Petition of the day

By on Jan 18, 2017 at 11:20 pm

The petition of the day is:


Issues: (1) Whether, for a defamation plaintiff to be deemed a limited-purpose public figure, the defamatory statement must be directly related (or “germane”) to the plaintiff’s voluntary involvement in the particular public controversy; and (2) if the court grants certiorari on the above question, whether a court may grant summary judgment in an actual-malice case on the ground that the plaintiff has not proven that the defendant “actually possessed subjective doubt” about the truth of a story, even if, based on the admissible evidence, a reasonable jury could find that the defendant actually possessed subjective doubt.

When Acting Solicitor General Ian Gershengorn took the lectern today in Ziglar v. Abbasi, he attempted to paint a portrait of déjà vu all over again. The three consolidated cases before the Supreme Court today were brought by a group of Muslim and Arab men who were in the United States illegally and were arrested after the September 11, 2001, attacks; they claim that their rights were violated when they were held in detention centers under unreasonably harsh conditions until they were cleared of any connection to terrorism, even though federal officials knew that they had no connection to terrorism, solely because of their race and ethnicity. According to Gershengorn, today’s cases were simply a reprise of 2009’s Ashcroft v. Iqbal, in which the justices ruled that a complaint filed by another Muslim detainee, alleging that his harsh treatment in prison violated the Constitution, needed to contain enough facts to demonstrate that the officials he was suing had implemented the policy to discriminate: The plaintiffs in today’s cases, Gershengorn contended, were essentially seeking to hold the same government officials responsible for the same conduct. By the end of the hour, it seemed likely that today’s detainee cases will meet a similar fate as that of Javaid Iqbal. Even strong advocacy from Rachel Meeropol, the lawyer representing the detainees, did not appear to be enough to overcome the justices’ reservations about holding government officials personally responsible for their role in implementing policy following a national emergency – particularly when Justices Sonia Sotomayor and Elena Kagan, two members of the court more likely to be sympathetic to the plight of the detainees, were recused from the case.

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Yesterday, the Supreme Court heard oral argument in Lynch v. Dimaya, a criminal-removal case. The court has taken up several of these in recent years, including Esquivel-Quintana v. Lynch, which the justices will hear next month. Unlike some of the other cases, however, this case involves a constitutional challenge to a criminal-removal provision in the immigration laws, which historically have been held immune from constitutional scrutiny.

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Argument transcripts

By on Jan 18, 2017 at 2:18 pm

The transcript in Lee v. Tam is here; the transcript in Ziglar v. Abbasi is here.

Posted in Merits Cases

Wednesday’s lone opinion, Lightfoot v. Cendant Mortgage Corp., firmly rejects the extension of federal jurisdiction over cases involving the Federal National Mortgage Association. Discussion at the oral argument suggested that several of the justices were concerned that a broad rule permitting all Fannie Mae cases to be removed to federal court would flood the district courts with routine disputes better suited for state court. Justice Sonia Sotomayor’s opinion for a unanimous court uses a close reading of Fannie Mae’s charter to avoid that result.

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Relist Watch

By on Jan 18, 2017 at 1:19 pm

John Elwood reviews Tuesday’s relists

There is a point in bleak midwinter when hope is at its lowest ebb and despair at its zenith. I’m talking, of course, about the rerun season that predates the February sweeps. And rerun season is where we find ourselves now.

This week’s conference marks the theoretical “cutoff” for grants that could be argued this term without expedited briefing. But it looks like any new grants at this point will be argued in the fall: Last week’s new relists yielded 16 grants (for 13 hours of oral argument), likely filling up the remaining argument spots for the rest of the current term. Perhaps sensing that they should save their new stuff for the sweeps, the justices this week have given us only a bunch of returning relists. There is one upside to reruns, though: Because the cases are already familiar to our regular readers, it means that once again, we have a flimsy excuse not to provide detailed case descriptions.

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In its conference of January 19, 2017, the court will consider petitions involving issues such as whether Texas’ voter-ID law “results in” the abridgment of voting rights on account of race; whether a plaintiff’s claims arise out of or relate to a defendant’s forum activities when there is no causal link between the defendant’s forum contacts and the plaintiff’s claims; and whether the imposition of a death sentence in the absence of a unanimous jury verdict in support of death violates the Constitution.

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We live-blogged this morning as the court issued opinions.

Posted in Live

Tuesday morning’s argument in Midland Funding v. Johnson was a tale of two benches, with two groups of justices taking remarkably different approaches. As it comes to the justices, the question is whether a debt collector violates the Fair Debt Collection Practices Act by filing a claim in bankruptcy for a debt known to be uncollectible because of a statute of limitations.

Some of the justices found the activity unambiguously reprehensible. Justice Sonia Sotomayor led the way, dominating the argument time of Kannon Shanmugam (appearing on behalf of the debt collector Midland Funding). Early on, she challenged the underlying premise of the collector’s business:

I’m having a great deal of difficulty with this business model. Completely. You buy old, old debts that you know for certain are not within any statute of limitations. You buy them and you call up [debtors] and you say to them “You don’t have to pay me. But out of the goodness of your heart, you should”? Or do you just call them up and say “You owe me money” and you hope that they’ll pay you? And is it the same thing in bankruptcy court? You file a claim and you hope the trustee doesn’t see that it’s out of time? And apparently you collect on millions of dollars of those debts. So is that what you do?

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Wednesday round-up

By on Jan 18, 2017 at 7:07 am

Today the court hears oral argument in two cases. First up is Lee v. Tam, a First Amendment challenge to a government refusal to trademark a disparaging name. Amy Howe previewed the case for this blog. Alla Khodykina and Rachael Hancock provide a preview for Cornell University Law School’s Legal Information Institute. The second argument today is in three consolidated cases, Ziglar v. Abassi, Ashcroft v. Abassi and Hasty v. Abassi, suits against former high-ranking federal officials stemming from detentions in the wake of the September 11 attacks. Amy Howe had this blog’s preview. Karen Ojeda and Natalie San Juan preview the cases for Cornell. Additional coverage of the Abassi cases comes from Mark Sherman at the Associated Press, who notes that the “justices have twice sided with Ashcroft” in previous cases brought by 9/11 detainees, and that the “odds that the court will come out differently this time are long, especially because only six justices will take part,” and from Abigail Hauslohner and Ann Marimow in The Washington Post.

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Posted in Round-up
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