Thursday round-up

By on Apr 10, 2014 at 9:59 am

Briefly:

  • Richard Wolf of USA Today reports on the current state of play in the challenges to state bans on same-sex marriage, observing that “[t]rying to figure out which will be the case eventually granted by the Supreme Court has become a parlor game in legal circles.” Continue reading »
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Petition of the day

By on Apr 9, 2014 at 10:12 pm

The petition of the day is:

Simmons v. Sabine River Authority of Louisiana
13-815

Issue: Whether the Federal Power Act (FPA) preempts petitioners’ property damage tort and takings claims caused by the operation of the licensee of a Federal Energy Regulatory Commission licensed dam project, where the provisions of the FPA have explicitly saved and reserved such claims to the property owners.

In a case that college sports leaders expect to go to the Supreme Court, Northwestern University on Wednesday asked the National Labor Relations Board to deny undergraduate athletes the status of employees with a right to join a labor union and bargain for salaries and other benefits.  That filing is here.

The university’s appeal to the Board challenged a March 26 decision by a regional NLRB official that Northwestern must treat its football players as employees and hold an election on whether they want to unionize.  That ruling, the university said, “set out to alter the underlying premise upon which varsity sports is based” — that students go to college to be educated, not to work for a living.

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Life as a law clerk for Justice Anthony M. Kennedy and Judge Leonard I. Garth of the U.S. Third Circuit.

In this five-part interview, Orin Kerr of the George Washington University Law School discusses his background in mechanical engineering and the law; clerking for Justice Anthony M. Kennedy and Judge Leonard I. Garth of the Third Circuit; working in the Computer Crime and Intellectual Property Section of the Department of Justice; and teaching law. Kerr talks about how the Court considers cases, understands legal principle and contends with changing technology; the importance of predictability in law; the Court’s institutional position; and the role of politics in understanding the Court and its membership.

“One thing that I didn’t appreciate until I was a law clerk was the extent to which the Justices are generalists.  . . . You just sort of imagine that they have . . . clear agendas and a sense of, ‘I’m going from here to here to here.’ That’s not generally the case. That’s not the norm. The norm is that they’re generalist Justices.”

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750px-Utah_State_Prison_Wasatch_Facility[1]

Legal scholars spend lots of time parsing Supreme Court opinions, but rarely stop to consider whether the Court’s decisions are implemented as intended.  In a recent essay, Cara Drinan takes a hard look at state practices in the wake of the Supreme Court’s blockbuster decisions in Graham v. Florida and Miller v. Alabama.  In Graham, the Court held that the Eighth Amendment prohibits courts from sentencing a juvenile to life without parole for non-homicide offenses, and in Miller the Court declared that even juveniles convicted of homicide must receive an individualized sentencing hearing at which their youth and other mitigating factors are taken into account before than can be sentenced to life without parole.  Drinan’s essay examines the states’ reactions to these decisions and concludes that many states continue to sentence juveniles to thirty or more years in jail, even for non-homicide offenses, and mostly without the sort of individualized assessment the Court concluded was constitutionally required.

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Wednesday round-up

By on Apr 9, 2014 at 8:02 am

It was one week ago today that the Court issued its decision in McCutcheon v. Federal Election Commission, striking down the aggregate limits that federal law imposed on contributions to candidates for federal office, political parties, and political action committees, but the ruling still dominates coverage of, and commentary on, the Court.  In the Daily Journal (via his Election Law Blog), Rick Hasen discusses the solo concurring opinion filed in the case by Justice Clarence Thomas, while in a post at The Guardian Hasen argues that “[i]t’s about time for Congress to pass some new laws protecting voting rights, and it’s high time . . . for us to dare the supreme court to strike even more of them down.”  Also at Hasen’s Election Law Blog, Brianne Gorod contends that the Chief Justice’s “attempt to portray his decision in” the case “as minimalist actually shows just how far from minimalist it is.”  At Hamilton and Griffin on Rights, Erwin Chemerinsky predicts that “the Court’s decision in McCutcheon portends much more drastic changes in campaign finance law.” And at Angry Bear, Beverly Mann has three posts related to the decision – here, here, and here. Continue reading »

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Petition of the day

By on Apr 8, 2014 at 10:21 pm

The petition of the day is:

Arizona v. Valle del Sol, Inc.
13-806

Issue: (1) Whether respondents have Article III standing and have established the requisite imminent risk of irreparable harm to obtain an injunction of Ariz. Rev. Stat. § 13-2929, which makes it unlawful for a person to knowingly “(1) transport or move or attempt to transport or move the alien in Arizona in furtherance of the alien’s unlawful presence in the United States; (2) conceal, harbor, or shield or attempt to conceal, harbor, or shield the alien from detection in Arizona; or (3) encourage or induce the alien to come to or live in Arizona”; (2) if respondents have standing, whether Ariz. Rev. Stat. § 13-2929 is void for vagueness even though its meaning is commonly understood; and (3) whether the court of appeals erred in finding that states are precluded from enacting any law that restricts a person from furthering or exploiting another’s unlawful presence in the United States.

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From mechanical engineering to the law; not being fired by the Department of Justice; and the importance of technical knowledge to law and technology.

In this five-part interview, Orin Kerr of the George Washington University Law School discusses his background in mechanical engineering and the law; clerking for Justice Anthony M. Kennedy and Judge Leonard I. Garth of the Third Circuit; working in the Computer Crime and Intellectual Property Section of the Department of Justice; and teaching law. Kerr talks about how the Court considers cases, understands legal principle and contends with changing technology; the importance of predictability in law; the Court’s institutional position; and the role of politics in understanding the Court and its membership.

“One thing that I didn’t appreciate until I was a law clerk was the extent to which the Justices are generalists.  . . . You just sort of imagine that they have . . . clear agendas and a sense of, ‘I’m going from here to here to here.’ That’s not generally the case. That’s not the norm. The norm is that they’re generalist Justices.”

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Mt. Soledad memorial

The Mt. Soledad memorial

The Obama administration told the Supreme Court on Monday that it objects strongly to a federal judge’s order that would require the government to take down a Christian cross that stands on a hill above San Diego, but said the Court should not get involved in the controversy until there is a final ruling in lower courts.

When the proper time comes, the new brief said, the government will ask the Justices to overrule a ruling by the U.S. Court of Appeals for the Ninth Circuit more than three years ago that the Mount Soledad cross represents a violation of the Constitution’s religion clause.  It was in reaction to the Ninth Circuit’s ruling that a federal judge reluctantly ruled last December that the cross had to come down, as “the only remedy” for that violation.  The judge’s order is on hold for the time being

Defenders of the cross have asked the Court to step in now, without waiting for the Ninth Circuit’s further review, and overturn the Circuit Court’s decision and, with it, the judge’s order to remove the Mount Soledad monument.  That is the request the Obama administration refused to support at this time, in the case of Mount Soledad Memorial Association v. Trunk. Continue reading »

With the conclusion of March Madness comes a new drama for April – the 2014 Supreme Court Challenge, hosted by Bloomberg Law and SCOTUSblog.  Last week, teams of law students made predictions for the outcomes in six merits cases and six cert. petitions to be considered this month, and now we wait to see what happens.  Here are the cases for this year’s competition and how the teams predict they will turn out.

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