Petition of the day

By on Oct 17, 2017 at 8:20 pm

The petition of the day is:

17-419

Issue: Whether the Supreme Court’s precedent and the doctrine of intergovernmental tax immunity bar states from exempting groups of state retirees from state income tax while discriminating against similarly situated federal retirees based on the source of their retirement income.

Justice Elena Kagan momentarily hedged her bets yesterday afternoon in front of an audience of law students at Chicago-Kent College of Law. But after struggling to find proper qualifiers, she didn’t hold back: “I don’t see how anyone could disagree with this: Thurgood Marshall was the greatest lawyer of the 20th century. No one did more to advance justice.” Kagan described Marshall as “an incredibly gifted trial lawyer,” a part of his work she called less well known than his appellate advocacy, most famously as counsel for the petitioners in Brown v. Board of Education, and his 24-year tenure as a justice on the Supreme Court.

Kagan, who clerked for Marshall, also had high praise for another former boss, Judge Abner Mikva of the U.S. Court of Appeals for the District of Columbia Circuit. Noting that Mikva also served in the House of Representatives and as White House counsel to President Bill Clinton, Kagan claimed Mikva “really got government,” sparking her own interest in government service.

Justice Kagan (Art Lien)

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Tuesday round-up

By on Oct 17, 2017 at 7:21 am

Yesterday the Supreme Court added four cases to its merits docket for the current term. Amy Howe has this blog’s coverage, which first appeared at Howe on the Court. The most high-profile grant was in United States v. Microsoft Corp., which asks whether the government can gain access from email providers to data that is stored overseas. Additional coverage of the grant in Microsoft comes from Mark Sherman at the Associated Press, Greg Stohr at Bloomberg, Lawrence Hurley at Reuters, Robert Barnes for The Washington Post, Adam Liptak for The New York Times, Brent Kendall for The Wall Street Journal, and Josh Gerstein at Politico, who reports that “[l]aw enforcement officials say they need the ability to compel U.S.-based firms to comply with subpoenas and search warrants, but the companies argue that giving American investigators the right to do that will lead to foreign governments demanding data stored on U.S. soil.” In an op-ed for The Washington Post’s Volokh Conspiracy blog, Orin Kerr remarks that “it’s shaping up to be a really big Supreme Court term for digital evidence collection.”

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Petitions of the day

By on Oct 16, 2017 at 8:20 pm

The petitions of the day are:

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Issues: (1) Whether, when there is no way to tell whether a prior jury found particular facts against a party, due process permits those facts to be conclusively presumed against that party in subsequent litigation; and (2) whether strict-liability and negligence claims based on the findings by the class-action jury in Engle v. Liggett Group, Inc. are pre-empted by the many federal statutes that manifested Congress’s intent that cigarettes continue to be lawfully sold in the United States.

17-401

Issues: (1) Whether, when there is no way to tell whether a prior jury found particular facts against a party, due process permits those facts to be conclusively presumed against that party in subsequent litigation; and (2) whether strict-liability and negligence claims based on the findings by the class-action jury in Engle v. Liggett Group, Inc. are pre-empted by the many federal statutes that manifested Congress’s intent that cigarettes continue to be lawfully sold in the United States.

17-415

Issues: (1) Whether, when there is no way to tell whether a prior jury found particular facts against a party, due process permits those facts to be conclusively presumed against that party in subsequent litigation; and (2) whether, if the Engle v. Liggett Group, Inc. jury’s findings are deemed to establish that all cigarettes are inherently defective, claims based on those findings are pre-empted by the many federal statutes that manifest Congress’s intent that cigarettes continue to be lawfully sold in the United States.

This morning the Supreme Court issued orders from its October 13 conference. The justices added four new cases to their merits docket for the term, and several justices commented on some of the cases in which the court denied review.

The highest-profile grant of the day came in United States v. Microsoft Corp., in which the justices agreed to decide whether an email provider who has been served with a warrant must provide the federal government with emails, even when the email records are stored outside the United States. The case arose when the federal government asked for a warrant that would require the software behemoth to disclose information about a specific email account, which the government believed was being used for drug trafficking. The government relied on the Electronic Communications Privacy Act of 1986, also known as the Stored Communications Act, which authorizes the government to use a warrant to obtain email records when it has probable cause to believe a crime is being committed. A federal judge issued the warrant, which was served on Microsoft at its headquarters in Washington state.

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The October sitting has ended—and we’re here to wrap it up for you. On this episode, we begin by discussing the biggest news of the month: our new microphones, brought to you courtesy of our Patreon supporters. We also break down the December argument calendar (warrantless location tracking, cake-as-speech, federalism, and gambling) as well as the court’s long-awaited disposition of the travel-ban case.

We’re also joined this week by Nina Totenberg, who talked with us about how the first month looked from her (very nice) seat in the courtroom. Justice Gorsuch’s manner at oral argument: discussed. The reaction of the “reasonable party-goer” to marijuana: discussed. The extent to which the background of the court’s members creates a pro- or anti-“corporate” tilt: also discussed.

Last week, the court heard oral argument in Jesner v. Arab Bank, PLC, a major case about human-rights litigation and the Alien Tort Statute, and we discuss how the argument went in some detail. The court also heard argument in a case about the extent to which a time limit in a rule of appellate procedure is jurisdictional, and (ever on-brand) we discuss that case in nearly equal detail. Finally, we wrap things up with some listener hotline calls, including one about what liberals put on their steak.

Monday round-up

By on Oct 16, 2017 at 7:27 am

At Just Security, William Dodge discusses last week’s oral argument in Jesner v. Arab Bank, in which the justices considered whether corporations are liable under the Alien Tort Statute, explaining that “the Justices seemed to be looking at the question in two steps: (1) whether customary international law permits corporate liability; and (2) assuming it does, whether the ATS cause of action should be interpreted to permit corporate liability.” Another look at the argument in Jesner comes from Kenneth Jost at Jost on Justice, who concludes that “[s]even years after giving corporations a First Amendment right to unlimited spending in election campaigns, the Roberts Court appears ready to give corporations a free pass for serious human rights violations committed abroad.”

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This week at the court

By on Oct 15, 2017 at 12:00 pm

On Monday, the Supreme Court released orders from the October 13 conference. The court added four new cases to its merits docket: United States v. Microsoft Corp., Ohio v. American Express Co., Currier v. Virginia and Dahda v. United States. The justices will meet next for their October 27 conference. The calendar for the November sitting, which begins on October 30, is available on the Supreme Court’s website.

 
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Petition of the day

By on Oct 13, 2017 at 8:20 pm

The petition of the day is:

17-424

Issue: Whether the Supreme Court of Texas correctly decided that Obergefell v. Hodges and Pavan v. Smith “did not hold that states must provide the same publicly funded benefits to all married persons,” regardless of whether their marriages are same-sex or opposite-sex.

Oyez has posted audio and transcripts from this week’s oral arguments at the Supreme Court.

The court heard argument this week in:

Posted in Merits Cases
 
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