Editor's Note :

Editor's Note :

On Monday the Supreme Court will release orders at 9:30 a.m. There is a possibility of opinions at 10 a.m. We will begin live-blogging at 9:25 a.m.

Scott Dodson is the Associate Dean for Research and the James Edgar Hervey Chair in Litigation at UC Hastings College of the Law.

The basic separation-of-powers model allocates lawmaking power to the legislative branch, enforcement power to the executive branch, and interpretive and adjudicative power to the judicial branch. But, of course, there are areas of the law in which these powers shift or overlap among the branches.

Court rulemaking is one of those areas. With few exceptions, Congress has the sole constitutional authority to make procedural law for the lower federal courts. In practice, though, things are more complicated. Because the judiciary’s expertise in court procedure exceeds the legislature’s, Congress has delegated its authority to make general rules of federal-court practice and procedure to the Supreme Court in a statute called the Rules Enabling Act. The REA prescribes some procedures for court rulemaking and delegates other rulemaking procedures to the Judicial Conference, which is a group of federal judges prescribed by statute.

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Wednesday round-up

By on May 16, 2018 at 7:27 am

Court-watchers continue to focus on Monday’s ruling in Murphy v. National Collegiate Athletic Association, in which the justices struck down the federal law that bars states from legalizing sports betting. Scott Bomboy covers the decision for Constitution Daily. For The Washington Post, Amber Phillips offers “a step-by-step rundown of key moments in the debate on gambling in America that got us to this monumental one.” For the Los Angeles Times, David Savage reports that the decision “trumpeted the independence of the states.” At The Economist’s Democracy in America blog, Steven Mazie calls it “a loss for the Trump administration,” which “would like to remove two … policies from the purview of state legislatures: the spreading legalisation of marijuana and ‘sanctuary city’ laws that partially shield undocumented immigrants from the reach of Immigration and Customs Enforcement.” At Medium, Daniel Hemel observes that “[n]ot only did the Supreme Court strike down the federal law at issue, … but it also appears to have invalidated a broad swath of congressional limitations on state tax authority. (Oh, and it also saved sanctuary cities.)” Additional commentary comes from Sam Kamin in an op-ed for The Hill, John Kindt in another Hill op-ed, Noah Feldman in an op-ed at Bloomberg, Mark Joseph Stern at Slate, and Ilya Somin at Reason’s Volokh Conspiracy blog. At Good Judgment, Ryan Adler “puts this as a win for the crowd,” noting that “forecasters held a tight range of a 75% to 80% chance that the Supreme Court would rule that Congress couldn’t prevent New Jersey from repealing its own state prohibitions on sports gambling.”

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Petition of the day

By on May 15, 2018 at 10:57 pm

The petition of the day is:

17-1438

Issues: (1) Whether a state court may impose onerous contractual obligations on a non-signatory to the contract by disregarding the full-disclosure requirements of federal bankruptcy law and foisting the undisclosed perpetual indemnity obligation of a Chapter 11 debtor upon an unknowing purchaser of related assets; and (2) whether boilerplate “assumed-unless-rejected” language in a bankruptcy reorganization plan renders an undisclosed executory contract assumed under 11 U.S.C. § 365.

The following is a series of questions posed by Ronald Collins to Adam Winkler on the occasion of the publication of Winkler’s book “We the Corporations: How American Businesses Won Their Civil Rights” (Liveright, 2018, $28.95, pp. 471).

Adam Winkler is a professor of law at the University of California at Los Angeles. His last book was “Gunfight: The Battle over the Right to Bear Arms in America” (W.W. Norton, 2011).

Welcome, Adam, and thank you for taking the time to participate in this question-and-answer exchange for our readers. And congratulations on the publication of your latest book.

* * *

Question: Your book offers a new wrinkle on the founding of America and the Jamestown story of 1607. Do tell.

Winkler: Americans celebrate the liberty-seeking Pilgrims, but the first permanent English colony in the New World was 13 years earlier in Jamestown, which was a corporate business venture. Indeed, the Virginia Company came to America to make money. The company also introduced democratic reforms, such as the first representative assembly, not in the spirit of popular sovereignty but to pursue profit.

Question: How do dissent in the colonies and the Boston Tea Party of 1773 fit into your narrative?

Winkler: The American Revolution was also in small part a revolt against the world’s most powerful corporation, the East India Company. When the company’s fortunes soured, the British government deemed the corporation too big to fail — and, as part of a massive bailout, gave the company for the first time the right to sell tea in the colonies without American middlemen. The Boston Tea Party was an uprising by merchants who, that night, went out to throw the East India Company’s tea overboard.

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Yesterday marked the 225th day of the 2017 Supreme Court term. The court compensated for a slow term so far with five new decisions. Even with these rulings — Murphy v. NCAA, Dahda v. United States, Byrd v. United States, United States v. Sanchez-Gomez and McCoy v. Louisiana — the court is still behind its output every other year under Chief Justice John Roberts. Counting the output from days since the first oral argument of the term seems the most appropriate way to normalize the court’s output rate across terms. This figure shows where the court stands now in terms of decision output and how this compares to all of the terms since 2005.

Click graph to enlarge.

The Supreme Court’s previous low count for opinion output after 225 days was in 2007, with 31 opinions.

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Tuesday round-up

By on May 15, 2018 at 7:19 am

Yesterday the Supreme Court made a dent in its backlog of decisions, issuing opinions in five cases. In Murphy v. National Collegiate Athletic Association, the court struck down the federal law that bars states from legalizing sports betting. Amy Howe has this blog’s opinion analysis, which first appeared at Howe on the Court. At The Hill, Lydia Wheeler reports that the decision “opens the door to legalized sports gambling nationwide.” Additional coverage comes from Pete Williams at NBC News, Kevin Daley at the Daily Caller, Adam Liptak and Kevin Draper for The New York Times, Richard Wolf for USA Today, Robert Barnes for The Washington Post, Lawrence Hurley at Reuters, Greg Stohr at Bloomberg, Peter Doocy for Fox News, Ariane de Vogue and Maegan Vazquez for CNN, David Savage for the Los Angeles Times, and Josh Gerstein and Ryan Hutchins at Politico, who report that “about 20 states have either enacted laws or introduced bill to legalize sports betting, all in anticipation of this moment.” At NPR, Nina Totenberg and others report that “[w]ith every player in the sports world seeing dollar signs, there is one problem player — the amateur athlete.” At Constitution Daily, Lyle Denniston writes that “[t]he decision … raised doubts about the Trump Administration’s power to compel states and cities to help enforce tight federal immigration restrictions – now being resisted by the so-called ‘sanctuary’ jurisdictions, and about the power of the federal government to stop states from allowing medical or even recreational use of marijuana.”

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Petition of the day

By on May 14, 2018 at 10:00 pm

The petition of the day is:

17-1320

Issues: (1) Whether a police officer who remains outside a suspect’s home violates the Fourth Amendment by arresting the suspect by show of authority without a warrant when the suspect is at the front door but has not stepped outside; and (2) whether New York’s persistent felony offender statute, which requires judicial fact-finding on the question whether an enhanced sentence will “best serve the public interest,” violates the Sixth Amendment’s jury-trial guarantee.

The Supreme Court’s brisk opinion in Dahda v. United States awarded the government yet another exclusionary rule victory, this time in the context of a statutory provision rooted in the Omnibus Crime Control and Safe Streets Act of 1968. The justices ruled unanimously (with Justice Neil Gorsuch recused) against a defendant’s request for suppression of evidence collected under a wiretap order that authorized surveillance outside the territorial jurisdiction of the district judge who issued the order. But while the court’s decision helpfully clarifies the law, it generally tries to avoid big questions, leaving deeper debates about statutory exclusionary rules for another day.

 

Justice Breyer with opinion in Dahda v. U.S. (Art Lien)

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Menu of today’s content

By on May 14, 2018 at 5:06 pm

Today the Supreme Court released orders and opinions in Murphy v. NCAADahda v. U.S.McCoy v. LouisianaByrd v. U.S. and U.S. v. Sanchez-Gomez. The transcript of today’s live blog of the announcements is available at this link. This post provides an overview of today’s case coverage.

11:31 a.m. (updated at 3:19 p.m.): Amy Howe analyzed the opinion in Murphy v. National Collegiate Athletic Association, in which the Supreme Court struck down a federal law that prohibited the states from legalizing sports gambling.

11:42 a.m. (updated at 4:18 p.m.): Amy Howe analyzed the opinion in McCoy v. Louisiana, in which the Supreme Court threw out the conviction and death sentence of a Louisiana inmate whose attorney had conceded the inmate’s guilt to the jury over the inmate’s explicit objection.

12:07 p.m. (updated at 5:03 p.m.): Amy Howe analyzed the opinion in Byrd v. United States, in which the Supreme Court ruled that a driver who has permission to use a rental car is generally entitled to the same protections under the Fourth Amendment as the driver who rented the car.

12:51 p.m.: Amy Howe reported on today’s orders, including the grants for next term in BNSF Railway Company v. Loos and Air and Liquid Systems Corp. v. Devries and the call for the views of the solicitor general in Osage Wind, LLC v. Osage Mineral Council.

2:39 p.m.: Howard Wasserman analyzed the opinion in United States v. Sanchez-Gomez, in which the Supreme Court held that an appeal involving a federal district-wide policy of shackling defendants during pretrial proceedings became moot when the defendants’ criminal cases ended before the appeals court could render a decision.

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In United States v. Sanchez-Gomez, Chief Justice John Roberts wrote today for a unanimous Supreme Court, holding in 12 straightforward pages that a challenge by several criminal defendants to a district-wide policy of shackling pretrial detainees was moot.

The U.S. District Court for the Southern District of California, at the suggestion of the U.S Marshal, adopted a district-wide policy allowing marshals to produce all in-custody pretrial defendants in full five-point restraints for most nonjury proceedings. In full restraints, a defendant’s hands are closely handcuffed together, these handcuffs are connected by a chain to another chain running around the defendant’s waist, and the defendant’s feet are shackled and chained together. Four defendants challenged the constitutional validity of their shackling and of the policy as a whole. They argued that they were bringing the challenges on behalf of themselves and similarly situated defendants. The district court denied their challenges. While the cases were on appeal to the U.S. Court of Appeals for the 9th Circuit, the four prosecutions were resolved, either via guilty plea or dismissal.

Chief Justice Roberts with opinion in U.S. v. Sanchez-Gomez (Art Lien)

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