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.


Petition of the day

By on Oct 15, 2014 at 10:15 pm

The petition of the day is:


Issue: (1) Whether, under the Employee Retirement Income Security Act of 1974 (“ERISA”), a service provider that contracts with an employer to provide services to an ERISA plan exercises “control” over “plan assets” when the service provider (a) contracts with the employer for compensation for services provided to the plan, and (b) elects to exercise its contractual right to receive that compensation, rather than waiving that right; and (2) whether under the plain language of section 408 of ERISA, a provider of services to an ERISA plan can be held to have violated section 406 of ERISA, which states that a fiduciary to an ERISA plan may not “deal with the assets of the plan in his own interest or for his own account,” when it has received only “reasonable compensation” for its services.

Saying that the spread across the country of new laws to restrict voting rights will create new tests of constitutionality for the Supreme Court, the Obama administration on Wednesday evening asked the Justices in the meantime to bar Texas from using its strict new voter ID law.  The government’s application was one of three (the others are here and here) seeking delay of the new law — a delay that clearly would last through this year’s election, including early voting that starts Monday in Texas.

The challenges followed swiftly after the U.S. Court of Appeals for the Fifth Circuit voted to allow the law to be in full effect, after having never been used in a federal election.  The pleas for delay to the Supreme Court do not ask for an immediate ruling on the law’s constitutionality, leaving that to the Fifth Circuit for now instead.

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Today’s transcripts

By on Oct 15, 2014 at 5:32 pm

The transcript in Teva Pharmaceuticals USA v. Sandoz is here

The transcript in Jennings v. Stephens is here

Posted in Merits Cases

The Supreme Court pondered laboriously Wednesday the difference between what is fact and what is law.  Finding no sure way to answer, the Justices seemed tempted to go with a gut feeling that it needed to be made simple, to treat them as the same — at least for one branch of patent law.  But there is a directive from Congress saying they are different, so the temptation might wind up being a wrong though easy way out.

That was the dilemma that appeared to emerge as the Justices heard one of the biggest patent cases in years, Teva Pharmaceuticals USA v. Sandoz, Inc., over the differing — and maybe competing — roles of trial judges and a specialized federal appeals court that has a major role in shaping the law of inventions.

Wiliam M. Jay for petitioner

Wiliam M. Jay for petitioner

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Eric M. Fraser practices appellate, antitrust, and intellectual property law at Osborn Maledon, P.A.

The Supreme Court is wary of allowing a state to bestow immunity from federal antitrust laws on a group of professionals regulating themselves without supervision from the state. That sentiment came through during arguments yesterday in North Carolina Board of Dental Examiners v. Federal Trade Commission. After an hour of argument, however, the precise boundaries of immunity for state agencies remained far from clear.

Mr. Mooppan

Hashim Mooppan for NC Board of Dental Examiners

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Wednesday round-up

By on Oct 15, 2014 at 5:55 am

Yesterday morning the Court heard oral arguments in North Carolina Board of Dental Examiners v. Federal Trade Commission, in which the Justices are considering whether a state dentistry board can prohibit non-dentists from selling teeth –whitening services.  Nina Totenberg covers the argument for NPR, while Daniel Fisher of Forbes concludes that the Justices “seemed left in a quandary about how to deal with a clear example of self-interested professionals trying to keep prices high in a lucrative business by excluding competition.”

The Court also heard oral arguments in the water-rights dispute between Kansas, on one side, and Nebraska and Colorado on the other.  Jeremy Jacobs covers the proceedings for Greenwire, while Kimberly Bennett does the same (for both cases) at JURIST.  And at ISCOTUSnow, Edward Lee predicts the winners of both of Tuesday’s oral arguments based on the number of questions for each side. Continue reading »

Posted in Round-up

Petition of the day

By on Oct 14, 2014 at 10:05 pm

The petition of the day is:


Issue: Whether, in enacting the Clean Water Act, Congress intended to strip the states of the ability to punish harm to their wildlife resulting from oil spills.

Over the dissents of three Justices, the Supreme Court on Tuesday evening barred Texas from enforcing two parts of its new abortion-restriction law — one part as it applied throughout the state, the other as it applied to two clinics in the southwest part of the state.

The state may not now enforce a requirement that all clinics in the state upgrade their facilities to be hospital-like surgical centers, even when they perform abortions only through the use of drugs, not surgery.  And it may not enforce, against the clinics in McAllen and El Paso, a requirement that all doctors performing abortions have privileges to admit patients to a hospital within thirty miles of the clinic.  That requirement can continue to be enforced elsewhere in Texas, the Court indicated.

Those two provisions, together, had reduced the number of clinics still operating in the state to seven, with an eighth soon to open.  At one time recently, Texas had forty-one clinics.  The Supreme Court’s action Tuesday will allow the reopening of thirteen closed clinics on Wednesday, lawyers for the clinics said.

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For the second time in the past four days, North Carolina’s ban on same-sex marriage has been struck down.  Two different judges reached the same constitutional conclusion in separate cases — one in Asheville, on Friday, the other in Greensboro, on Tuesday afternoon.

North Carolina is located in the federal judiciary’s Fourth Circuit, and both judges said they were bound by the ruling of the U.S. Court of Appeals for that circuit, finding Virginia’s ban to be unconstitutional.  That Fourth Circuit decision was one that the Supreme Court refused to review last week.

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