Editor's Note :

Editor's Note :

On Tuesday at 9:30 a.m. we expect orders from the Court's May 20 Conference, followed by one or more opinions in argued cases at 10. We will begin live-blogging shortly before 9:30 at this link.

Relist Watch

By on May 21, 2015 at 1:19 pm

John Elwood reviews Monday’s relisted cases.

Well readers, it’s come and gone. This week’s Mad Men finale signified “the end of an era,” and was, depending on your point of view, ironic, clever, pat, ambiguous, happy and cynical, existentially brilliant, or disturbing, unsettling, and thrilling (presumably all at once). Or, if you didn’t see it at all, perplexing. (For those who missed Sunday night’s episode, you can watch an abridged version here.) That unhappy news, coupled with Letterman’s sign-off this week, is probably going to leave an entertainment void in your lives that we at Relist Watch very much hope to fill with, among other things, enough relists to make you ralph … or, “roger,” as the case may be.

Even with the two-week intermission since the last Conference, the Court didn’t clear out its lingering relists this week. Of last Conference’s eight relisted cases, the court granted one, denied one, and kept six as leftovers, to be boxed and bagged for next week’s consumption. Our lone grant has, much like its namesake, started from the bottom and earned a place at the table through persistence. Campbell-Ewald Co. v. Gomez, 14-857, which was once rescheduled before its relist, (fittingly) involves an ad agency that, after being sued for an ill-advised text-message campaign for the U.S. Navy, offered to pay the named plaintiff in a class action more money than he would have been able to gain from litigation. The respondent rebuffed the offer. Campbell-Ewald poses three questions: (1) whether a case becomes moot when the plaintiff receives an offer of complete relief on his claim; (2) whether a case becomes moot when the plaintiff has asserted a class claim but receives an offer of complete relief before any class is certified; and (3) whether the doctrine of sovereign immunity recognized in Yearsley v. W.A. Ross Construction Co. for government contractors is restricted to claims arising out of property damage caused by public works projects. Class-action types are watching this one closely. Continue reading »

 
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At its Conference on May 21, 2015, the Court will consider petitions seeking review of issues such as the constitutionality of the University of Texas at Austin’s consideration of race in its undergraduate admissions process, pretrial restraint of a criminal defendant’s untainted assets under the Fifth and Sixth Amendments, and the constitutionality of a Mississippi law requiring physicians who perform abortions to have admitting privileges at a local hospital.

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.

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Thursday round-up

By on May 21, 2015 at 10:55 am

Monday’s decision in City and County of San Francisco v. Sheehan, in which the Court held that two police officers who shot a mentally disabled woman whom they were trying to arrest are entitled to qualified immunity, continues to garner commentary. At Hamilton and Griffin on Rights, Leslie Shoebotham argues that the Court’s dismissal of the first question presented in the case, about whether the Americans with Disabilities Act required the officers to provide accommodations in scenarios like this, left “San Francisco in the position of having secured what had to be . . . an incredibly embarrassing win.” Lisa Soronen analyzes the decision at the Appellate Practice Blog, predicting that “the Court is likely to again hear a case involving the question of whether and when the ADA applies to arrests.” And at PrawfsBlawg, Richard Re weighs in on some of the decision’s “unexpected aspects.” At The Economist’s Democracy in America Blog, Steven Mazie discusses the Court’s decision in Comptroller v. Wynne, striking down a portion of Maryland’s personal income tax scheme; he suggests that it “shows the justices hard at work at the job they were nominated and confirmed to do: interpreting and applying the constitution of the United States.”

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Petition of the day

By on May 20, 2015 at 10:25 pm

The petition of the day is:

14-395

Issue: Whether the Fourth Circuit contravened 28 U.S.C. § 2254(d)(1) when it granted habeas relief on the ground that the North Carolina state courts unreasonably applied "clearly established" law when they held that third-party religious discussions with jurors did not concern "the matter[s] pending before the jury"?

The water wars return to the Court again, this time in an original action – that is, a lawsuit that begins in the Supreme Court – brought by Mississippi against Tennessee. The dispute centers around water from the Sparta-Memphis Aquifer, which spans the Tennessee-Mississippi border. The city of Memphis has long pumped water from the aquifer, leading to lower water levels in the part of the aquifer located below the city. Those lower water levels in turn result in different water pressures in that section of the aquifer, on the one hand, and sections of the aquifer under other parts of Tennessee, Arkansas, and Mississippi. As a result, Mississippi contends, water stored in the aquifer in Mississippi moves north toward Memphis, even though it would normally remain in Mississippi. Continue reading »

Reacting to a Supreme Court order to reconsider, a federal appeals court refused on Tuesday for a second time to stop enforcement of the federal government’s birth-control mandate against the University of Notre Dame.  In a two-to-one ruling, the U.S. Court of Appeals for the Seventh Circuit cleared the way for a trial of the university’s challenge but denied any immediate religious exemption.

This marked the first time that a federal appeals court had rejected a claim that the Supreme Court’s ruling last June in the case of Burwell v. Hobby Lobby Stores should shield a non-profit religious organization from any role whatsoever in carrying out the Affordable Care Act’s contraceptive mandate. The issue seems certain to return to the Justices, probably next Term, although Notre Dame could try to get some temporary relief by returning quickly to the Supreme Court.

Continue reading »

Wednesday round-up

By on May 20, 2015 at 9:55 am

At their private Conference tomorrow, the Justices will consider the petition in Fisher v. University of Texas at Austin, the challenge to the university’s use of affirmative action in its undergraduate admissions process.  The editorial board of The Wall Street Journal urges the Court to grant review in the case again, as do Roger Clegg at the National Review’s Bench Memos blog and Richard Kahlenberg at The Chronicle of Higher Education. Continue reading »

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Petition of the day

By on May 19, 2015 at 10:19 pm

The petition of the day is:

14-973

Issue: Whether or under what circumstances police officers conduct a search within the meaning of the Fourth Amendment when they trespass in common areas of locked apartment buildings to look for evidence of criminal activity.

Justice Breyer’s opinion for the Court yesterday in Tibble v. Edison International underscored the Court’s commitment to unstinting enforcement of the fiduciary duties that govern ERISA plans. Although the case involves considerable procedural detail, the issue before the Court is a simple one: is it enough for the ERISA duty of prudence that the fiduciary make prudent decisions to invest in the first instance, or must the fiduciary also make prudent decisions about whether it should sell assets (or otherwise change the composition of the plan’s portfolio)?

If that sounds a bit technical, the underlying facts demonstrate the problem well. A firm’s 401(k) plan invested in a series of mutual funds in 1999 and another series in 2002. A group of employees filed suit in 2007, claiming that the fiduciaries (including, among others, the employer-respondent Edison International) should have invested in “wholesale” funds, which have lower management fees than the “retail” funds in which the plan was invested. Because the plan’s 1999 investment was made more than six years before the complaint, the fiduciaries claimed the suit was untimely as to those funds. The employees responded that the fiduciaries had a continuing duty to monitor investments, which continued into the limitations period. When the Ninth Circuit affirmed the district court’s ruling for the employer, the Court granted review. Continue reading »

 
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Bradley W. Joondeph is the Inez Mabie Distinguished Professor and Associate Dean for Academic Affairs at the Santa Clara University School of Law.

On Monday, a sharply divided Supreme Court held in Comptroller v. Wynne that Maryland’s personal income tax scheme – which failed to offer Maryland residents a full credit for income taxes paid to other states on income they earned in those states – was unconstitutional. By a vote of five to four, an ideologically diverse majority (consisting of Chief Justice John Roberts and Justices Anthony Kennedy, Stephen Breyer, Samuel Alito, and Sonia Sotomayor) concluded that Maryland’s scheme violated the dormant Commerce Clause because it discriminated against interstate commerce. Justices Antonin Scalia, Clarence Thomas, and Ruth Bader Ginsburg each authored dissenting opinions, on widely divergent grounds, revealing a fundamental dissensus on the Court regarding the dormant Commerce Clause.

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