — definition of modern inventions eligible for patents

Tues., Nov. 9:

Kucana v. Holder (08-911) — judicial review of reopening of deportation or asylum case
Hertz Corporation v. Friend (08-1107) — standard for determining company’s place of business for diversity jurisdiction

Wed., Nov. 10: Legal holiday - no arguments

On Friday, the Justices will hold a private conference, orders from which are expected to be released on Monday.

At 1 p.m. Monday, the Supreme Court will hear one hour of oral argument in Bilski, et al., v. Kappos (08-964).  Arguing for two inventors will be J. Michael Jakes of Finnegan, Henderson, Farabow, Garrett & Dunner in Washington, and arguing for David J. Kappos, the head of the federal government’s Patent and Trademark Office, will be Deputy Solicitior General Malcolm L. Stewart.  The briefs and other filings in the case are available at this link on ScotusWiki.

Argument Preview

In 1981, the Supreme Court last decided a case spelling out the kinds of inventions that are eligible for patent rights under federal law.   Now, in the wake of major changes in the world of commerce, the Court will try to provide a modernized definition of patent eligibility.   Some experts say the outcome may affect the legality of more than 130,000 patents that already exist, and the legal fate of untold future inventions, especially in digital commerce. Read the rest of this entry »

On November 19, a panel of experts at American University’s Washington College of Law will address the potential consequences for patent law of Bilski v. Kappos, which will be argued on November 9. All of the speakers are counsel to either parties or amici in the case.  The program will be broadcast live online; details to attend on-site are available in the attached flyer.

The panelists include:

• Raymond Chen, Solicitor, U.S. Patent and Trademark Office, Counsel for Respondent
• J. Michael Jakes, Finnegan Henderson, Counsel of Record for Petitioners
• Nancy Linck, Rothwell Figg, Counsel for Amicus BIO
• Randolph Moss, WilmerHale, Counsel for Bank of America et al.

The moderators are:

• Thomas Goldstein, Akin Gump, Counsel for Amicus American Bar Association
• Prof. Joshua Sarnoff, Washington College of Law, American University, Counsel for Amici Eleven Law Professors and the AARP

As the Justices will hold their first private conference this Tuesday, the Supreme Court press corps turns its focus to the upcoming docket. Tony Mauro writes in the National Law Journal on the dominance of business cases in OT09 : more than half of the 45 docketed cases address business issues. His article focuses specifically on how former intellectual property lawyer and current Associate Justice Sonia Sotomayor may vote in cases ranging from patents (Bilski), antitrust (American Needle), or mutual funds (Jones). BusinessWeek also has a preview of OT09 business cases.

Read the rest of this entry »

The October issue of the ABA Journal Magazine is out and brimming with commentary on the Court.  The Magazine likens the modern confirmation process of Court nominees to a “kabuki dance,” because Senators ask useless but inflammatory questions for the cameras and the candidates are too tight-lipped to reveal a good sense of their judicial philosophy.  The article traces this trend back to Justice Ginsburg’s confirmation, which occurred soon after the confirmation hearings of Clarence Thomas and Robert Bork, whose character and conservative judicial philosophies were viciously attacked.  Four authors propose reforms to the process: David Stras suggests that nominees be required to analyze five previous Court decisions, Stephen Carter wants to focus on nominees’ professional qualifications rather than disqualifications, Seth Rosenthal proposes a courtroom setup in which litigators ask questions, and Richard Davis is ready to dispense with hearings altogether for elections.

Read the rest of this entry »

This week, we’re trying out a new daily feature on SCOTUSBlog that summarizes coverage of and commentary about the Supreme Court. Each morning a different contributor will post links and brief synopsis to supplement our round-up sidebar: I’ll be on Monday; Anna Christensen of Howe & Russell on Tuesday; Jay Willis on Wednesday; Erin Miller on Thursday; and Adam Schlossman of Akin Gump on Friday. Please send any feedback to scotusblog.feedback [at] gmail [dot] com.

Citizens United still dominates Court watchers’ commentary. Jeffrey Rosen argues in a NYT  Week in Review op-ed, “The Trial of John Roberts” that Citizens United will be a defining case for Chief Justice John G. Roberts, as Miranda was for Chief Justice Earl Warren in 1966. If the Court rules broadly and reverses its precedent in Austin v. Michigan by an ideologically divided majority, Roberts risks developing the image of a polarizing jurist. In Newsweek,  Howard Fineman is similarly “suspicious” of the Roberts Court’s pro-business activism. He calls for the Court to allow corporate and union funding of political speech, but to set spending limits.

Read the rest of this entry »