Symposium: The mootness games

By on Jul 11, 2017 at 10:49 am

Leah Litman is an assistant professor at the University of California, Irvine School of Law. She signed an amicus brief that opposed the government’s stay applications to the Supreme Court.

Next term, the Supreme Court will hear argument in Trump v. International Refugee Assistance Project/Trump v. Hawaii. But it’s likely we’ve already heard the court’s last and only words (which were no words at all) on the merits. That’s because the case will likely be moot by the time the court hears argument in the fall, or reaches a decision. The most interesting part of the case may be how much the organizations that are involved in the case, and particularly the government, push the court to say otherwise, and to say something on the merits.

The mootness issue arises because of the temporary nature of the executive order that is at the heart of the case. The entry ban that the plaintiffs have challenged lasts a mere 90 days from its effective date, and the suspension of the refugee program that the Hawaii plaintiffs have challenged lasts a mere 120 days from its effective date. The cap on the refugee program, which the Hawaii plaintiffs also challenged, applies to fiscal year 2017, which ends on September 30, 2017.

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Petitions of the day

By on Jul 11, 2017 at 10:31 am

The petitions of the day are:


Issue: Whether a person who obtains an account holder’s permission to access a computer nevertheless “accesses a computer without authorization” in violation of the Computer Fraud and Abuse Act when he acts without permission from the computer’s owner.


Issues: (1) Whether the courts below erred by balancing the trademark likelihood of confusion factors as an issue of law rather than a question of fact, contrary to the Supreme Court’s analysis in Hana Financial Inc. v. Hana Bank and the majority of circuits; and (2) whether the U.S. Court of Appeals for the 6th Circuit erred by affirming summary judgment against petitioner where it applied the wrong standard of review for balancing the trademark likelihood of confusion factors.


Tuesday round-up

By on Jul 11, 2017 at 7:20 am


  • At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro and Frank Garrison urge the court to grant a cert petition challenging public-sector-union “agency fees,” which they maintain give non-union “workers a Hobson’s choice: Either sacrifice your First Amendment rights and fund political advocacy you may not like, or find other employment.”
  • At Coverage Opinions, Randy Maniloff interviews legendary First Amendment lawyer Floyd Abrams about, among other things, “Citizens United, the hugely controversial case on campaign finance which Abrams successfully argued before the Supreme Court.”
  • Constitution Daily commemorates the 149th anniversary of the 14th Amendment by looking at “10 historic Supreme Court cases about due process and equal protection under the law.”
  • At ACSblog, Bidish Sarma discusses Packingham v. North Carolina, in which the court held that a state-law ban on access by registered sex offenders to a wide range of websites violated the First Amendment, arguing that “the time has come to ask whether society’s ‘war’ on sex offenders who have already completed criminal sentences has gone too far.”

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In December 2015, the presidential campaign of then-candidate Donald Trump issued a statement calling for “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what’s going on.” Trump’s statement continued: “Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victim of horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect for human life.” Fifteen months later, on March 6, 2017, citing national security concerns, President Trump signed an executive order that ordered a freeze on new visas for travelers from six Muslim-majority countries and suspended travel by refugees into the United States. Two federal appeals courts blocked the Trump administration from implementing the ban, but on June 26 the Supreme Court stepped in. The justices not only agreed to review the lower courts’ rulings in October, when they return from their summer break, but they also allowed the federal government to put at least part of the ban into effect until they can rule on the federal government’s appeals.

Trump’s March 6 order was not the administration’s first effort to restrict travel to the United States by visitors from predominantly Muslim countries. On January 27, Trump signed an order that barred citizens from seven such countries – Iraq, Syria, Sudan, Iran, Somalia, Libya and Yemen – from entering the country and suspended the refugee program. That order led to confusion around the world, with some travelers stranded in airports after they were denied entry to the United States and others prevented from boarding planes overseas. The order also prompted legal challenges, and on February 3 a federal district judge in Seattle temporarily blocked the government from enforcing the order. Six days later, a federal appeals court left that ruling in place.

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The justices’ OT2016 events.

Justice Stephen Breyer delivered remarks at the Cambridge Public Library’s Democracy Day activities on May 20, where he urged students to “work part of the time in something beyond yourself—in government, politics, library commission, art museum, school. Part of us is part of the community. I can’t tell you to do it, but I can tell you, I’ve spent a lot of time with [the Constitution], and it foresees that you will participate in public life in some way or another. And Adams, and Hamilton, and Madison, and the others, I’m pretty sure, would have said, ‘If you don’t participate, it won’t work.’” Video of Breyer’s talk is online.

On May 22, Justice Ruth Bader Ginsburg received the Burton Award for the Book of the Year in Law for her work, “My Own Words.”

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Event announcement

By on Jul 10, 2017 at 10:52 am

On July 21 at 9 a.m., the Virginia Bar Association will present a program entitled “The Roberts Court at Age 11: The 2016 U.S. Supreme Court Term in Review.” Speakers will include Deepak Gupta, Toby Heytens and Marcia Coyle; Bill Hurd will serve as moderator. More information about this event, which is part of the bar association’s summer meeting, is available on the VBA website.


Petitions of the day

By on Jul 10, 2017 at 10:30 am

The petitions of the day are:


Issue: Whether, when a defendant is deprived of his Sixth Amendment right to counsel at a pretrial competency proceeding, the appropriate remedy is reversal of his conviction.


Issues: (1) Whether a qui tam realtor’s complaint under the False Claims Act satisfies Federal Rule of Civil Procedure 9(b) by alleging nothing more than the opportunity for fraud, as held by the U.S. Court of Appeals for the 3d Circuit, or whether Rule 9(b) instead requires allegations of actual false claims, as held by the U.S. Courts of Appeals for the 4th, 6th, 8th, and 11th Circuits, or allegations of particular details of a scheme paired with reliable indicia of a false claim, as held by the U.S. Courts of Appeals for the 1st, 5th, 7th, 9th, 10th, and D.C. Circuits; and (2) whether an “obligation” under the False Claims Act includes contingent duties that arise only after the exercise of discretion by government actors, so that an alleged failure to pay contingent marking duties is actionable as a knowing and improper avoidance of an obligation to pay the government.

Monday round-up

By on Jul 10, 2017 at 7:28 am

On Friday, the U.S. Court of Appeals for the 9th Circuit rejected a request by Hawaii to block the federal government from enforcing the president’s entry ban against additional relatives, such as grandparents, who the challengers believe should be allowed entry into the U.S. under the Supreme Court’s recent order in the entry-ban cases. Amy Howe covers this development for this blog. Additional coverage comes from Lyle Denniston at his eponymous blog, Dan Levine at Reuters, and Alicia Cohn at The Hill. In The Atlantic, Garrett Epps argues that “the ‘travel ban’ case is the strongest candidate for Establishment Clause standing I have seen in my long lifetime,” because Trump v. Hawaii “has been brought by the precise entity the clause was ‘originally understood’ to protect against federal overreach: a state government.”

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Petition of the day

By on Jul 7, 2017 at 10:22 pm

The petition of the day is:


Issues: (1) Whether Virginia may refuse to give effect to Miller v. Alabama in state collateral review proceedings because, according to the Virginia Supreme Court, a sentence imposed in violation of the U.S. Constitution is not void but merely “voidable”; (2) whether the Virginia Supreme Court contradicted Miller and Montgomery v. Louisiana by holding that, before imposing a sentence of life without parole, a sentencer need not actually consider a juvenile offender’s youth and attendant characteristics so long as the sentencer had the opportunity to do so; and (3) whether Virginia may, consistent with the Eighth Amendment, limit the remedy for a sentence imposed in violation of Miller.

(UPDATED: On Friday the challengers filed a brief in which they asked the U.S. Court of Appeals for the 9th Circuit to step in and block the federal government from enforcing the March 6 order against the additional relatives – such as grandparents and grandchildren – who they believe should be allowed to enter the United States under the Supreme Court’s June 26 order. However, the 9th Circuit quickly denied the challengers’ request, explaining that it lacked the authority to act on it.)

Late last month, the Supreme Court granted the Trump administration’s request to review two lower-court rulings that had blocked the implementation of the March 6 executive order – often referred to as the “travel ban” – that sought to impose a freeze on visas for travelers from six Muslim-majority countries. The justices allowed part of the ban to go into effect until they can hear oral argument in October and decide the case. But litigation over the travel ban could be back at the Supreme Court sooner than generally expected, as the plaintiffs challenging the ban seek additional guidance from the justices about exactly should be allowed to enter the United States under the Supreme Court’s June 26 order.

Citing national security concerns, the March 6 executive order had suspended new visas for travelers from six Muslim-majority countries – Iran, Syria, Libya, Somalia, Sudan and Yemen – as well as the entry of refugees. Two different lower courts had barred the Trump administration from implementing the order at all, but the justices forged a temporary compromise: They prohibited the government from enforcing the ban against any “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States,” but they allowed the government to enforce it against travelers who lack such a relationship. The court made clear that a “close” relationship was required, and it provided some examples, such as a wife or a mother-in-law, but it did not provide an exhaustive list.

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