Editor's Note :

Editor's Note :

On Monday at 9:30 a.m. we expect the Court to issue orders from the October 17 Conference; we do not expect the Justices to issue any decisions on the merits.

“My colleagues are invisible this evening and I’ve been promoted, apparently,” Justice Breyer quipped from the middle seat on the bench Thursday evening. The Associate Justice was occupying the Chief Justice’s place in the service of his role for the evening: playing Chief Justice John Marshall in the Supreme Court Historical Society’s reenactment of the oral arguments in the historic 1819 case McCulloch v. Maryland.  

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Posted in Everything Else

Petition of the day

By on Oct 16, 2014 at 10:10 pm

The petition of the day is:


Issue: Whether, for purposes of a claim under Section 11 of the Securities Act of 1933, a plaintiff must plead that a statement of opinion not only contains false statements of material facts or omits material facts required to make the statements in the registration statement not misleading, but also that the speaker actually knew that the statements were false or misleading, even though the Court has held, in Ernst & Ernst v. Hochfelder, that under § 11 “the issuer of the securities is held absolutely liable,” without regard to fault.

UPDATE Friday a.m.  A reply brief was filed late Thursday by challengers to the Texas law.  It can be read here.  This post now includes a link to the state’s opposing brief, as filed Thursday evening.


Accusing some of the challengers to Texas’s voter ID law of rushing their case to an early trial to create an artificial “emergency,” state officials urged the Supreme Court on Thursday afternoon to leave that law in operation through this year’s general election — with early voting starting next Monday.

The law, the state’s legal response said, has been in operation for fifteen months, which was the status quo that a federal judge in Corpus Christi disturbed when she barred enforcement of the law last week, just nine days before voting was to begin.  The judge, the state argued, should have held off with her decision until after the elections this November.

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Vowing to come back soon with a plea for the Supreme Court to take on the basic constitutional issue of state power to ban same-sex marriages, state officials in Alaska on Thursday asked the Court in the meantime to delay lower court orders that would allow such marriages beginning on Friday.

The application (Parnell v. Hamby, docket 14A413) seeks a postponement pending final action in the U.S. Court of Appeals for the Ninth Circuit, where the state has filed an appeal.   The request was filed with Justice Anthony M. Kennedy, who handles emergency legal pleas from the geographic area of the Ninth Circuit, which includes Alaska.  Kennedy can act on his own, or refer the request to the full Court.

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The Republican River


All the rivers run into the sea;

Yet the sea is not full;

Unto the place from whence the rivers come,

Thither they return again.

–Ecclesiastes 1:7 (KJV)



On Tuesday, the Court heard arguments in an original jurisdiction dispute between Kansas, Colorado, and Nebraska over flows of a common river: the Republican River. After the states disputed the terms of their 1943 compact, they enacted a 2003 settlement stipulation. When the parties confronted a breach by Nebraska and a dispute over the water supply models they used to calculate Nebraska’s share, they reached an impasse. Kansas exercised its veto power, sending the dispute first to arbitration, then the Special Master and to the Supreme Court. Continue reading »

Relist Watch

By on Oct 16, 2014 at 10:57 am

John Elwood reviews Tuesday’s relisted cases.

Though we’re just a week into the new Term, OT2014 has already had more than its share of headlines, with the Justices issuing a slew of emergency orders on hot topics ranging from gay marriage to voting rights to abortion. But those faded into insignificance Wednesday as the Court took up the controversial issue of teeth whitening, with the Nine debating whether strips, gels, or trays were the best way to get their ivories just the right shade of Biden. The magic number for adult teeth may be thirty-two, but the magic number for relists this week is the almost manageable number of eleven. Relist Watch will now pause for three minutes and thirty-seven seconds while you watch that last link.     Continue reading »


At its Conference on October 17, 2014, the Court will consider petitions seeking review of issues such as the standard of review for exhaustion under the Prison Litigation Reform Act, the admissibility of lay testimony that is based on specialized knowledge, and proof of causation in a prosecution for insider trading.

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 Oct 16, 2014 at 6:12 am

Yesterday the Court heard oral arguments in the patent procedure case Teva Pharmaceuticals USA v. Sandoz, Inc. Lyle Denniston covered the oral argument for this blog. At Written Description, Lisa Larrimore Ouellette provides her “thoughts about the leaning of each Justice,” while Irena Royzman analyzes the arguments in the case for Law360 (registration or subscription required).  At ISCOTUSnow, Edward Lee predicts the winner of the oral argument in both of yesterday’s cases based on the number of questions for each side at the oral argument.  Continue reading »

Posted in Round-up

Event announcments

By on Oct 16, 2014 at 12:05 am

Today at 1 p.m. the State and Local Legal Center will host a preview of the Court’s Term focusing on cases that relate to state and local government. The webinar is free; register here.

On November 13 Bloomberg BNA will host a day-long conference on the Court’s impact on patent enforcement at Wiley Rein LLP in Washington, DC. More information is available here.

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