Editor's Note :

Editor's Note :

On Monday at 9:30 a.m. we expect orders from the April 24 Conference. We expect one or more opinions in argued cases at 10 a.m. on Wednesday.

Petition of the day

By on Apr 23, 2015 at 10:05 pm

The petition of the day is:


Issue: Whether the use of a firearm and handcuffs during an investigative stop of an individual not suspected of any crime exceeds the bounds of a permissible Terry v. Ohio stop where their use is justified by officers' suspicions about a different individual.



Kingsley v. Hendrickson will be the Court’s next word on the law of excessive force. The case focuses on the relatively narrow question of what should happen when pre-trial detainees bring excessive-force claims against jail officers, but it’s impossible for the Court to answer that question without thinking about excessive force more broadly. In short, the issue before the Court is whether excessive-force claims brought by pre-trial detainees should be governed by the standard applicable to free people on the street, or instead by a standard like the one applicable to convicted criminals in prison.

Back in 2010, petitioner Michael Kingsley was arrested on a drug charge and detained in a Wisconsin jail pending trial. One day, a jail officer noticed that a piece of paper covered a light fixture in Kingsley’s cell, creating fire and visibility issues. Jail officers asked Kingsley to remove the paper and then to leave his cell, but Kingsley refused. This led the officers to handcuff Kingsley and forcibly remove him from his cell, ultimately placing him facedown on a concrete bunk in another room. At that point, the officers claim that Kingsley resisted their efforts to remove the handcuffs, prompting them to taser Kingsley for five seconds and possibly use other force as well.

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Bath saltsTuesday’s argument in McFadden v. United States was conducted at such a high level of abstraction that it is hard to know how it will translate into specifics in trial courts and real-world cases. What was clear is that the Court will reverse and remand, likely for a new trial based on clearer jury instructions regarding the requisite mens rea in federal drug cases. But it also seemed to be clear that the government is asking for a general rule far broader than the Court is likely to endorse. Ultimately this is a case where we have to wait for the opinion to know more precisely what proper jury instructions should specifically say. Continue reading »


In United States v. Wong, decided together with United States v. June, the Court concluded, yet again, that a statute of limitations is a “claim-processing rule” and subject to equitable tolling, rather than a limit on the court’s adjudicative jurisdiction which allows for no tolling. But because these cases involved the Federal Tort Claims Act and waiver of federal sovereign immunity, it produced a five-to-four split, unusual for the Court’s recent, generally unanimous jurisdictionality jurisprudence.

Although June and Wong were not consolidated, the United States filed substantially identical briefs in both cases and everyone agreed that the same arguments applied in both and that the outcomes of both must necessarily be the same. At issue in Wong’s case was a wrongful imprisonment claim arising from her detention by the INS in 1999; she failed to file the claim in federal court within six months after the INS had denied her administrative complaint. Jones’s case involved a wrongful death action and a claim that the Federal Highway Administration had approved the installation of median crash barriers that had never been properly crash tested; the plaintiff filed the administrative claim with the FHWA more than two years after the fatal car accident. The Ninth Circuit had held that neither claim was necessarily untimely because both limitations periods were potentially subject to equitable tolling. Continue reading »

Thursday round-up

By on Apr 23, 2015 at 6:37 am

Yesterday the Court heard oral argument in Horne v. Department of Agriculture, a case in which the Justices are considering the Takings Clause and the government’s regulation of the raisin market.  Lyle Denniston covered the oral argument for this blog, with other coverage coming from Jess Bravin for The Wall Street Journal, Jeremy Jacobs of Greenwire, and Jaclyn Belczyk of JURIST.  Commentary comes from Ruthann Robson at the Constitutional Law Prof Blog.  At this blog, Mark Walsh provides a “view from the Courtroom” during yesterday’s arguments, while at ISCOTUSnow Edward Lee predicts the winner in the case based on the number of questions for each side. Continue reading »

Posted in Round-up

Petition of the day

By on Apr 22, 2015 at 10:15 pm

The petition of the day is:


Issue: Whether Item 303 of Regulation S-K forms the basis for a duty to disclose otherwise material information for purposes of an omission actionable under Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 as the Second Circuit recently held in direct conflict with the Ninth Circuit's holding in this case.


Oral arguments are winding down for the Term, with the major cases on same-sex marriage and death penalty protocols to close out the season next week.

Today, though, in Horne v. Department of Agriculture, about the government’s regulation of the raisin market, we’ll get a New Deal history lesson, go harvesting for Maryland oysters, check in on drought conditions in California, and have a brief reference to that 1980s commercial and pop culture hit, the California Raisins.

All that flowed naturally in a sometimes fun hour about whether a federal agricultural “marketing order” for raisins that requires the transfer of a portion of a raisin crop to the government amounts to a taking that requires just compensation. Continue reading »

Re-Argument analysis: The votes are not there to sustain the residual clause

When the residual clause of the federal Armed Career Criminal Act (“ACCA”) first came before the Court in 2007 in James v. United States, Justice Scalia called it “shoddy draftsmanship” and a “drafting failure” of Congress.  In four subsequent cases, all members of the Court expressed their frustrations with the statute, and in 2011, in Sykes v. United States, Justice Scalia flatly called for the Court to strike it down as unconstitutionally vague.  Yet despite these strong criticisms from the Third Branch, Congress has not modified the statute.  So yesterday, at a re-argument of Johnson v. United States for which the Court had expressly directed the parties to brief the constitutional vagueness issue, Justice Scalia said this:

“If Congress hasn’t done it” — after almost a decade of confusion — then “it seems to me that our job is over.”

The impression from a review of Monday’s argument transcript is that Justice Scalia is correct.  While guessing about results from oral argument is always risky, it seems there may be only one or two votes to not strike the residual clause down.  Indeed, depending on how Justice Scalia writes the opinion (yes, I am guessing even at the assignment), all the Justices may just go along and restrict their analysis, and qualms, to this one, unique case only.

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The Supreme Court left the bench Wednesday morning emotionally drawn toward ending an old New Deal program of propping up farm prices, but unsure about how to contain the result so as not to scuttle  more than that one scheme.  Imagery, of an overbearing federal government, far outran a keen appreciation of the actual facts on how that one program actually works, so the constitutional contest seemed entirely unequal.

At one point during the oral argument in Horne v. Department of Agriculture, Justice Antonin Scalia compared the New Deal era’s “central planning” to what Russia’s communist regime “tried for a long time.” That was more extreme than other comments, but it only made the prevailing sentiment more vivid.  Chief Justice John G. Roberts, Jr., conjured up a scene of a government truck coming in “the dark of night” to scoop up a farmer’s produce and haul it off — something that never happens under the program at issue.

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Good fences make good neighbors – but the boundaries between federal and state regulation of energy markets have begun to blur.

In ONEOK v. Learjet, decided yesterday with little fanfare, the Court held that field preemption under the Natural Gas Act (NGA) does not extend to state antitrust suits aimed at pipelines’ price manipulation.

This case presented a thorny question under energy law statutes and longstanding precedents because the alleged market manipulation affected both wholesale sales, the traditional purview of federal regulators, and retail sales, which the NGA reserves for state regulation. Although the opinion was not unanimous, the case signals a willingness by most of the Justices to tolerate some degree of concurrent federal/state jurisdiction under federal statutes concerning the regulation of energy markets. Continue reading »

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