Friday round-up

By on Apr 18, 2014 at 8:20 am

Coverage of the Court focuses on next week’s oral arguments in American Broadcasting Companies v. Aereo, in which the Court will consider whether Aereo’s streaming of broadcast television programs over the Internet violates federal copyright laws.  Robert Levine previews the case for Bloomberg Businessweek, while in an op-ed for The Daily Caller, Gary Shapiro urges the Court to “side with Aereo.” In an op-ed for The Wall Street Journal’s Market Watch, Nat Worden contends that, if Aereo “wins, the entire media and entertainment industry could be transformed.”

In other Court-related news, last night Justices Antonin Scalia and Ruth Bader Ginsburg made a joint appearance at the National Press Club, where they both suggested that the Court would eventually weigh in on the legality of the National Security Agency’s surveillance activities.  Lawrence Hurley reports on the event for Reuters.

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Neither side in an important test case on the constitutional standard that courts should use in gay rights lawsuits supported a new hearing on that issue in the U.S. Court of Appeals for the Ninth Circuit.  Amid new filings on Thursday, one side did call for en banc review, but not on the standard for reviewing claims of discrimination based on sexual orientation.

The case of SmithKline Beecham Corp. v. Abbott Laboratories involves a civil antitrust dispute between drug companies, but it has gained more prominence because of its potential impact on court review of the constitutionality of state bans on same-sex marriage.  Whether the Ninth Circuit will now move on to review the proper constitutional test remains uncertain in the wake of the new papers filed in that court.  The two documents can be found here and here.

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Petition of the day

By on Apr 17, 2014 at 10:11 pm

The petition of the day is:

Drake v. Jerejian

Issue: (1) Whether the Second Amendment secures a right to carry handguns outside the home for self-defense; and (2) whether state officials violate the Second Amendment by requiring that individuals wishing to exercise their right to carry a handgun for self-defense first prove a “justifiable need” for doing so.

Teva Pharmaceuticals USA, Inc., the maker of a widely used drug for treating multiple sclerosis, told the Supreme Court on Thursday that it is willing to put aside promptly up to $500 million to cover marketing losses that generic competitors might have if Teva succeeds in keeping them on the sidelines for months with their lower-priced alternative versions of the drug.

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Posted in Everything Else

In the next stage of its continuing quest to reexamine every significant aspect of the Federal Circuit’s doctrinal framework for patents, the Court in Nautilus, Inc. v. Biosig Instruments will consider the proper standard for invalidating a patent claim as “indefinite.”

Background: The case involves a technical solution to a common problem in the exercise-equipment industry.  How can you measure the heartbeat of the exerciser without attaching electrodes?  The principal difficulty is that the body generates two separate sets of electrical waves, with similar amplitudes:  “ECGs,” the waves from the heart, which have the distinctive pattern we’ve all seen on heart monitors; and “EMGs,” which come from muscles.  Because the two kinds of waves have similar amplitudes, simply recording the waves from any particular place on the body (such as the hands) will present a mass of noise from which the ECGs cannot easily be discerned.

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Thursday round-up

By on Apr 17, 2014 at 8:31 am


  • Writing for the Legal Times, Tony Mauro reports on Tuesday’s sentencing in D.C. Superior Court of Noah Kai Newkirk, who was arrested in February for disrupting an oral argument at the Supreme Court.  Newkirk was sentenced to time served and ordered to pay $150.
  • Tonight at 6 p.m. C-SPAN and C-SPAN Radio will air an appearance by Justices Ruth Bader Ginsburg and Antonin Scalia at the National Press Club, where they will discuss (among other things) the First Amendment with host Marvin Kalb. Continue reading »
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At 10 a.m. next Tuesday, the Supreme Court continues its current fascination with free speech and the First Amendment, exploring at a one-hour hearing when an advocacy group can challenge a restriction on election campaign rhetoric.  Arguing for two advocacy groups in Susan B. Anthony List v. Driehaus will be Michael A. Carvin of the Washington, D.C., office of Jones Day, with twenty minutes of time.  If the Court, as expected, permits the federal government to join in the argument, its views will be represented by Eric J. Feigin, an Assistant to the U.S. Solicitor General, with ten minutes.  Ohio’s lawyer at the lectern, with thirty minutes, will be Ohio Solicitor Eric E. Murphy of Columbus.


The attack ad, often used to shame a candidate in an effort to persuade voters, is as common in today’s political campaigns as buttons, town hall meetings, and endorsements.  But it is not routine for the government to try to police those ads.  The state of Ohio and some fifteen others try to do so, however, and that has helped produce the latest First Amendment case for a Supreme Court that currently has a keen interest in that amendment, especially in campaign settings.

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Petitions of the day

By on Apr 16, 2014 at 10:15 pm

The petitions of the day are:

Jesinoski v. Countrywide Home Loans, Inc.

Issue: Whether a borrower exercises his right to rescind a transaction in satisfaction of the requirements of the Truth in Lending Act, 15 U.S.C. § 1635, by “notifying the creditor” in writing within three years of the consummation of the transaction, as the Third, Fourth, and Eleventh Circuits have held, or must instead file a lawsuit within three years of the consummation of the transaction, as the First, Sixth, Eighth, Ninth, and Tenth Circuits have held.

Keiran v. Home Capital, Inc.

Issue: Whether, to exercise the right to rescind a mortgage loan under the Truth in Lending Act, it is sufficient for a consumer to notify the creditor in writing within three years of obtaining the loan (as the Third and Fourth Circuits have held, and as the Consumer Financial Protection Bureau has concluded), or whether the consumer must also file suit within that three-year period (as the Eighth, Ninth, and Tenth Circuits have held).

A federal judge in Bismarck, North Dakota, on Wednesday struck down the strictest anti-abortion law in the nation, a ban on ending pregnancy after a fetal heartbeat is detected — that is, at about six weeks.  Separately, U.S. District Judge Daniel L. Hovland rejected a legal maneuver by lawyers for the state seeking to prohibit all abortions in North Dakota, at any point in pregnancy.

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The Supreme Court disclosed Wednesday, in routine entries on its docket, that Justice Samuel A. Alito, Jr., will now be taking part in two cases from which he had held himself out earlier — both set for argument next week.

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