A federal judge in Cincinnati, who had already ruled that same-sex couples married in other states must have some legal rights when they live in Ohio, said Friday that he will shortly rule that they must have full marital equality.  Thus, a case that started out as a dispute over names on birth certificates would be transformed into a broader decision that Ohio must recognize valid gay and lesbian marriages performed elsewhere.

During a hearing in his court on Friday, U.S. District Judge Timothy S. Black disclosed that he plans to issue the new ruling within ten days.  The entry on the docket confirming his intention can be read here.  State officials told news organizations in Ohio that they would promptly appeal to the U.S. Court of Appeals for the Sixth Circuit. Continue reading »

Once the Court granted probable jurisdiction in McCutcheon v. Federal Election Commission, it seemed likely, and was confirmed at oral argument, that a majority of Justices viewed aggregate contribution limits as unjustified under the First Amendment.  The predictable reactions to the decision fell into two longstanding camps:  the defenders of political freedom versus the guardians of regulation.  As reflected by the divided Court, there are those who seek to minimize government intrusion into political speech and those who believe considerable government regulation is necessary to safeguard democracy and prevent corruption.

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The McCutcheon v. FEC ruling and the identity of the Justices aligned in it on one side or the other should surely have come as no surprise to Court-watchers.  The case is both an easier one than Citizens United and a far less far-reaching one, both in theory and potential political impact.  There was never any reason to expect those members of the Court who joined the Citizens United majority to vote to sustain a provision of law that, at least on some readings, would have trouble passing a reasonable basis test – i.e., if a $2600 contribution by Shaun McCutcheon to sixteen candidates did not corrupt them, why would similar contributions corrupt the twelve other candidates he wished to support?  Continue reading »


During Wednesday’s argument in Fifth Third Bancorp v. Dudenhoeffer, the Court was skeptical from the outset that there ought to be a special presumption of prudence for fiduciaries of employer stock ownership plans (“ESOPs”).  But as the argument unfolded, most members of the Court appeared also to appreciate the difficulties of applying the usual ERISA “prudent person” standard to cases (like this) involving ESOP fiduciaries with inside information.  In the end, while the Court likely will not apply a presumption of prudence, it may offer observations on the application of the prudent person standard that will make it difficult for plaintiffs to show that an ESOP fiduciary who failed to stop offering company stock in light of inside information that the stock was overvalued violated the duty of loyalty or prudence. Continue reading »

The Supreme Court majority in McCutcheon v. Federal Election Commission has continued on its step-by-step path to destroy the nation’s campaign finance laws.

The Court in McCutcheon overturned forty years of national policy and thirty-eight years of judicial precedent to strike down the overall limits on the total contributions an individual could give to federal candidates and to party committees in an election cycle.

The McCutcheon decision represents the first time that the Supreme Court has reversed a holding in its landmark decision in Buckley v. Valeo and the first time the Court has struck down a core federal contribution limit.

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Friday round-up

By on Apr 4, 2014 at 8:35 am

The Court’s decision on Wednesday in McCutcheon v. FEC, striking down the aggregate limits on contributions to political parties, political action committees, and candidates for federal office, continues to dominate coverage of, and commentary on, the Court.  Yesterday this blog kicked off its symposium on the decision with a foreword from Ronald K.L. Collins and David Skover; that was followed by commentary from Richard Hasen, Burt Neuborne, Ilya Shapiro, and Paul Smith.  Look for additional commentary today from Jan Witold Baran and Fred Wertheimer.  Coverage of the decision comes from Chris Geidner at BuzzFeed, Sahil Kapur of Talking Points Memo (here and here), ISCOTUS (video), Adam Liptak of The New York Times, PJTV (which has a video interview with me on the case), and Steven Mazie at The Economist’s Democracy in America blog.  Commentary on the McCutcheon decision comes from Dahlia Lithwick of Slate, Garrett Epps of The Atlantic, Beverly Mann at Angry Bear (here and here), and Michael Bobelian of Forbes. Continue reading »

Posted in Round-up

Petition of the day

By on Apr 3, 2014 at 10:17 pm

The petition of the day is:

Dart Cherokee Basin Operating Company, LLC v. Owens

Issue: Whether a defendant seeking removal to federal court is required to include evidence supporting federal jurisdiction in the notice of removal, or whether it is enough to allege the required “short and plain statement of the grounds for removal.”


John Elwood reviews Monday’s relisted cases.

Happy April, Court watchers! Spring has finally arrived so it’s time for a nice drive or to enjoy some baseball.  Or, if you’re the indoorsy type, it’s the ideal time to spend some time in a dimly lit arena poring over dockets while the delicate scent of ionized air, axle grease, and nerd sweat wafts upon the air.  Let’s jump right in.

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The Justices have danced around the question for years.  Critics (including a decided majority of academic analysts) have bemoaned the drag on innovation for decades.  And when the Supreme Court granted review in Alice Corp. v. CLS Bank International, there was a prospect that the Court would shed some much-needed light on the question whether (or when) the Patent Act authorizes patents on software (more specifically, on computer-implemented inventions).  But by the end of the argument it seemed plain that few (if any) of the Justices were inclined to provide any large pronouncements on that front (or any other front). Continue reading »

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