Taking at least some risk that time will grow too short in President Obama’s time in the White House to carry out his sweeping new policy on immigration, the Justice Department decided Wednesday that it would not now ask the Supreme Court for permission to put the program into effect.

The policy of delaying the deportation of some 4.3 million undocumented immigrants has been blocked nationwide by a federal judge in Texas, and the U.S. Court of Appeals for the Fifth Circuit refused on Tuesday to interfere with that order or even to narrow its reach.

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Kellogg Brown & Root Services v. United States ex rel. Carter took the Court once again – for the seventh time in the last ten years – into the sordid world of the False Claims Act. It seems like such a simple idea. Recognizing the limited incentives that government contractors and the officials who deal with them have to disclose their own corrupt dealings, Congress since the Civil War has permitted private parties (“relators”) to collect what amounts to a bounty if they bring to light evidence of serious fraud in a government contract. Those actions are commonly known as “qui tam” actions, based on the opening words of a common-law writ that allowed a recovery for private parties that assisted a prosecution. Continue reading »

The Bankruptcy Code of 1978 granted bankruptcy judges broad authority to resolve disputes related to debtors and their estates, but it did not grant them Article III protections against the removal or reduction of their salaries. The Court has struggled for thirty years over how to accommodate the practical justifications for that grant with the constitutional vesting of the judicial power in courts with Article III protections.

In Northern Pipeline Construction Company v. Marathon Pipe Line Co., a divided Court held that the Constitution prevented bankruptcy courts from adjudicating a state-law breach of contract claim, even though it was brought by a creditor against the estate of the bankrupt. The Court extended that decision twice – first in Granfinanciera SA v. Nordberg (fraudulent conveyance claim brought by an estate) and again in Stern v. Marshall (counterclaim brought by an estate against a creditor).   Last Term’s decision in Executive Benefits Insurance Agency v. Arkison considered a bankruptcy court’s adjudication in the first instance of a so-called Stern claim (a claim that requires Article III adjudication under Stern and its predecessors); the Court held that a district judge’s subsequent entry of judgment following de novo review satisfied the requirements of Article III. Continue reading »

Justice Kennedy’s opinion in Commil USA v. Cisco Systems managed to pull off a hard trick: getting a majority of the Justices to ignore the explicit language of an opinion so recent that all of those who signed it are still on the Court. The case involves the requisite intent for inducing patent infringement. Specifically, the question is whether a business can “actively induce” patent infringement if it holds a good-faith (albeit mistaken) belief that a patent is invalid.

Because the statute offers no more guidance than the general instruction that “[w]hoever actively induces infringement of a patent shall be liable as an infringer,” all agree that the question turns on the Court’s 2011 decision in Global-Tech Appliances v. SEB S.A. The Court in that case faced the question whether a party could be liable for inducing infringement if it did not know that the induced acts amounted to infringement. The Global-Tech Court acknowledged that the statute said nothing about the requisite intent, but concluded that the statute implicitly imposed an intent requirement. The Global-Tech Court concluded, with only Justice Kennedy dissenting: “[W]e now hold that induced infringement . . . requires knowledge that the induced acts constitute patent infringement.” Continue reading »

Wednesday round-up

By on May 27, 2015 at 5:12 am

The Justices returned from their long weekend yesterday morning and gave us plenty to talk (and write) about for the rest of the week.  At 9:30 a.m. yesterday they issued orders from last week’s Conference, adding three new cases to their docket for next Term.  Lyle Denniston covered those orders for this blog, with other coverage of the list generally coming from Jaclyn Belczyk of JURIST.

In Evenwel v. Abbott, they noted jurisdiction in a “one-person, one-vote” appeal involving Texas’s redistricting plan for its state senate.  In addition to Lyle’s reporting on the case in his orders post, other coverage comes from Mark Walsh at Education Week’s School Law Blog, Adam Liptak of The New York Times, and Jess Bravin of The Wall Street Journal (subscription required), with commentary coming from Rick Hasen at his Election Law Blog and at Slate.  At the Constitutional Law Prof Blog, Ruthann Robson weighs in on yesterday’s grant in Foster v. Humphrey, a Georgia capital case in which prosecutors’ notes revealed that they had identified, and then struck, all of the African-American jurors in a criminal case.  She argues that the “Court has the opportunity to revisit Batson and the problem of distinguishing between race-neutral and pretextual reasons, perhaps providing a more workable and fair rule.” Continue reading »

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Petition of the day

By on May 26, 2015 at 10:15 pm

The petition of the day is:


Issue: (1) Whether the state courts were objectively unreasonable when they held that DeBruce failed to establish that his counsel performed deficiently at the penalty phase of his trial; and (2) whether the state courts were objectively unreasonable when they held that DeBruce had not been prejudiced by his counsel’s performance.


In a decision that seems likely to be challenged in the Supreme Court, a divided federal appeals court refused on Tuesday to permit the Obama administration to put into effect its new policy to temporarily spare more than four million undocumented immigrants from being deported.   The government, the U.S. Court of Appeals for the Fifth Circuit ruled, has not made a case for going forward while the legality of the program is under review in the courts.

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SCOTUS takes Evenwel v. Abbott (Art Lien)

SCOTUS takes Evenwel v. Abbott (Art Lien)

The Constitution has been understood for the past half-century to require that no individual’s vote count more at election time than anyone else’s.  The Supreme Court agreed on Tuesday, for the first time, to clarify how that concept of equality is to be measured, when legislatures are drawing up election districts.

The Court took on a case challenging the 2011 redistricting of the thirty-one seats in the Texas Senate, focusing on what measure of population should be used to judge whether the “one-person, one-vote” mandate has been met.  That mandate originated in Reynolds v. Sims in 1964.  The new case of Evenwel v. Abbott will be heard and decided next Term, as will two new criminal cases the Justices also agreed on Tuesday to hear.

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We are live-blogging this morning as orders and opinions are released. Join us. 

Posted in Live

Tuesday round-up

By on May 26, 2015 at 6:50 am


  • Writing for his eponymous blog, Lyle Denniston reports on a recent ruling by the U.S. Court of Appeals for the D.C. Circuit that “could set up a new attempt by [tobacco] companies to get Supreme Court protection for what they say against themselves in their own promotional messages.”
  • Writing for The National Law Journal (subscription or registration required), Tony Mauro reports on recent comments by presidential candidates (and criticism of those comments) suggesting that they might impose a “litmus test” for potential Supreme Court nominees.
  • At Reuters, Lawrence Hurley explains why “the biggest beneficiary of a win for Texas” in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, in which the Court is considering whether a cause of action based on disparate impact is available under the Fair Housing Act, “could well be Wall Street.”
  • At the blog of the National Conference of State Legislatures, Lisa Soronen analyzes last week’s decision in Comptroller v. Wynne, holding that Maryland’s personal income tax scheme violates the Constitution.
  • Writing for his Election Law Blog, Rick Hasen reports that members of Congress have introduced a new bill intended to “blunt the effect” of a possible ruling in Arizona State Legislature v. Arizona Independent Redistricting Commission striking down the use of independent redistricting commissions to draw boundaries for congressional districts.
  • At Jost on Justice, Kenneth Jost discusses the recent referendum to legalize same-sex marriage in Ireland and contends that, as “[p]olls in the United States show . . . ‘a broad national consensus’ in favor of marriage equality,” the Supreme Court “can stand in the way or it can follow the election returns.”
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