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Editor's Note :

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Friday round-up

By on Sep 22, 2017 at 7:28 am

Bloomberg BNA’s Cases and Controversies podcast features a discussion of Epic Systems v. Lewis, in which the court will decide whether employment agreements that ban collective resolution of workplace disputes violate federal employment laws, calling the case “a major showdown between businesses and their workers and the increasing use of arbitration agreements in employment contracts.” In USA Today, Richard Wolf reports that the government’s recent “about-face” in Epic Systems “has created an extremely rare scenario: the Justice Department and National Labor Relations Board, a federal agency, will oppose each other in court”; he concludes that “[b]y all indications now, the case … looks like a 5-4 victory for employers.”

At Take Care, Jim Oleske explores the contested meaning of “general applicability” in the Supreme Court’s free exercise jurisprudence as it relates to the religion-clause issues in Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the court will decide whether the First Amendment allows a state to require a Christian baker to create a cake for a same-sex wedding. At The World and Everything In It (podcast), Mary Reichard hears from eight lawyers who filed amicus briefs asking the justices to hear a similar appeal from a florist alongside the baker’s case.

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Petition of the day

By on Sep 21, 2017 at 8:20 pm

The petition of the day is:

17-301

Issues: (1) Whether a school policy requiring boys and girls to use separate bathroom facilities that correspond to their biological sex is sex stereotyping that constitutes discrimination “based on sex” in violation of Title IX; and (2) whether a school policy requiring boys and girls to use separate bathroom facilities that correspond to their biological sex is a sex-based classification triggering heightened scrutiny under an Equal Protection analysis.

Thursday round-up

By on Sep 21, 2017 at 7:02 am

In The Wall Street Journal, Jess Bravin reports on Tuesday’s confirmation of Noel Francisco as solicitor general, noting that “[t]he Senate divided 50-to-47 along partisan lines, reflecting a distrust among some Democrats toward any lawyer—even an accomplished professional—who would step forward to pursue President Donald Trump’s legal agenda.” In The National Law Journal (subscription or registration required), Marcia Coyle and Mike Scarcella offer “a snapshot of things to know about Francisco and matters on his plate as he prepares to step up to the lectern at the high court.”

At The Economist, Steven Mazie looks at Epic Systems v. Lewis and its two accompanying cases, in which the court will decide whether employment agreements that ban collective resolution of workplace disputes violate federal employment laws, noting that “[i]n a plot twist brought on by the executive branch’s ideological about-face on January 20th of this year, the solicitor general’s office filed an amicus brief backing the companies, … revers[ing] the office’s prior position from September 2016, an uncommon and awkward switcheroo that the justices typically frown upon.” In an op-ed for Newsweek, Ceilidh Gao contends that a ruling for the employers in Epic Systems would harm “individual workers [who] might not be owed much on an individual basis, making it difficult if not impossible for them to seek justice if they can’t join together with coworkers.”

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Petition of the day

By on Sep 20, 2017 at 8:20 pm

The petition of the day is:

17-294

Issue: Whether the U.S. Court of Appeals for the 9th Circuit erred in holding that evidence can be material for purposes of a 42 U.S.C. § 1983 claim alleging deprivation of compulsory process or denial of a fair trial when the defendant was acquitted at trial.

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Wednesday round-up

By on Sep 20, 2017 at 7:15 am

Yesterday the Senate confirmed Noel Francisco as solicitor general by a vote of 50-47. Amy Howe has this blog’s coverage, which first appeared at Howe on the Court. Additional coverage comes from Ryan Lovelace in The Washington Examiner, Alex Swoyer in The Washington Times and Jessie Kokrda Kamens at Bloomberg Big Law Business.

At the Associated Press, Mark Sherman reports that although “President Donald Trump’s travel ban offers the Supreme Court the chance to make a major pronouncement on the president’s power over immigration, … the case also could vanish into the legal ether, and that may be what a majority of the court is hoping for.” At Take Care, Joshua Matz, introducing excerpts from an amicus brief filed in the entry-ban cases on behalf of a group of constitutional law scholars, argues that “the President’s public statements—before and after inauguration—about why he issued his executive order” constitute “admissions of anti-Muslim animus.”

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Petition of the day

By on Sep 19, 2017 at 8:20 pm

The petition of the day is:

17-278

Issue: Whether entities conducting foreclosure-related activities, including notifying borrowers that their homes will be sold unless payment is made, are subject to the Fair Debt Collection Practices Act’s general restrictions on “debt collectors.”

By a vote of 50-47 that broke down almost completely on party lines, the Senate today confirmed Noel Francisco to serve as the solicitor general, the government’s top lawyer in the Supreme Court. Francisco’s confirmation comes less than two weeks before the court’s new term is scheduled to start, with a number of important cases – ranging from the challenge to the Trump administration’s March 6 executive order, often known as the “travel ban,” to a dispute over the right of employees to pursue work-related claims against their employers as a group – on the docket for October.

Even before President Donald Trump nominated him to serve as solicitor general, Francisco was well known in the Washington legal community. A former clerk to the late Justice Antonin Scalia, Francisco served in the George W. Bush administration before going to the Washington office of Jones Day. While at that firm, he argued in the Supreme Court on behalf of (among others) former Virginia governor Robert McDonnell and the Little Sisters of the Poor.

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Tuesday round-up

By on Sep 19, 2017 at 7:08 am

In The National Law Journal (subscription or registration required), Tony Mauro highlights an amicus brief filed “on behalf of a group of ‘cake artists’ across the country” in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which stems from a baker’s refusal to create a wedding cake for a same-sex couple; the brief “contains roughly three dozen photos of luscious wedding and other special-occasion cakes, ranging from one that looks like a silver pot brimming with crawfish waiting to be boiled, to a ‘Pistol Pete’ cake for a couple who first met at Oklahoma State University.” Garrett Epps discusses the case at The Atlantic, observing that the federal government, in its amicus brief filed in support of the baker relying on the First Amendment’s speech clause, “asks [for] a constitutional exemption to civil-rights laws regardless of the underlying motive.” At Dorf on Law, Eric Segall argues that the baker’s “speech claims cannot be satisfactorily resolved on the present record, and therefore the Court should not resolve [them].”

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Petition of the day

By on Sep 18, 2017 at 8:20 pm

The petition of the day is:

17-270
Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.

Issue: Whether, under the Speedy Trial Act, time engaged in a plea negotiation that does not result in a finalized plea agreement is automatically excludable as “other proceedings concerning the defendant” under 18 U.S.C. § 3161(h)(1), as four circuits hold; or whether such time is excludable only if the district court makes case-specific “ends of justice” findings under 18 U.S.C. § 3161(h)(7), as four other circuits hold.

 
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