Wednesday round-up

By on Apr 16, 2014 at 7:32 am

Briefly:

  • At Reason.com, Damon Root responds to the argument by retired Justice John Paul Stevens, made in his new book, that the Second Amendment should be rewritten to provide that “the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”  Root argues that, although “Stevens would rewrite the Constitution in order to give lawmakers free rein to enact prohibitory gun control measures,” “the whole point of the Bill of Rights is to place certain liberties beyond the reach of lawmakers. That means the judiciary often has no choice but to ‘curtain the legislative power’ and strike down overreaching statutes.”
  • In USA Today, Richard Wolf previews next week’s oral argument in Republic of Argentina v. NML Capital, in which the Court will consider the extent to which Argentina’s creditors can go after the country’s assets to compensate them for Argentina’s default on bonds that it issued.
  • At the Legal History Blog, Dan Ernst discusses the list of docket books released by the Court’s Office of the Curator, as well as the rules governing public access to those books.

Remember, we rely on our readers to send us links for our round-up.  If you have a recently published article, post, or op-ed about the Supreme Court that you’d like us to consider for the round-up, please send it to roundup [at] scotusblog.com.  Thank you!  

 
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Petition of the day

By on Apr 15, 2014 at 10:17 pm

The petition of the day is:

T-Mobile South, LLC v. City of Roswell
13-975

Issue: Whether a document from a state or local government stating that an application has been denied, but providing no reasons whatsoever for the denial, can satisfy the Communications Act’s “in writing” requirement.

Civic groups, lawmakers, and individuals who believe that the Constitution requires majority rule in Congress failed in their challenge to Senate filibuster rules, as a federal appeals court decided on Tuesday that they had sued the wrong targets.  The right target, it said, would be the Senate itself.  That leaves one problem: that chamber is probably shielded by constitutional immunity.

In a decision by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, the challenge was blocked because the court lacked any power to decide it.  Those who sued could not show that they had a right to sue, because they were suing individuals who did not cause the failure of legislation that they favored.  The cause of injury, if any, the panel said, was the Senate itself, and it was not sued.

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It has to be galling for the company famed for its longstanding “It’s the Real Thing” advertising campaign to stand in the Supreme Court offering technical defenses for an outrageously misleading product name, but there we have it.  POM Wonderful v. Coca-Cola involves a Coca-Cola product bearing an emphatic “Pomegranate Blueberry” label, which consists of about 99% apple and grape juice, 0.3% pomegranate juice, and 0.2% blueberry juice. POM grows pomegranates and sells products that are predominantly pomegranate juice.  It filed suit against Coca-Cola, contending that Coca-Cola’s labeling of the “Pomegranate Blueberry” product is so misleading that it violates the Lanham Act.

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Capture

In this five-part interview, Orin Kerr of the George Washington University Law School discusses his background in mechanical engineering and the law; clerking for Justice Anthony M. Kennedy and Judge Leonard I. Garth of the Third Circuit; working in the Computer Crime and Intellectual Property Section of the Department of Justice; and teaching law. Kerr talks about how the Court considers cases, understands legal principle and contends with changing technology; the importance of predictability in law; the Court’s institutional position; and the role of politics in understanding the Court and its membership.

“One thing that I didn’t appreciate until I was a law clerk was the extent to which the Justices are generalists.  . . . You just sort of imagine that they have . . . clear agendas and a sense of, ‘I’m going from here to here to here.’ That’s not generally the case. That’s not the norm. The norm is that they’re generalist Justices.”

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Tuesday round-up

By on Apr 15, 2014 at 7:57 am

Briefly:

  • The Washington Legal Foundation previews next week’s oral arguments in CTS Corporation v. Waldburger, in which the Court will consider whether CERCLA preempts state statutes of repose in a case by property owners who are seeking compensation for damage that they allege stems from the dumping of toxic chemicals.
  • Among the cases that the Justices are scheduled to consider at their Conference on Friday is the gun rights case Drake v. Jerejian; Richard Wolf of USA Today reports on the case and on the recent proposal by retired Justice John Paul Stevens to rewrite the Second Amendment.
  • At his blog for Roll Call, David Hawkings previews next week’s oral arguments in Susan B. Anthony List v. Driehaus, in which the Court will consider a First Amendment challenge to an Ohio law that criminalizes false political statements.
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Petition of the day

By on Apr 14, 2014 at 10:12 pm

The petition of the day is:

Derr v. Maryland
13-637

Issue: Whether the Sixth Amendment permits the state’s expert witness to present to a jury the results of forensic tests that she neither performed nor witnessed as substantive evidence to support her conclusion that petitioner was the source of DNA evidence, when the state does not call the analysts who performed the tests as witnesses or show that they are unavailable and previously subject to cross-examination.

Generic makers of a lower-priced version of a highly popular drug for treating multiple sclerosis asked the Supreme Court on Monday to allow them to start selling their product next month.  However, if they are kept off of the market by court order and not allowed to compete for more than a year, they asked that the brand-name company, Teva Pharmaceuticals, USA, be required to post a bond that apparently could run into the hundreds of millions of dollars.

The generic firms — Sandoz Inc., Momenta Pharmaceuticals, Inc., Mylan Pharmaceuticals, Inc., and Natco Pharma Ltd. — filed their opposition to a plea by Teva that seeks to block the generic alternatives of its drug Copaxone, at least while the Supreme Court moves ahead with review of a pending appeal by Teva seeking to revive its key patent on that drug (Teva Pharmaceuticals USA v. Sandoz).

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Event announcement: New York City

By on Apr 14, 2014 at 4:08 pm

On April 22, at 6:30 p.m., New York University will host a symposium on the Affordable Care Act at the Global Center for Academic and Spiritual Life.  Susan Herman, president of the American Civil Liberties Union, will give the keynote address; other panelists will include the blog’s own Kevin Russell.  More information is available here.

 
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A federal judge in Cincinnati, broadening an earlier ruling in favor of same-sex marriage, ruled on Monday that the state of Ohio must give full marital rights to gay and lesbian couples who were or will be married in other states.  The ruling, the judge stressed in a forty-five-page decision, does not require Ohio to allow new marriages of same-sex couples living in the state.

U.S. District Judge Timothy S. Black said he would put his ruling temporarily on hold, until he can decide on whether to delay it further during any appeal by Ohio officials.  But he said he was not inclined to delay applying the ruling to the four couples who brought the challenge, noting that some of them are about to have babies born, or have other “time-sensitive concerns.”

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