In its conference of February 16, 2018, the court will consider petitions involving issues such as whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency; whether Bowles v. Seminole Rock & Sand Co. and Auer v. Robbins should be overruled; and whether, in deadly force shooting cases, the U.S. Court of Appeals for the 2nd Circuit erred by requiring that the jury must be instructed regarding the specific legal justifications for the use of deadly force, and that the usual less specific instructions regarding the use of excessive force are not adequate, when such a requirement is in direct conflict with the Supreme Court’s decision in Scott v. Harris and subsequent decisions, which abrogated the use of special standards in deadly force cases and established “reasonableness” as the ultimate and only inquiry.

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Friday round-up

By on Feb 9, 2018 at 7:30 am

At The Daily Caller, Kevin Daley reports that “GOP Rep. Devin Nunes of Calif., chair of the House Permanent Select Committee on Intelligence, may invite Chief Justice John Roberts to testify before the panel on alleged FISA abuses” in the wake of the committee’s recently released “memo on the secret intelligence courts, which alleged the FBI sought authorization to surveil President Donald Trump’s campaign aides on the basis of political opposition research.” At The National Law Journal (subscription or registration required), Tony Mauro reports that Nunes’ suggestion “is drawing criticism and raising questions about the separation of powers.” Additional coverage comes from Katie Bo Williams at The Hill.

For the Los Angeles Times, David Savage reports that Janus v. American Federation of State, County, and Municipal Employees, Council 31, in which the court will consider whether an Illinois law allowing public-sector unions to charge nonmembers for collective-bargaining activities violates the First Amendment, “threatens the financial foundation of public employee unions in 22 ‘blue’ states” and “is being closely watched for its potential to shift political power in states and across the nation.” Mark Walsh reports for Education Week that “[j]udging by the tone of a joint press conference the four largest public-employee unions held last week [about the case], the labor movement is girding for an era in which they will no longer be able to charge ‘agency fees’ to employees in a bargaining unit who refuse to join the union to cover those workers’ share of collective bargaining costs.” For USA Today, Richard Wolf reports that “the lead plaintiffs in four successive Supreme Court cases challenging the power of public employee unions,” including Mark Janus, all “take pride in helping conservative groups reach a tipping point in their decade-long, anti-union campaign.”

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Petition of the day

By on Feb 8, 2018 at 5:00 pm

The petition of the day is:

17-683

Issues: (1) Whether the U.S. Court of Appeals for the 4th Circuit erred by holding that sovereign title to submerged lands in the original thirteen states depends on federal law instead of state law; and (2) whether the lower court erred by exercising removal jurisdiction over North Carolina’s state-law claim without considering the disruption to the federal state balance as required by Gunn v. Minton.

On February 14 at 1 p.m., the Washington Legal Foundation will host a panel discussion entitled, “High Court Halftime: The U.S. Supreme Court’s October Term 2017 at Midpoint.” Panelists include Mark Perry, Catherine Carroll and Kevin McDonald; Amy Howe will moderate. The event will be live streamed at www.wlf.org and those interested in attending should RSVP to glammi@wlf.org.

 
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Andrew Keane Woods is an assistant professor of law at the University of Kentucky College of Law.

On one level, United States v. Microsoft Corp. presents a fairly straightforward matter of statutory interpretation. The statute in question — the Stored Communications Act — is silent about its territorial reach, which raises at least two questions: (1) Is it an extraterritorial application of the statute to issue a U.S. warrant in Washington state for data that Microsoft holds in Ireland, and (2) does the statute apply extraterritorially? Because the statutory issues are covered at length by other posts in this symposium and in the briefing before the Supreme Court, I thought I would say a few words about what is not in the briefing.

Much like Apple’s dispute with the FBI, this case has attracted interest from around the globe. It is seen as a test both of U.S. government efforts to access foreign data — the first time our highest court has considered that issue — and of one nation’s efforts to exert control over a hugely powerful internet company. These two questions matter — symbolically, politically, as a matter of precedent — to the rest of the world. The Supreme Court will, we should hope, deploy its usual arsenal of statutory-interpretation tools and foreign-affairs doctrines to arrive at a sensible solution. But whatever happens in the case, the following issues will persist and reappear in future cases.

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Thursday round-up

By on Feb 8, 2018 at 7:35 am

At Constitution Daily, Lyle Denniston reports that the Supreme Court refused on Tuesday to add a third partisan-gerrymandering case to this term’s docket, declining “to put on a fast track a case testing the constitutionality of a North Carolina congressional districting map that led in 2016 to victory for 10 Republicans and only three Democrats, despite only a slight GOP edge in voting totals statewide.” At Governing, Anne Blythe covers the Supreme Court’s partial grant on Tuesday of a request by North Carolina Republicans to block a decision by a three-judge federal court invalidating voting maps for the state’s General Assembly. At the Election Law Blog, Rick Hasen comments on both developments, arguing that “the primary lesson to learn from the Court’s refusal to expedite is that the Court continues to believe that voters can wait when it comes to curing redistricting,” and suggesting that “[t]he absence of Justice Gorsuch’s name in the second order is notable,” because it “shows he’s not moving in complete lockstep with Thomas and Alito on these issues.”

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Petition of the day

By on Feb 7, 2018 at 5:00 pm

The petition of the day is:

17-1009

Issue: Whether a state’s denial of a federally-approved interstate natural gas pipeline’s request for certification under Section 401 of the Clean Water Act, 15 U.S.C. § 717b(d)(3), on the basis of purportedly receiving insufficient information regarding alternative routes for the interstate natural gas pipeline, exceeds the state’s limited authority under the Energy Policy Act of 2005 and the Natural Gas Act of 1938, interferes with the Federal Energy Regulatory Commission’s exclusive jurisdiction over the routing of interstate natural gas pipelines when consideration of alternative routes is explicitly not part of the state’s federally-approved water quality standards, and violates the fundamental principles of federal supremacy arising from the Constitution’s supremacy clause.

Gregory T. Nojeim is senior counsel and director of the Freedom, Security and Technology Project at the Center for Democracy and Technology.

On February 27, the Supreme Court will hear oral argument in a case with global implications for privacy and data protection. In United States v. Microsoft, the U.S. Department of Justice claims that warrants issued by a U.S. judge or magistrate can compel a U.S. communications service provider to disclose communications content the provider stores abroad – in this case, in Ireland. My organization, the Center for Democracy & Technology, filed a brief in favor of Microsoft, which is resisting the warrant. We did so out of concern that if the DOJ position prevails, it will be adopted by foreign governments and create chaos, as those governments will insist that their process compels disclosure of content in the U.S. despite the provisions of the Stored Communications Act governing those disclosures. We also argue that if the court adopts the DOJ position, it would damage the cloud-computing industry.

The case has drawn a lot of interest from many quarters. Amicus briefs filed in the case raise at least four important questions the Supreme Court should address.

Would compelled disclosures from abroad violate the EU’s GDPR?

On May 18, 2018, the European Union’s General Data Protection Regulation will come into force. The GDPR will permit cloud providers to transfer data from the EU to the U.S. only in certain circumstances. If one of those circumstances does not include compliance with a U.S. warrant, a company that complies with a warrant compelling a disclosure from a data center in the EU faces penalties of up to four percent of its worldwide annual revenues. Obviously, this is a critically important question for providers, many of which have lined up behind Microsoft because they are concerned about such conflicts of law.

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Jennifer Daskal is an associate professor of law at American University Washington College of Law.

With more than 30 amicus briefs filed in the Microsoft Ireland case – including from members of Congress, the European Commission, the Chamber of Commerce, privacy advocates and dozens of media organizations – United States v. Microsoft stands as one of the most closely watched cases this term.  For good reason. The implications are far-reaching – touching on everything from security, privacy, the future of the internet, democratic accountability and core attributes of sovereignty, as attested to by the number of individuals and institutions that have weighed in on the case.

It is, however, a set of issues best dealt with by Congress, not the courts. The good news is that Congress is beginning to engage. Earlier this week, a bipartisan group of senators introduced the Clarifying Lawful Overseas Use of Data (CLOUD) Act – a bill that, if enacted quickly enough, would moot the Microsoft Ireland case and authorize the executive to enter into bilateral and multilateral agreements so as to facilitate cross-border access to data in the investigation of serious crime. Amazingly, the legislation has the support of both the Department of Justice and Microsoft – the dueling parties in the case. (I describe the bill in detail at Just Security.)

If Congress moves quickly enough, it would avert a Supreme Court showdown. But assuming that doesn’t happen, the Supreme Court can, and should, write the kind of nuanced ruling that will bolster these congressional efforts and balance the competing interests presented by the case. Specifically, the court should – as does the legislation – reject the idea that the location of data controls access, yet it should also demand respect for the legitimate interest of governments in protecting their own citizens and residents.

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Wednesday round-up

By on Feb 7, 2018 at 7:20 am

In yet another redistricting ruling, the Supreme Court yesterday partially granted a request by North Carolina Republicans to block a decision by a three-judge federal court invalidating voting maps for the state’s General Assembly. Amy Howe has this blog’s coverage, which first appeared at Howe on the Court. For The New York Times, Adam Liptak reports that “[t]he justices seemed to split into three camps.”

Coverage continues of Monday’s order denying requests by Pennsylvania Republican lawmakers and voters to put a hold on a Pennsylvania Supreme Court ruling that struck down Pennsylvania’s congressional district lines and ordered lawmakers to draw new maps. At Governing, Jonathan Lai and Liz Navratil report that “[t]he maps will play a large role in whether Democrats can gain any ground in the House.” Additional coverage comes from Lyle Denniston at Constitution Daily. At The Economist’s Democracy in America blog, Steven Mazie observes that “[i]t should not come as a shock that Justice Alito, who hears emergency requests from the federal circuit encompassing Pennsylvania, turned down Republicans’ demand to get involved in a state-law question over which the nation’s highest court has no jurisdiction.”

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