On Wednesday, the Supreme Court will conclude its penultimate week of oral argument for the October Term 2013 by hearing an environmental case which poses a question of statutory interpretation that may not be as simple as it first appears.  When Congress specified in Section 309 of CERCLA (the Comprehensive Environmental Response, Compensation, and Liability Act) that state “statutes of limitations” cannot bar toxic tort suits before plaintiffs discover that they have been harmed, did it also intend to preempt what have come to be known as “statutes of repose”?  John J. Korzen, director of the Appellate Advocacy Clinic at the Wake Forest University School of Law, will make his Supreme Court debut in CTS Corp. v. Waldburger, arguing on behalf of a group of two dozen homeowners who discovered that their well water was contaminated by toxic chemicals decades after an industrial facility ceased operations.  Because North Carolina law specifies that no lawsuits can be brought more than ten years after the defendant’s last action, a trial court dismissed the homeowners’ action.  However, a team of clinic students convinced a divided panel of the Fourth Circuit to reinstate the lawsuit by arguing that Section 309’s preemption extends to the North Carolina law.  Opposing the clinic are petitioner CTS Corporation, the alleged source of the contamination, and the federal government, which seeks to use the North Carolina law in another case to avoid liability to families of military personnel exposed to contaminated drinking water at Camp Lejeune. Continue reading »

We are live blogging this morning as opinions are issued. Please click this link to be taken to the live blog page.

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Event announcement

By on Apr 22, 2014 at 9:00 am

On the morning of May 1, Constitutional Accountability Center will host a “Home Stretch at the Supreme Court” panel at the National Press Club, reviewing the Term’s decisions and the blockbusters to come.

The panel will be moderated by Slate’s Dahlia Lithwick and will feature Erin Murphy, who recently argued McCutcheon v. FEC, Marty Lederman of Georgetown Law, and CAC’s Elizabeth Wydra.  More information is on CAC’s website.

 

 
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Tuesday round-up

By on Apr 22, 2014 at 7:11 am

Today the Court will hear oral arguments in two highly anticipated cases.  In Susan B. Anthony List v. Driehaus, the Court will consider a First Amendment challenge to an Ohio law that criminalizes false political statements. Lyle Denniston previewed the case for this blog.  Other coverage comes from Katie Barlow and Nina Totenberg at NPR, while in his “Drama at the Court” series for ISCOTUSnow, Christopher Schmidt looks back at United States v. Alvarez, a recent case in which the Court struck down criminal penalties for lying about military honors.  In American Broadcasting Companies v. Aereo, the Court will consider whether Aereo’s streaming of broadcast television programs over the Internet violates federal copyright laws.  Lyle Denniston previewed the case for this blog, while I did the same in Plain English and Kali Borkoski added a discussion (audio) with some of the players in the case.   Other coverage of the Aereo case comes from Nina Totenberg at NPR (audio), Bloomberg TV, and Edward Lee at ISCOTUSnow (video).  Continue reading »

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Petition of the day

By on Apr 21, 2014 at 10:16 pm

The petition of the day is:

US Foods, Inc. v. Catholic Healthcare West
13-873

Issue: (1) Whether contract-expectation damages are a permissible remedy in a civil RICO action based on alleged fraud, and if so, whether such damages are available even where any expectation was created only by the alleged fraudulent conduct; (2) whether but-for causation in a civil RICO class action may be satisfied by a class-wide presumption of reliance on alleged fraudulent conduct in the absence of any individualized proof that any member of the class actually relied on that conduct; and (3) whether a nationwide class asserting state-law claims under multiple state laws may be certified under Rule 23(b)(3) of the Federal Rules of Civil Procedure in the absence of any showing that the state laws at issue are uniformly interpreted and applied.

Click below to listen to Chet Kanojia, Aereo’s founder and CEO, Brenda Cotter, Aereo’s General Counsel, and former Acting Solicitor General Neal Katyal, advisor to the broadcasters, discuss the upcoming oral argument. Continue reading »

For those of us who grew up adjusting the rabbit ears on our seventies-era televisions (and having to get up to change the channel to one of the other four or five available stations – no remote controls!), the service offered by Aereo, Inc., is nothing short of miraculous.  For just eight dollars a month, you get the ability to start watching a TV program – say, the Super Bowl – live on your iPhone while you are out of your house.  When you get home, you can pick up seamlessly where you left off on your television or desktop computer.  Or, you can record the entire program on a remote DVR assigned to you and watch the whole thing later on.

What could possibly be wrong with Aereo’s business model?  For ABC and the rest of the broadcast television industry, pretty much everything.  In their view, Aereo is blatantly violating federal copyright laws (and possibly jeopardizing the entire broadcast industry) by streaming live TV over the Internet without paying the networks for the right to do so.  Aereo counters that everything it does is completely legal:  the TV programs that it makes available are already broadcast for free over the public airwaves; Aereo is just making it easier and more efficient for its subscribers to watch those programs.  Tomorrow, the Supreme Court will hear oral arguments from both sides of the dispute, with a decision expected by summer.  Here’s the lowdown on American Broadcasting Companies, Inc. v. Aereo, Inc., in Plain English.  Continue reading »

Picking up on thoughts from a lower federal court judge, Supreme Court Justice Stephen G. Breyer on Monday sketched the outlines of an issue that could be the basis for a new challenge to long-term detention by those held at Guantanamo Bay, Cuba.  The thrust of it would be an individual’s claim that he actually never engaged in armed hostilities against the U.S. or its allies overseas.

Breyer spoke out in a separate opinion, representing so far only his own views, as the Court denied review of the case of a Yemeni national who has been held at Guantanamo for nearly twelve years; Abdul al Qader Ahmed Hussain was captured in Pakistan in March 2002 when he was eighteen years old.  (The case was Hussain v. Obama.)

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The Supreme Court spent most of a half-hour on Monday staying entirely away from a pitfall in the law that governs debt collection, but then that trap suddenly opened widely, and nearly swallowed the case of Republic of Argentina v. NML Capital Ltd.  What made the difference? The Court began worrying a lot about the identity of the debtor — the sovereign nation of Argentina.

To a remarkable extent, this was an argument in which the front half and the second half did not seem to be on the same page.  In the end, though, it appeared that the second part might well turn out to be controlling, and Argentina could get some special treatment as a debtor — because it is a nation, not an ordinary debtor.

Continue reading »

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