At Legal Times online, Tony Mauro has this report about today’s argument in Philip Morris.

CNN.com’s Bill Mears filed this report about the same argument (both via How Appealing).

Paul Horwitz comments on the argument here at PrawfsBlawg.

This morning, the New York Times editorial page weighed in on the case here.

The AP’s Pete Yost has an article here about today’s other oral argument, which was in the case Lawrence v. Florida.

In addition, Professor David Stras recently posted this article on SSRN which “examines the influence of the cert. pool over four Terms of Court – October Terms 1984, 1985, 1991, and 1992.”

The following argument preview was written by David Thompson, a student in the Stanford Supreme Court Litigation Clinic.

The Supreme Court will wrap up the first week of its November sitting on Wednesday, November 1 with Environmental Defense v. Duke Energy Corp. (05-848) followed by Whorton v. Bockting (preview here). As the title suggests, Duke Energy involves an environmental challenge to emissions at a power plant. Despite the environmental genesis of the case, the actual argument is likely to turn on gritty details of administrative law: what constitutes a challenge to the validity, rather than the interpretation, of a regulation? (The briefs are here.)

Sean H. Donahue, affiliated with the National Legal Scholars Law Firm, will argue on behalf of the petitioners. Mr. Donahue previously served as a visiting professor of environmental law at Washington & Lee University and holds the distinction of having clerked for both Justice Stevens (at the Supreme Court) and Justice Ginsburg (then at the Court of Appeals for the D.C. Circuit). Deputy Solicitor General Thomas G. Hungar will argue for the United States in support of petitioners. The argument of respondent, Duke Energy, will be conducted by Carter G. Phillips of Sidley Austin, LLP. Mr. Phillips has made more than 50 appearances before the Supreme Court, including nine as Assistant to the Solicitor General before joining Sidley Austin.

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Today, we filed this Supplemental Brief for the Respondents in KSR v. Teleflex, a patent case set for oral argument before the Supreme Court on November 28. The top-side briefs in this case, including the Brief for the Petitioner, can be found here. The bottom-side briefs, including the complete set of amici curiae briefs referred to in today’s filing, can be found here.

Working quickly today, the Supreme has posted the transcript for today’s argument in Philip Morris v. Williams here. Earlier today, Lyle posted this entry with an analysis of what transpired.

UPDATE 2:29: The Court has now posted the transcript in Lawrence v. Florida here. Our preview of this case can be found here.

The Supreme Court faces a difficult task when it considers whether one of its new decisions on criminal law should apply to cases that arose before such a ruling was handed down – that is, whether to make the decision retroactive. But that task is made doubly difficult in Whorton v. Bockting (05-595), being argued at 11 a.m. on Wednesday, because the Court is also facing the issue of whether Congress has taken away altogether its authority to make that choice – in other words, whether Congress has accomplished another feat of court-stripping, curbing further the federal habeas rights of state prisoners.

The Bockting case, when granted last May 15, looked to be a straightforward test of whether the Court’s March 8, 2004, decision in Crawford v. Washington (02-9410) would be made retroactive to habeas cases pending in the courts on that date – cases in which a criminal conviction had become final but the convicted individual was still in court with a post-finality challenge. Crawford laid down the constitutional rule that, if a witness had given “testimony” in some prior official setting without being cross-examined, but that witness could not be on hand for the trial, the prior statement could not be used at trial without violating the Sixth Amendment’s Confrontation Clause. (The Court seems to be working out, case by case, what it meant by prior “testimony.”)

The case involves the use of a six-year-old Nevada girl’s pre-trial statements about being molested by her father, Marvin Howard Bockting; he was convicted of sexual assault and was given a life prison sentence.

Making Crawford retroactive, state officials claim, could have a huge impact on criminal cases, opening multitudes of final convictions to new challenges because statements in violation of the Crawford rule had been used at trial. This retroactivity issue, on its own, is the one the U.S. Solicitor General chose to address in an amicus brief filed on July 20 – opposing retroactivity.

But the hearing Wednesday will also be watched closely for the Justices’ possible reaction to the question of the Court’s authority to decide the retroactivity issue, now that that question has emerged more prominently.

The case will be argued for Nevada’s prison director Glen Whorton by the state’s attorney general, George J. Chanos. Sharing the state’s time will be Irving L. Gornstein, an assistant to the Solicitor General, speaking for the federal government. Arguing for Nevada inmate Marvin Bockting will be a Las Vegas federal public defender, Frances A. Forsman.

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If Justices of the Supreme Court cannot understand an instruction written for a jury in a civil case, what are the chances that the jury would have understood it? And, if it was an instruction that actually was never given, why does it matter? Those were the principal issues with which the Court grappled on Tuesday in what had looked to be the biggest test case to come along on punitive damages — a unique test of the right amount of punishment of a major tobacco company for creating hazards to smokers. But, illustrating that “great cases” sometimes can come down to an eccentric detail, the hearing on Philip Morris USA v. Williams (05-1256) did not live up to expectations. In fact, the case may be on its way back to the Oregon Supreme Court for a clarification — and one that could make the case go away altogether.

The case had reached the Court as a significant test of the constitutionality of a punitive damages award that, in appearance at least, rewarded a single injured party for harms done to others not involved in the case. Philip Morris, in its appeal, had complained of “a massive punitive award to a single individual.” And, secondarily, this was a case about how high punitive damages could go, in comparison to compensatory damages, when the corporate misconduct was considered to be especially egregious. Those issues were big enough that the case had drawn a wide participation by business groups on one side and consumer and health groups on the other.

But less than a minute into the one-hour argument Tuesday, the constitutional drama drained out of the case as it settled on the meaning of what Philip Morris had wanted the jurors told in an instruction, complicated by the fact that it was an instruction that the judge had refused to give.

The tobacco company’s attorney, Andrew L. Frey of New York, had opted to make that proposed instruction his opening thrust at the podium, but he was immediately forced to try to explain what it meant, and what jurors might have concluded from it had it been given. Along the way, the Court also seemed to grow confused about just how the Oregon Supreme Court had dealt with the denial of the requested instruction. This prompted a number of Justices — beginning early on with Antonin Scalia — to suggest that the case be returned to the state court with a request to say what it meant; that was an idea that seemed to gather momentum as the hearing unfolded. The prospect loomed that the state court might then resolve the entire case on state law grounds, perhaps insulating it from further Supreme Court review.

That outcome, should it occur, would be more remarkable because there seemed to be a considerable degree of agreement among the Justices — and perhaps by the two arguing lawyers — that juries should not be free to impose extra damages designed to punish a corporation when its misconduct harmed non-parties. And there even appeared to be a common understanding on a somewhat more puzzling proposition: that juries could consider the risk that corporate wrongdoing posed to others, so long as they did not directly assess damages based on any actual harms done to others, leaving it to them to pursue their own lawsuits. Both of those, it appears, would have to be constitutional declarations, but the Court might prefer not to address them in a case in which the record had grown as opaque as this one has — a record that might be clarified if sent back.

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The following recap was written by Gia Kim of Akin Gump; we previously published her preview of this case here.

In the first argument of the “November” sitting, Osborn v. Haley, No. 05-593, the Court sought to clarify the scope of the Attorney General’s authority to certify that a federal employee is entitled to immunity under the Westfall Act by denying that the alleged incident ever happened – as well as the procedural and jurisdictional problems presented by a district court’s overturning of the certification and subsequent remand to state court.

Justice Ginsburg opened the questioning of Eric Grant, counsel for petitioner Pat Osborn, by observing that the question of immunity is a threshold question of federal law – a federal law “gateway” – that would provide Article III jurisdiction. Grant responded that incident-denying certifications fail to raise a question of federal law because such certifications invoke a factual defense, not a legal scope-of-employment determination. Several Justices then pressed Grant to explain how an incident-denying certification, which amounts to a defense that the employee was on duty and acting within the scope of his employment at the time of the alleged incident, can be meaningfully distinguished from any other scope-of-employment certification. Further, several Justices expressed the view that the line between incident-denying certifications (which the petitioner argues are unauthorized by the Act) and incident-characterizing certifications (which the petitioner acknowledges are permissible) is difficult to draw. This skepticism regarding incident-denying certifications as a distinct category colored the Justices’ questioning on the district court’s ability to remand, notwithstanding the Act’s provision that the Attorney General’s certification “conclusively” establishes scope of employment “for purposes of removal.” In response to Grant’s contention that an incident-denying certification does not satisfy the Act’s definition of “certification,” Justice Alito remarked that the district court’s authority to remand would turn on the Attorney General’s ability to draw the line between incident-denying and incident-characterizing certifications, a “very nuanced decision in some instances.”

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Today beginning at 10 AM Eastern, the Supreme Court is scheduled to hear one hour of oral argument in Philip Morris v. Williams (preview here) followed by one hour of argument in Lawrence v. Florida (preview here).

Lyle will post an entry about the highly-anticipated Philip Morris oral argument sometime today, and the Court is scheduled to make available the transcripts to both cases at some point in the afternoon; we will link to them when they are available.

No decisions are expected to be announced today.

The following argument preview was written by Chris Pudelski, an attorney at Akin Gump.

The infamously muddled terms of the Antiterrorism and Effective Death Penalty Act return to the Supreme Court on Tuesday in No. 05-8820, Lawrence v. State of Florida, which presents the question whether a pending petition for writ of certiorari in the U.S. Supreme Court tolls AEDPA’s one-year limitations period following a state’s denial of post-conviction relief (the merits briefs can be found here). If the Court concludes that the certiorari petition does not toll the limitations period, Lawrence asks the Court to consider whether equitable tolling is appropriate.

Mary Catherine Bonner of Fort Lauderdale will argue on behalf of petitioner Gary Lawrence. Christopher Kise of Foley & Lardner, LLP will argue on behalf of respondent State of Florida. The parties’ briefs are available here.

In March 1995, a Florida jury convicted Lawrence of premeditated murder in the first degree, conspiracy to commit murder, auto theft, and petty theft following the brutal beating death of his wife’s lover. Following the jury’s recommendation, the trial court sentenced Lawrence to death. On appeal, the Supreme Court of Florida affirmed, and his conviction became final on January 20, 1998. The State of Florida provided Lawrence with counsel, who took an active role in his case on November 5, 1998. Lawrence then filed a motion for state post-conviction relief on January 19, 1999, 364 days after direct review was finalized, arguing primarily that his trial counsel had rendered ineffective assistance. The trial court denied the motion, and on October 17, 2002 the Supreme Court of Florida affirmed. Lawrence then filed a petition for writ of certiorari in the Supreme Court on January 9, 2003.

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In addition to Lyle’s post regarding tomorrow’s argument in Philip Morris v. Williams, more articles about the case are available here from the AP, here in the Christian Science Monitor, and here from Legal Times (via How Appealing).

In a National Law Journal article here, David Drachsler urges the Court to experiment with some form of video broadcasting.

At Above the Law, voting has ended in the poll asking for people’s least favorite justice; click here to see who “won.”

The Washington Post had this story about the hiring of last term’s Supreme Court clerks.

The Supreme Court has just posted the transcripts for both of today’s arguments here.

Today, the Stanford Supreme Court Litigation Clinic filed this reply brief in the case of Burton v. Waddington (05-9222). Professor Jeff Fisher will argue the case before the Court and, working in conjunction with Brian Tsuchida and Laura Mate of the Federal Public Defender’s Office in Seattle, he is responsible for the brief; the team of students who worked on it with him includes David Thompson, Rae Woods, and Erik Zimmerman. The case is set to be argued on Tuesday, November 7.

The petitioner’s brief in this case is available here, and the respondent’s brief is available here; several amicus briefs are also available here.

The question presented is:

“Petitioner was given an exceptional sentence of 258 months above the 304 month ceiling of the statutory sentencing range, and this Washington State sentence became final after Apprendi v. New Jersey, but before Blakely v. Washington:

1. Is the holding in Blakely a new rule or is it dictated by Apprendi?
2. If Blakely is a new rule, does its requirement that facts resulting in an enhanced
statutory maximum be proved beyond a reasonable doubt apply retroactively?”

Today’s edition of “Conference Call” in Legal Times (click here; subscription req’d) features petitions to watch for the Justices’ Conference of 11/3. Our SCOTUSblog supplement for this Conference, featuring downloadable versions of all of the highlighted petitions, can now be found here.

Previous editions of this feature can be accessed via the “Term Tracker” link.

Much of the argument in Philip Morris USA v. Williams (05-1256) on Tuesday (10 a.m.) will focus on what the Supreme Court meant as it sought over the past decade to refine constitutional “guideposts” on how heavily a corporation may be punished for wrongdoing. But over-hanging the one-hour of legal inquiry will be the simple fact that this case is about the tobacco industry and harms suffered by smokers. It thus pits familiar gladiators debating broad cultural questions over whether and how to make Big Tobacco pay.

Perhaps symbolic of the case’s life-or-death overtones, a group called the Center for a Just Society has filed an amicus brief discussing how punitive damages should be used as a measure of the value of human life.

Business groups, on their side of the case, see it as an ultimate test of their ability to compete in global markets, with many industries tying their fate to that of Philip Morris.

If a Portland, Ore., widow, Mayola Williams ultimately wins the case, she would stand to get $79.5 million in punitive damages and $521,485.40 in compensatory damages. Her late husband, Jesse Williams, died of lung cancer – a heavy smoker, mainly of Philip Morris’ Marlboro cigarettes.

Mrs. Williams’ lawsuit was a wide-ranging attack on 50 years of the company’s conduct, and her lawyers urged the jury to impose heavy punitive damages – not only for the harms done to Jesse Williams, but to other, unidentified Oregonians, many of whom, they argued, would get lung cancer after smoking Marlboros. They told the jury: “It’s fair to think about how many other Jesse Williams in the last 40 years in the state of Oregon there have been.”

The verdict in her favor, and the way it was reached, led to the legal questions at stake: how high can punitive damages go in relation to compensatory awards, may some kinds of corporate misconduct be punished far more heavily than others (for example, actions that arguably result in human death or injury), and may a punitive damages verdict be based in part on harms to victims who were not involved in a case as parties?

On Tuesday, the case will be argued for Philip Morris by Andrew L. Frey of the New York office of Mayer, Brown, Rowe & Maw, and, for Mayola Williams, by Robert S. Peck of the Center for Constitutional Litigation, based in Washington.

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The Supreme Court on Monday released the calendar of cases to be argued in the January sitting, beginning Monday, Jan. 8 (download here). Here are the cases, day by day, with a summary of the issues at stake:

Mon., Jan. 8
Moylan v. Camacho (06-116) — tax valuation method in Guam under its organic act; also, Court-added question on time of filing for Supreme Court review. (QP)
United Haulers Association v. Oneida-Herkimer Solid Waste Authority (05-1345) — local government power to control disposal of solid wastes. (QP)

Tue., Jan. 9
Sinochem International v. Malaysia International Shipping (06-102) — court power to dismiss case because the forum is inconvenient. (QP)
Schriro v. Landrigan (05-1575) — duty of defense lawyer in capital sentencing to offer mitigating evidence even if the client opposes any such maneuver. (QP)

Wed., Jan. 10
Zuni Public School District v. Department of Education (05-1508) — formula for federal aid to public school districts that include a federal facility or an Indian reservation. (QP)
Davenport v. Washington Education Association (05-1589) and Washington v. Washington Education Association (05-1657) — state power to restrict labor unions’ political use of non-members’ dues (cases consolidated for 1 hour of argument). (QP in 1589, QP in 1657)

Mon., Jan. 15 – legal holiday, no arguments

Tue., Jan. 16
Safeco v. Burr 06-84) and GEICO v. Edo (06-100) — definition of willfulness under federal truth-in-credit law (cases consolidated for 1 hour of argument). (QP in 84, QP in 100)
Travelers Casualty v. Pacific Gas (05-1429) — right to recover attorneys’ fees in bankruptcy. (QP)

Wed., Jan. 17
Abdul-Kabir v. Quarterman (05-11284) and Brewer v. Quarterman (05-11287) — capital jury duty to fully consider all mitigating evidence; Fifth Circuit duty to follow Supreme Court precedent (cases consolidated for 1 hour of argument). (QP in 11284, QP in 11287)
Smith v. Texas (05-11304) — capital jury duty to fully consider all mitigating evidence; Texas state courts’ duty to follow Supreme Court precedent. (QP)