Event announcement

By on Sep 13, 2016 at 10:00 am

On September 23 at 8:30 a.m., the Center for Business Law & Regulation at Case Western Reserve University School of Law will host a conference on the Roberts Court’s approach to business law issues. More information about this event in Cleveland, Ohio, which will feature three panel discussions, is available at CWRU Law’s website.

 
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Tuesday round-up

By on Sep 13, 2016 at 9:27 am

Briefly:

  • In The Los Angeles Times, David Savage reports that when voting laws “are challenged in federal court, the outcome appears to turn on whether the judges or justices hearing the case were appointed by Republicans or Democrats.”
  • In The Atlantic, Garrett Epps discusses next Term’s double jeopardy case Bravo-Fernandez v. United States, in which the Court will decide “under what circumstances can the government retry for the underlying crime” “when a defendant is validly acquitted for a crime that involves another crime,”noting that “double jeopardy cases try to make sense out of the jury system—which often makes no sense.”
  • Jonathan Peters in The Columbia Journalism Review explores the First Amendment issues raised by a pending cert. petition in Armstrong v. Thompson, which asks the Court to decide “whether a law-enforcement officer, generally, is a public official” under New York Times v. Sullivan, noting that if the Court accepts the case, “the implications could be significant for criminal-justice reporting.”

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Petition of the day

By on Sep 12, 2016 at 11:13 pm

The petition of the day is:

16-204

Issue: (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Erwin Chemerinsky is Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, at University of California, Irvine School of Law.

Without a doubt, the 2016 presidential election will determine the Supreme Court’s approach to the Establishment Clause for years to come.  Since 1960, seventy-eight years old is the average age at which a Justice has left the bench.  On January 20, 2017, when the next president is inaugurated, there will be three Justices seventy-eight or older: Justices Ruth Bader Ginsburg, Anthony Kennedy, and Stephen Breyer.  The next president, of course, also may have Justice Antonin Scalia’s seat to fill.  Especially if the next president serves two terms, he or she likely will have several seats to fill on the Court.  These Justices will determine the fate of such issues as the constitutionality of prayers in public schools, of religious symbols on government property, of standing to challenge government support for religion, and of government aid to parochial schools.

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Event announcement

By on Sep 12, 2016 at 11:55 am

On September 15 at 3:45 p.m., the Cato Institute will host a panel “looking ahead” to the Supreme Court’s next Term as part of its daylong celebration of Constitution Day. Speakers will include this blog’s Tom Goldstein, Glenn Harlan Reynolds, and Lyle Denniston; Ilya Shapiro will serve as moderator. More information about and registration for this event is available on the Cato Institute’s website.

 
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Robert Destro is Professor of Law at The Catholic University of America’s Columbus School of Law in Washington, D.C. and a Distinguished Fellow at the Religious Freedom Center of the Newseum Institute.

Speculating on the impact that a newly appointed Justice will have on Establishment Clause cases is risky business. Justices must take care to preserve their independence and avoid making statements that might lead to reasonable questions about their impartiality, so asking how the newly appointed 113th Justice of the Supreme Court of the United States would define the phrase “an establishment of religion” is likely to elicit a polite, but firm, statement declining to speculate about the outcome of any hypothetical case that might come before the Court. Nonetheless, it is a question worth asking.

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Monday round-up

By on Sep 12, 2016 at 9:45 am

Last week, the Supreme Court declined to intervene to block a lower court order barring Michigan’s attempt to eliminate straight-ticket voting. Amy Howe covered the decision for this blog. Additional coverage comes from Robert Barnes of The Washington Post, who calls the decision “another sign that it will be difficult for those bringing election controversies to the court in advance of November to prevail,” from Nina Totenberg, who observes at NPR that “the court has consistently followed the practice of refusing to intervene in election disputes so close to the November ballot,” from Adam Liptak at The New York Times, and from Paul Egan and Todd Spangler at The Detroit Free Press. Commentary comes from Rick Hasen, who at his Election Law Blog notes that Justices Clarence Thomas and Samuel Alito recorded their dissent from the ruling and posits that these two Justices “have become more assertive in expressing their views since the February death of Justice Scalia,” dividing the Court into “three ideological camps.”

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Petition of the day

By on Sep 9, 2016 at 11:11 pm

The petition of the day is:

16-273

Issue: (1) Whether this Court should retain the Auer v. Robbins doctrine despite the objections of multiple Justices who have recently urged that it be reconsidered and overruled; (2) whether, if Auer is retained, deference should extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (3) whether, with or without deference to the agency, the Department of Education’s specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Lawrence Rosenthal is a professor at Chapman University’s Dale E. Fowler School of Law.

The late Justice Antonin Scalia was, famously, an originalist; he believed that the Constitution should be applied today as it would have been understood in the founding era. Like most originalists, he argued that any effort to attribute evolving meaning to constitutional text enmeshed the judiciary in what were essentially policy judgments. Although he acknowledged that the Constitution contained much that is “abstract and general rather than specific and concrete,” his view was that “the abstract and general terms, like the concrete and particular ones, are meant to nail down current rights . . . . [T]hey are abstract and general references to extant rights and freedoms possessed under the then-current regime.” Justice Scalia’s approach to the Fourth Amendment’s prohibition on “unreasonable searches and seizures” provides a useful illustration.

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Ten days after the Supreme Court rejected North Carolina’s request to enforce the state’s new voter identification requirement for the November presidential elections, today the Justices also declined to step into a battle between Michigan and a group of non-profits and individuals challenging the state’s elimination of “straight-ticket voting” – which allows voters to cast a vote for all of the candidates from a particular political party simply by filling in one bubble, rather than having to designate a selection for each office.  Today’s order means that straight-ticket voting, which has been an option in Michigan for well over a century, will continue to be available when the state’s voters go to the polls this year.  Continue reading »

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