Yesterday the Court heard oral arguments in United States v. Apel, a case pitting officials at a military base against an anti-war protester whom the military has banned from the area just outside the base designated as a “protest zone.” Lyle Denniston covered the argument for this blog, reporting that the Justices seemed largely uninclined to address the protester’s First Amendment claims; other coverage comes from Nina Totenberg of NPR, who agrees that the Court “was not in the mood for big constitutional questions,” and Jess Bravin of The Wall Street Journal, who suggests that, “even if the government wins the current round, . . . the justices might send the case back to the lower court to consider whether the First Amendment permits Mr. Apel to return to the Highway 1 protest zone.” Ruthann Robson analyzes the oral argument at Constitutional Law Prof Blog, where – after noting that Justice Breyer had “looked at the Google maps” of the air base — she concludes that “it’s doubtful that the Court will render an opinion in Apel destined for First Amendment treatises or casebooks. On the other hand, any opinion will surely be written in the shadow of First Amendment doctrine and theory.” Continue reading »
The petition of the day is:
Issue: Whether the Fourth Circuit correctly interpreted the preemption provision of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9658, to apply to state statutes of repose in addition to state statutes of limitations.
Striving mightily to stay clear of a constitutional question, the Supreme Court spent an hour on Wednesday basically trying to figure out what a property easement means. What does it give to, and what does it take away from, users of the property? And where does it draw the line between what is allowed and what is forbidden? The only reason this was not just an exercise in ordinary property law is that the Court was talking about military control of access to its defense facilities, and its power to punish those who encroach on it.
A Californian who devotes much of his life to staging anti-war demonstrations outside an Air Force base along the Pacific Coast seemed likely to win his complaint of legal mistreatment only if the Court were to take seriously his claim that his First Amendment right of free speech has been violated.
But it seemed quite clear that a majority was most reluctant to even consider that argument. “You can raise it, but we don’t have to listen to it,” Justice Antonin Scalia bluntly remarked to the protester’s lawyer — Erwin Chemerinsky, dean of the UC Irvine School of Law.
The Fifth Circuit had a hard day at the Court on Tuesday – the Court’s second and third decisions of the Term were unanimous reversals of the Fifth Circuit. The first one was Atlantic Marine Construction Co. v. United States District Court, in which the Court reversed the Fifth Circuit’s refusal to enforce a forum-selection clause. The unanimous result in this case was no surprise. After the argument reversal seemed a foregone conclusion; the principal remaining question was what doctrinal route the Court would take, given the existence of strong precedent complicating either of the obvious routes to reversal.
Diane Marie Amann is the Emily and Ernest Woodruff Chair in International Law at the University of Georgia School of Law.
Apparent in Monday’s oral argument in BG Group PLC v. Republic of Argentina were the matryoshka-doll complexities nested in the Supreme Court’s review of a 2012 federal appellate decision that overturned a 2007 arbitral award of $185 million to a British-chartered oil and gas company operating in Buenos Aires. The award had been made despite the fact that the investing company had not followed a Britain-Argentina investment treaty clause that contemplated the maintenance of a lawsuit in Argentina for eighteen months before the onset of the arbitration – an arbitration conducted under the rules of yet another entity, the U.N. Commission on International Trade Law (UNCITRAL).
Yesterday the Court heard oral arguments in Northwest, Inc. v. Ginsberg, in which it is considering whether a rabbi who was dismissed from Northwest’s frequent-flyer program can sue the airline under state law, or whether his claims are instead preempted by federal aviation laws. Nina Totenberg previewed the case for NPR; coverage of the oral arguments comes from Jess Bravin of The Wall Street Journal and Jaclyn Belczyk of JURIST (who also covers the second case yesterday, Lexmark International v. Static Control Components). Continue reading »
The petition of the day is:
Issue: (1) Whether – as the Third, Seventh, and Eleventh Circuits hold – a district court possesses authority to prevent circumvention of its orders by imposing sanctions on conduct that violates the understood purpose of an injunction, but not its explicit terms, or whether – as the First, Second, Fifth, and Tenth Circuits hold – the four corners of an injunction’s text limit a district court’s civil contempt authority; (2) whether – as the First, Third, Fourth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits hold – a court of appeals should accord deference to a district court’s construction of its own orders, or whether – as the Second, Fifth, District of Columbia, and Federal Circuits hold – an appellate court reviews that construction de novo.
The transcript in Lexmark International Inc. v. Static Control Components, Inc. is here.