Editor's Note :

Editor's Note :

On Monday at 9:30 a.m. we expect orders from the Court's May 28 Conference, followed by one or more opinions in argued cases at 10. We will begin live-blogging shortly before 9:30.

Petitions of the day

By on May 28, 2015 at 10:11 pm

The petitions of the day are:


Issue: Whether the Due Process Clause of the Fourteenth Amendment prohibits a state court from certifying a class action, and entering a monetary judgment in favor of the class, where the court permits the use of extrapolation to relieve individual class members of their burden of proof and forecloses the defendants from presenting individualized defenses to class members’ claims.


Issue: Whether the Due Process Clause of the Fourteenth Amendment prohibits a state court from certifying a class action, and entering a monetary judgment in favor of the class, where the court permits the use of extrapolation to relieve individual class members of their burden of proof and forecloses the defendants from presenting individualized defenses to class members’ claims.

At its Conference on May 28, 2015, the Court will consider petitions seeking review of issues such as qualified immunity as applied to private entities, the admissibility of autopsy reports under the Confrontation Clause, and the constitutionality of the University of Texas at Austin’s consideration of race in its undergraduate admissions process.

This edition of “Petitions to watch” features petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues.  Our policy is to include and disclose all cases in which Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, represents either a party or an amicus in the case, with the exception of the rare cases in which Goldstein & Russell represents the respondent(s) but does not appear on the briefs in the case.

Continue reading »

Posted in Everything Else

Event announcement

By on May 28, 2015 at 1:35 pm

On June 2, the National Constitution Center and Intelligence Squared U.S. will host a debate on same-sex marriage and the Equal Protection Clause.  Participants include John Eastman, Sherif Grigis, Evan Wolfson, and Kenji Yoshino. Click here for information on attending the event in Philadelphia. A live-streamed version of the event will be available for free.


Thursday round-up

By on May 28, 2015 at 12:00 pm

Tuesday’s decisions and orders continue to generate coverage and commentary.  Coverage of the Court’s announcement that it will take on Evenwel v. Abbott, the Texas “one person, one vote” case, comes from David Savage and David Lauter, who in the Los Angeles Times focus on the decision’s potential effect on California politics, and – also in the Los Angeles Times – from Cathleen Decker, who notes that the Court’s “unexpected decision to take up [the] case poses perhaps the most acute threat in a generation to Latino political strength in California” but adds that “how much of the threat actually materializes is decidedly less known.”  Commentary comes from Noah Feldman at Bloomberg View, where he suggests that the Court’s decision “will affect the nature of American democracy for generations to come”; from Seth Lipsky, who in the New York Post similarly suggests that the case could “ignite an earthquake in American politics”; from Joey Fishkin, who at Balkinization argues that the case “comes at the law in a kind of funhouse-mirror reverse, aiming to destroy in Equal Protection’s name a substantial chunk of what that clause has built”; at the Constitutional Accountability Center’s Text and History Blog, from David Gans, who contends that “the Court’s decision to hear [the case] is a major development, teeing up what will likely be another huge Roberts Court decision on voting rights and equality”; and from Marty Lederman, who in a post at Balkinization focuses on “the argument made by the United States the last time this issue reached the Court, in the government’s brief in opposition to certiorari in County of Los Angeles v. Garza, No. 90-849” – in a brief signed by then-Deputy Solicitor General John Roberts.  Continue reading »

Posted in Round-up

Commentary: Wellness after Stern

By on May 28, 2015 at 10:19 am

Daniel J. Bussel is a Professor of Law at UCLA School of Law.

Stern v. Marshall was more about Article III of the Constitution, or one particular formalistic approach to Article III frozen in the nineteenth and early twentieth centuries, than about bankruptcy law and procedure. Indeed, the Stern majority expressly took the position that Article III must prevail notwithstanding any practical concerns of the bankruptcy system, nay though the heavens themselves may fall. But in Tuesday’s decision in Wellness International Network v. Sharif, we see that when the heavens do start to crumble even the Supreme Court pays attention. It is unsurprising to me that on calm reflection (that is, by the third time the issue had presented itself in four years) a majority of the Supreme Court sees no point in bringing down a bankruptcy system more than thirty years in place (and perhaps the magistrate system too) to protect the independence of the federal judiciary when the independence of the federal judiciary is in no practical sense under threat from the bankruptcy system, except perhaps by the potential havoc Stern itself might have played with district court dockets.

Continue reading »

Petition of the day

By on May 27, 2015 at 10:20 pm

The petition of the day is:


Issue: Whether North Carolina's statutory requirement that an ultrasound image be displayed and described to the patient prior to an abortion procedure violates the First Amendment rights of the provider.

Taking at least some risk that time will grow too short in President Obama’s term 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.

Continue reading »


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 »

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