Six of the 13 Chinese Muslim (Uighur) detainees seeking their release in a Supreme Court case were transferred early Saturday to live in the island nation of Palau, their attorneys disclosed this afternoon.  The 13, no longer considered enemies, have been at Guantanamo Bay for nearly seven and a half years.  They were granted review by the Court on Oct. 20 in Kiyemba, et al., v. Obama, et al. (08-1234).  The case is expected to be heard in February or March.  Of the seven Uighurs remaining at Guantanamo, one has been offered no opportunity for resettlement.  The potential transfers of the other six remains uncertain.

Resettled in Palau were Edham Mamet, Ahmad Tourson, Enver Hassan, Dawut Abdurehim, Abdul Ghaffar and Adel Noori.  The Uighurs still at Guantanamo are Arkin Mahmud and Bahtiyar Mahnut, who are brothers; Hammad Memet, Abdul Razakah, Abdul Sabour, Khalid Ali and Sabir Osman.  All but Mahmud have been offered resettlement, but that has not yet occurred.

The Supreme Court will hear oral argument at 11 a.m. Monday in Shady Grove Orthopedic Associates v. Allstate Insurance Co. (08-1008). Scott L. Nelson of Public Citizen Litigation Group, Washington, will be representing the Shady Grove, MD, clinic in the case, and Christopher Landau of Kirkland & Ellis, Washington, will be representing the insurance company.  The briefs and other filings in the case are available at this link on ScotusWiki.

Argument Preview

The venerable precedent that requires federal courts to decide some civil lawsuits based on state, not federal, law — the 1938 decision in Erie Railroad v. Tompkins — will be examined anew as the Supreme Court confronts the ongoing dispute between consumers and businesses over “class actions,” court cases that seek sometimes large damage verdicts for a broad group that has a common legal grievance.  In this case, what started as a $500 claim by an individual litigant potentially could lead to a $5 million class verdict.

Background

Sometimes conflicting patterns of history run together when a consumer lawsuit challenging a business is taken to federal court, and the consumer’s individual complaint is one that is shared by others — perhaps many others.  Chances are, in modern times, that lawsuit will be filed as a “class action.”  The modern history of “class actions”  has produced an ongoing debate between consumer and business adversaries, and the Supreme Court is fairly frequently drawn into the debate.

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On November 19, a panel of experts at American University’s Washington College of Law will address the potential consequences for patent law of Bilski v. Kappos, which will be argued on November 9. All of the speakers are counsel to either parties or amici in the case.  The program will be broadcast live online; details to attend on-site are available in the attached flyer.

The panelists include:

• Raymond Chen, Solicitor, U.S. Patent and Trademark Office, Counsel for Respondent
• J. Michael Jakes, Finnegan Henderson, Counsel of Record for Petitioners
• Nancy Linck, Rothwell Figg, Counsel for Amicus BIO
• Randolph Moss, WilmerHale, Counsel for Bank of America et al.

The moderators are:

• Thomas Goldstein, Akin Gump, Counsel for Amicus American Bar Association
• Prof. Joshua Sarnoff, Washington College of Law, American University, Counsel for Amici Eleven Law Professors and the AARP

The debate is heating up over one of November’s first arguments: three publications have coverage today on Jones v. Harris Associates (08-586), which will be argued before the Supreme Court on Monday.  At the Wall Street Journal, Jess Bravin and Jane J. Kim assess the case’s core issues, while USA Today has an article detailing Jones’ background, enumerating the arguments, and speculating on potential outcomes, including the possibility that the Court will order mutual funds to pursue stricter disclosure policies with regard to their spending.  Conglomerate Blog also previews Jones, offering a detailed recap of the lower court proceedings.

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Lawyers for a Yemeni national held at Guantanamo Bay, who won a court order for his release more than seven months ago but remains detained, have urged the Supreme Court to take up his case promptly now that a lower appeals court has put it on hold.  A letter said that review of his case by the Justices, without waiting for lower courts, is “the appropriate recourse.” The case is Basardh v. Gates et al. (08-10982), now scheduled for Friday’s private Conference of the Justices.  Attorneys for Yasin Muhammed Basardh filed the letter Tuesday; it was received and released by the Court Thursday.

U.S. District Judge Ellen Segal Huvelle in March found that Basardh’s detention was no longer justified, after more than seven years, because the government had not shown that he would return to military action with a terrorist network; he had served earlier with terrorist forces.  A prospect of return to an active military role is the only basis for detention under current federal law, Huvelle ruled.  The government has challenged that ruling in the D.C. Circuit Court, and Basardh has filed his own appeal there, arguing that he was entitled to immediate release.  Earlier this month, at the government’s request, the Circuit Court put the cases (now consolidated) on hold, pending a Supreme Court ruling in Kiyemba et al. v. Obama et al. (08-1234).  The Justices have since granted review of Kiyemba.

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U.S. Solicitor General Elena Kagan notified the Supreme Court on Thursday that the government will be filing a new brief, probably next week, to discuss the impact of new legislation on a pending dispute over the public release of scores of photos showing torture or other abuse of detainees by U.S. military personnel in Iraq and Afghanistan.  The letter is here.  The Court has been scheduled to consider the government’s appeal — Defense Department v. American Civil Liberties Union (09-160) – at Friday’s private Conference. President Obama on Wednesday signed into law a new funding bill that gives the Pentagon authority to withhold release of those photos.

This edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference tomorrow, October 30.  As always, it lists the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted.  Links to all previous editions are available in our SCOTUSwiki archive.

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Joan Biskupic will discuss her new biography of Justice Scalia, American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia, at the National Constitution Center in Philadelphia on Wednesday, November 18.  Marcia Coyle of The National Law Journal will moderate.  Biskupic is the Supreme Court correspondent for USA Today and also authored a biography of Sandra Day O’Connor.  Details on the event are available here.

Updates on the living legacies of Iqbal, Caperton, Medtronic, and Heller appear after the jump.

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Below, Sina Kian of Stanford Law School previews Hertz Corporation v. Friend, one of two cases to be heard by the Supreme Court on Tuesday, November 10. Check the Hertz Corp. v. Friend (08-1107) SCOTUSwiki page for additional updates.

Hertz Corp. v. Friend poses a question that has surprisingly escaped the Supreme Court’s attention until now: where is a corporation’s “principal place of business”?  Hertz argues that its “principal place of business” is its corporate headquarters in New Jersey.  The respondents favor a multi-factor approach that in this case points to California.  There is a good reason for the Court’s delay in addressing the question: until the recently passed Class Action Fairness Act of 2005 (“CAFA”), remand orders were generally insulated from appellate review. Assuming the Court does not dismiss the case on other grounds, its holding will determine the scope of diversity jurisdiction under §1332, and will almost certainly join Iqbal in next year’s batch of Civil Procedure textbooks.

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Analysis

President Obama on Wednesday signed into law a new Pentagon funding bill, and with his signature very likely generated a new issue for the Supreme Court when it reviews Kiyemba et al. v. Obama et al. in late winter — did Congress have the authority to put limits on transfers of prisoners out of Guantanamo Bay, Cuba?  A section of the National Defense Authorization Act — Sec. 1041 — seeks to assert congressional control over much of detainee policy for those held at Guantanamo.  (The text of Section 1041 has been reproduced here.)

(UPDATE: The President also signed into law on Wednesday a bill providing spending allowances for the Department of Homeland Security, containing a similar ban on releasing Guantanamo detainees into the U.S., and putting other restrictions on detainee policy. [The text of those provisions has been reproduced here.] They raise the same issue for the Kiyemba case.)

Congress did not say so, in specific terms, but the new provisions would appear to bar the government from carrying out a court order requiring that a detainee be released from Guantanamo to live in the U.S. — exactly the kind of order that the Kiyemba detainees once obtained, and are now seeking to reinstate.  That sets up a potential clash between Congress’s constitutional authority to legislate and the courts’ constitutional authority to provide remedies when they find an individual’s detention to be illegal.  In constitutional terms, it pits the Spending Clause against the Suspension of the Writ Clause.

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According to Dow Jones Newswires (appearing in the Wall Street Journal), three Democratic lawmakers plan to introduce a bill next week that would override the U.S. Supreme Court’s ruling in Ashcroft v. Iqbal by lowering the standards for a case to move to the discovery stage.  Author Kristina Peterson writes that reversing the Iqbal opinion could “make it far more difficult for companies to dismiss lawsuits before starting the expensive discovery process.” Democrats believe that the current standards discourage citizens from bringing “discrimination to the discovery stage.” Rep. Henry Johnson (D-GA) called the Supreme Court decision an “unexpected gift for the business community,” while Rep. Jerrold Nadler (D-NY) criticized it for “effectively slam[ming] shut the courthouse door on legitimate plaintiffs based on the judge’s take on the plausibility of a claim, rather than on the actual evidence.”

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Below, Brian Goldman of Stanford Law School previews Hemi Group, LLC v. City of New York, one of three cases to be heard by the Supreme Court on Tuesday, November 3. Check the Hemi Group, LLC v. City of New York (08-969) SCOTUSwiki page for additional updates.

On Tuesday, November 3, the Court will hear oral argument in Hemi Group, LLC v. City of New York, No. 08-969.  The case presents the Court with an issue being watched closely by state and local governments nationwide: whether such governments may bring civil suits to recover non-commercial losses – such as uncollected taxes – under the Racketeer Influenced and Corrupt Organizations Act (RICO), which confers standing upon “any person injured in his business or property by reason of a violation of” RICO’s criminal prohibitions.

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A number of events were held this month and last to preview the Court’s 2009 term.  Audio and/or video coverage of several are posted below the jump.  To see more details about each event, click on the host organization’s name.

Pamela Harris at Georgetown Law Center’s Supreme Court Institute has also written a comprehensive Term preview report, as well as an update for cases the Court agreed to hear during September and October.

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Below, Anthony Dick of Stanford Law School previews Schwab v. Reilly, one of three cases to be heard by the Supreme Court on Tuesday, November 3. Check the Schwab v. Reilly (08-538) SCOTUSwiki page for additional updates.

Section 522 of the Bankruptcy Code permits debtors to claim certain exemptions, thereby retaining some assets free from the claims of creditors in bankruptcy.  The Code also requires a party in interest (e.g., a creditor) to object to a claimed exemption within thirty days after the creditors’ meeting; once the thirty-day period has passed, any objections to the exemption are deemed waived, and the property claimed is fully exempt.

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Adam Liptak at the New York Times covers the continuing legal battle over gay marriage, and in particular the lawsuit – filed by former Solicitor General Ted Olson – pending before U.S. District Judge Vaughn Walker in California.  Liptak notes that public support for gay marriage is not as widespread as the support for homosexual sex and interracial marriage when the Supreme Court ruled on those issues.  He quotes Andrew Koppelman of Northwestern Law School, who posits that arguments in favor of gay marriage “will have trouble attracting votes from the current justices.”  The San Francisco Chronicle also covers Judge Walker’s decision to order sponsors of California’s ban on same-sex marriage to release campaign strategy documents.  Opponents of the ban believe that the documents may contain “evidence of anti gay bias” that would be helpful in their fight to overturn it.  Judge Walker’s continuing push for a full trial leads many to believe that he is preparing the matter for eventual Supreme Court review.

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