The first week of the November session brings the justices once again to the False Claims Act, with Tuesday’s argument in State Farm Fire & Casualty Co. v. United States ex rel. Rigsby. In case you’re neither in the business of defending government contractors nor a regular reader of this blog, the False Claims Act is a 19th-century statute that permits private “relators” who learn of fraud in federal government contracts to file suit against the malfeasant contractor. The federal government receives notice of the suit and can take control of the litigation if it wishes. If the government takes control of the litigation, the relator receives 15-25% of any award; if the government declines to take control, the relator receives 25-30% of any award.


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Tuesday round-up

By on Oct 25, 2016 at 6:24 am

At the Associated Press, Mark Sherman reports on the intersection between the current vacancy on the Supreme Court and the upcoming election, noting that “the stakes are even higher when the president has a chance to put a like-minded justice on the court to take the place of an ideological opponent,” because such “a switch can change the outcome of some of the court’s most important cases.” In an op-ed in The Huffington Post, Marjorie Cohn observes that “Trump and Clinton’s choices for Supreme Court justices could not be more philosophically dissimilar” and highlights the conservative records of several of Trump’s prospective nominees. At Bloomberg, Patrick Gregory profiles Michigan Supreme Court Chief Justice Robert Young, who is on Trump’s list of candidates for nomination. At, Damon Root looks at recent statements by Republican senators assessing the prospect of Senate hearings on the nomination of Chief Judge Merrick Garland; he argues that such hearings “would be a positive development because they might force conservative lawmakers to publicly air their differences” on “crucial legal questions.” And at MSNBC, Steve Benen reports that Sen. Chuck Grassley, the chairman of the Senate Judiciary Committee, cited the expense of hearings as a reason not to conduct them.

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Petitions of the day

By on Oct 24, 2016 at 11:12 pm

The petitions of the day are:


Issue: Whether the Leahy-Smith America Invents Act permits the Patent Trial and Appeal Board instead of the Director to make inter partes review institution decisions.


Issue: Whether the Leahy-Smith America Invents Act permits the Patent Trial and Appeal Board instead of the Director to make inter partes review institution decisions.

In the court of public opinion, Stacy and Brent Fry have probably already won. Who would deny their adorable daughter, who was born with cerebral palsy, the opportunity to bring her equally winsome service dog to school with her, to help her with everything from opening and closing the doors to using the bathroom independently? Well, the school district in Napoleon, Michigan, did, which gave rise to the dispute now before the U.S. Supreme Court. But, perhaps fortunately for the school district, whether the Frys’ daughter – known in the litigation by her initials, E.F. – can bring her dog to school is not the issue before the eight justices. Instead, on October 31, the court will hear oral argument on a different (and much more technical) question: whether the Frys could bring their lawsuit directly in federal court or instead were required to first press their case in state administrative proceedings.

Ehlena and Wonder 10-23-15

Wonder and E.F. (Photo by Stacy Fry)

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Star Athletica v. Varsity Brands presents the justices with a classic intellectual-property problem: the use of copyright to protect functional objects. The issue in this case is whether the respondent, Varsity Brands, has a protectable interest in the design of cheerleading uniforms arguably copied by the petitioner, Star Athletica.

The case starts from Section 102 of the Copyright Act, which protects “original works of authorship fixed in any tangible medium of expression.” Under Section 113 of the act, “the exclusive right to reproduce a copyrighted … work … includes the right to reproduce the work in or on any kind of article, whether useful or otherwise.” At the same time, it has been recognized since the 19th century that copyright protection extends only to the “expressive” content of the work. It does not reach functional ideas or objects; only patents can protect those attributes of a creative work.

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Event announcement

By on Oct 24, 2016 at 9:44 am

On October 25 at 12 p.m., the George Washington Law Review will host a panel discussion on two upcoming cases, Bethune-Hill v. Virginia State Board of Elections and McCrory v. Harris. Speakers will include Paul Clement and Alan Morrison. More information about this event, which will be held at the Jacob Burns Moot Court Room at the George Washington University Law School, as well as live tweeted, is available on the law review’s website.


Monday round-up

By on Oct 24, 2016 at 7:35 am

Last week the court released its calendar for the December sitting. As Amy Howe reports for this blog, three controversial cases that the court agreed to review last January, before the death of Justice Antonin Scalia, were notably absent. At the Associated Press, Mark Sherman observes that the calendar offers “new evidence that the short-handed court is having trouble getting its work done.” In The Washington Post, Juliet Eilperin and Robert Barnes report that the “bare-bones calendar” suggests the court may be “storing cases in hopes of having a full membership of nine by the end of the year.”

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This week at the court

By on Oct 23, 2016 at 12:02 pm

The November sitting will begin on Monday, October 31; the calendar for that sitting is available on the court’s website. On Friday, the justices will meet for their October 28 conference; our list of “petitions to watch” for that conference will available soon.


Petition of the day

By on Oct 21, 2016 at 11:09 pm

The petition of the day is:


Issues: (1) Whether the government fails to satisfy the “money or property” requirement of wire fraud, 18 U.S.C. § 1343, when a misrepresentation deprives the purported victim of information about a potential economic benefit, but the purported victim has no contractual right or other legal entitlement to that benefit; and (2) whether the court of appeals must actually determine, and not merely presume, that a sentencing court has discharged its duty under 18 U.S.C. § 3553 and Rita v. United States to state its reasons for imposing a particular sentence after having considered the defendant’s arguments and the statutory factors.



Court releases December calendar

By on Oct 21, 2016 at 6:54 pm

The Supreme Court released its December calendar today. During their December sitting, which begins on November 28, the justices will hear eight hours of oral argument over six days: two one-hour arguments on both Monday, November 28, and Monday, December 5, and one one-hour argument on each of the four remaining days – November 29-30 and December 6-7. Continue reading »

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