Petition of the day

By on Feb 16, 2017 at 11:11 pm

The petition of the day is:

16-759

Issues: (1) Whether a defendant “induce[s]” the assent of another person, within the meaning of 18 U.S.C. § 2422, where the defendant accepts the request of the other person, who has already assented to the course of conduct prior to and independent of any action by the defendant; and (2) whether the court of appeals correctly applied the harmless-error doctrine to the exclusion of evidence of a government investigation showing the petitioner’s lack of interest in sex involving any underage person prior to contact with the government, where the petitioner’s lack of predisposition was essential to his entrapment defense.

The nomination of Judge Neil Gorsuch has moved into a phase that is unique to the Supreme Court confirmation process: trying to predict how a justice will vote on particular issues and cases in the future.

This predictive process may occur in two phases. The first is well underway – vast amounts of commentary and analysis about how Gorsuch may handle everything from employment-law cases to white-collar-crime issues. The second phase will take place in just over a month, when the 20 members of the Senate Judiciary Committee try to figure out what kind of questions to ask the nominee that will actually shed any light on his views.

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Thursday round-up

By on Feb 16, 2017 at 7:07 am

Last weekend, Judge Neil Gorsuch submitted his Senate Judiciary Committee questionnaire. Amy Howe reports on the submission for this blog. Advice and Consent (podcast) features a discussion of the judge’s responses, focusing on his “record on siding with corporate interests.”

At LegalWritingPro, Ross Guberman offers two posts on Gorsuch’s vaunted writing style: In the first, Guberman identifies four of Gorsuch’s gifts as a writer, but concludes that “he has yet to settle on a consistently confident voice”; the second post enumerates what Guberman views as five weaknesses in Gorsuch’s writing. At Vinson & Elkins’ Lincoln’s Law Blog, John Elwood and Crystal Y’Barbo Stapley look at Gorsuch’s slim record in False Claims Act cases, concluding that although “this small handful of cases is not enough to reflect a ‘trend,’ the decisions have aspects FCA defense counsel may find encouraging.”

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Petition of the day

By on Feb 15, 2017 at 11:23 pm

The petition of the day is:

16-498

Issues: (1) Whether a statute directing the federal courts to “promptly dismiss” a pending lawsuit following substantive determinations by the courts (including this court’s determination that the “suit may proceed”) – without amending the underlying substantive or procedural laws – violates the Constitutions separation of powers principles; and (2) whether a statute which does not amend any generally applicable substantive or procedural laws, but deprives the petitioner of the right to pursue his pending lawsuit, violates the due process clause of the Fifth Amendment.

Yesterday the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet held a hearing on judicial transparency and ethics. Although three witnesses provided testimony about concrete areas of reform, recent executive branch controversies overshadowed the ostensible purpose of the hearing.

Rep. Jerrold Nadler (D-N.Y.) spoke out against what he characterized as President Donald Trump’s recent attempts to “delegitimize the judiciary.” Similarly, Rep. John Conyers (D-Mich.) recalled Trump’s allegations of bias against Judge Gonzalo Curiel during the presidential campaign. Conyers urged the subcommittee to “do everything possible to make sure the system is not undermined.”

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Gorsuch submits Senate questionnaire

By on Feb 15, 2017 at 12:57 pm

Judge Neil Gorsuch, President Donald Trump’s nominee to the Supreme Court, was first contacted about a possible nomination to the court on December 2, 2016 – nearly two months before he was actually nominated. That information came over the weekend, when Gorsuch submitted his responses to a questionnaire from the Senate Judiciary Committee.

Gorsuch’s initial conversation about the potential nomination was with Leonard Leo, the executive vice president of the Federalist Society, who advised Trump during the selection process. Over a month later, on January 5, 2017, Gorsuch met with Donald McGahn, currently the White House counsel and then part of the Trump transition team, as well as Vice President Mike Pence, presidential advisor Steve Bannon, Mark Paoletta (now the counsel to the vice president), and White House chief of staff Reince Preibus. Nine days later, Gorsuch met with Trump himself. On January 27, McGahn told Gorsuch that Trump planned to nominate him to fill the vacancy on the Supreme Court – which Trump himself confirmed a few days later, in a call on January 30.

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Kindred Nursing Centers Limited Partnership v. Clark so closely resembles several of the court’s recent cases that you’d have to be a pretty close reader if you didn’t wonder whether they’d already decided this one. Suffice it to say that the court has granted review to decide if the Federal Arbitration Act pre-empts a decision of a state supreme court holding an arbitration agreement unenforceable based on the lower court’s doubt that individuals benefit from pre-dispute arbitration agreements. If you think I’m recycling my posts – no, this is not DIRECTV v. Imburgia or Nitro-Lift Technologies v. Howard or even Marmet Health Care v. Brown. This really is a different case. Well, maybe not all that different.

arbitration-agreement

The specific context here is a nursing home in Kentucky, operated by the petitioner, Kindred Nursing Centers. Before entering the home, residents sign powers of attorney designating individuals like the respondents, Janis Clark and Beverly Wellner, as their attorneys-in-fact. The powers of attorney are standard forms that grant broad general authority over the residents’ future business affairs, including power to sign all “contracts”; they do not, though, specifically mention arbitration. Relying on those powers of attorney, the agents signed standard pre-dispute arbitration agreements on behalf of the residents.

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Wednesday round-up

By on Feb 15, 2017 at 7:01 am

At Roll Call, Todd Ruger reports on Judge Neil Gorsuch’s Senate Judiciary Committee questionnaire, noting that “some portions” were “apparently copied and pasted from a similar questionnaire from a decade ago, when the Senate confirmed him on a voice vote to the U.S. Court of Appeals for the 10th Circuit.” In The New York Times, Matt Flegenheimer reports that the Gorsuch confirmation process poses a “dilemma” for Senate Democrats, who are being forced “into disparate factions over a nominee with copious credentials but deeply conservative roots.” In The Hill, Jordain Carney reports that Senate Majority Leader Mitch McConnell has stated that Democratic senators “should apply the ‘Ginsburg standard,’” derived from Justice Ruth Bader Ginsburg’s statement during her confirmation hearings that she would provide “’no forecast, no hints’” of her positions in specific cases, to the Gorsuch nomination, arguing that “Democrats like Sen. Charles Schumer (D-N.Y.) are setting a higher bar for Gorsuch.” In The Washington Times, Alex Swoyer reports that Schumer “is poised to be the biggest hurdle between Judge Neil Gorsuch and the Supreme Court.”

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Petition of the day

By on Feb 14, 2017 at 11:23 pm

The petition of the day is:

16-771

Issue: Whether the U.S. Court of Appeals for the 2nd Circuit erred in holding, contrary to the considered view of the United States Copyright Office and in conflict with the New York state appellate courts, that when Congress enacted the Digital Millennium Copyright Act and added Section 512 to the Copyright Act, it implicitly limited and preempted the state-law rights and remedies that Section 301(c) says “shall not be annulled or limited.”

Portrait of Sergio Adrian Hernandez Guereca, 15 year - old who was killed yesterday by a Border Patrol agent pictured at his graduation from the secundaria. PHOTO COURTESTY OF THE HERNANDEZ GUERECA FAMILY

Sergio Hernández at his elementary school graduation (Courtesy of the family of Sergio Hernández)

In any context, the case of Hernández v. Mesa would be an important one: The parents of Sergio Hernández, a Mexican teen shot by a U.S. Border Patrol agent while standing on Mexican soil, are seeking to sue the agent responsible for their son’s death in U.S. courts. But with the United States’ relationship with Mexico already strained in the wake of the Trump administration’s announcement that it plans to build a wall along the U.S.-Mexico border – and have Mexico reimburse the U.S. for the cost of construction – the lawsuit filed by Jesus Hernández and his wife, Maria Guadalupe Guereca Bentacour, takes on even more significance. Supporting Mesa, the federal government insists that allowing suits like this one could “significantly disrupt the ability of the political branches to respond to foreign situations involving” the U.S.’s national interest, while the Mexican government – supporting the parents – suggests that shutting the lawsuit down could harm U.S.-Mexico relations.

Just as the United States and Mexico disagree about how this case should be resolved, Hernández’s parents and Mesa tell divergent stories about what actually happened on June 7, 2010. Hernández’s parents contend that the 15-year-old was fooling around with his friends in the culvert between El Paso, Texas, and Juarez, Mexico. The group was, they say, “playing a game in which they dared each other to run up the culvert’s northern incline, touch the U.S. fence, and then scamper back down.” As Hernández was running away from the fence back toward Juarez, on the Mexican side of the border, Jesus Mesa fired at him from approximately 60 feet away, on the U.S. side of the border. Mesa’s shot struck Hernández in the head, and he died on the spot.

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