Editor's Note :

Editor's Note :

The Court has not announced its plans for next week regarding the release of opinions, if any. At this time of the Term, however, it would be unusual if there were none.

It looks like the Justices are firmly committed to deciding Tibble v. Edison International, even though the parties now agree on the big issue on which the Justices granted review: whether the fiduciaries of an ERISA plan have a continuing duty of prudence that requires periodic monitoring of investments, or is the duty instead measured at the single point in time when the investment is made. And there’s little doubt that the Court will hold that there is such a duty, because Jonathan Hacker – representing Edison International, the employer – readily conceded its existence. Continue reading »

Thursday round-up

By on Feb 26, 2015 at 9:48 am

Yesterday the Court heard oral arguments in EEOC v. Abercrombie & Fitch Stores, the federal government’s challenge to a retail store’s refusal to hire a Muslim teenager because she wore a headscarf.  Lyle Denniston covered the oral argument for this blog, and I did the same in Plain English.  Other coverage comes from Nina Totenberg of NPR, Jess Bravin of The Wall Street Journal, Richard Wolf of USA Today, and the BBC News, while at Education Week Mark Walsh looks at the case’s implications for schools.  At Fivethirtyeight.com, Oliver Roeder tries to quantify the possible results in the case.  Commentary on the case comes from Marci Hamilton, who at Hamilton and Griffin on Rights suggests that, “whatever the Court does, employers and employees have good reason to demand clearer guidance from Congress.”    Continue reading »

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Petition of the day

By on Feb 25, 2015 at 10:20 pm

The petition of the day is:

14-720

Issue: Whether the Ninth Circuit erred by allowing school officials to prevent students from engaging in a silent, passive expression of opinion by wearing American flag shirts because other students might react negatively to the pro-America message, thereby incorporating a heckler's veto into the free speech rights of students contrary to Tinker v. Des Moines Independent Community School District, and the decisions of other United States courts of appeals.

Today the Court heard oral arguments in EEOC v. Abercrombie & Fitch Stores, in which the federal government is suing the retail giant for its refusal to hire Samantha Elauf, a Muslim teenager who wore a headscarf.  (I previewed the case in Plain English yesterday.)  After an hour of often spirited discussion, it wasn’t clear that there was a consensus for either side’s proposed rule.  But the government (and therefore Elauf) has reason to be optimistic, as several Justices seemed to coalesce around a rule that would give it much of what it is seeking.  Let’s talk about today’s oral arguments in Plain English. Continue reading »

Eric M. Fraser practices appellate, antitrust, and intellectual property law at Osborn Maledon, P.A.

State licensing boards composed of market participants do not enjoy automatic immunity from antitrust laws, the Supreme Court ruled on Wednesday. The decision in North Carolina Board of Dental Examiners v. Federal Trade Commission affirms the Fourth Circuit and deals a setback to an increasingly common form of regulation. Continue reading »

Analysis

In opinions using a boatload of fishing metaphors, a divided Supreme Court ruled on Wednesday that a federal criminal law against destroying corporate records cannot be used against a commercial fisherman for throwing undersized fish overboard to avoid prosecution.  The ruling split the Court’s nine Justices widely on the question of how judges should interpret federal laws.

In the four-one-four ruling in Yates v. United States, Justice Ruth Bader Ginsburg noted in the main opinion that the government had claimed that the 2002 law “covers the waterfront, including fish from the sea” — a sweep that the Court rejected.  Justice Elena Kagan, for the four dissenters, wrote that the other Justices had gone on a “fishing expedition” for support for the ruling, but the effort “comes up empty.”

(Art Lien)

Justice Ginsburg (Art Lien)

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Analysis

If it is true that lawyers can make a simple proposition into something bewilderingly complex, it may also be true that judges sometimes prefer the simple, and go with that instead.  Justice Samuel A. Alito, Jr., proved the latter point in an argument on Wednesday, and the Supreme Court might be well advised to turn to the page in the transcript where he did so, and make that its ruling in Equal Employment Opportunity Commission v. Abercrombie & Fitch.

Justice Alito (Art Lien)

Justice Alito (Art Lien)

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Today’s transcripts

By on Feb 25, 2015 at 12:30 pm

The transcript in EEOC v. Abercrombie & Fitch Stores, Inc. is here

The transcript in Baker Botts, L.L.P. v. ASARCO LLC is here.

Posted in Merits Cases
 
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When the government has a dog of a case, someone has to draw the short straw and argue it. In Henderson v. United States, Assistant to the Solicitor General Ann O’Connell drew that straw. It seems clear that the Court will side with petitioner Tony Henderson – a felon seeking the right to sell or otherwise dispose of firearms that he owns but can no longer legally possess. In offering concession after concession and various fallback options, the government offered a case study in controlled implosions.

(Art Lien)

Assistant to the SG Ann O’Connell (Art Lien)

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