The Supreme Court heard oral argument on Wednesday in the case of Thedrick Edwards, a Louisiana man serving a life sentence for his role in a series of crimes in 2006. The jury that convicted Edwards, who is Black, was not unanimous; the lone Black juror voted to acquit him. In April 2020, the Supreme Court ruled in Ramos v. Louisiana that the Sixth Amendment establishes a right to a unanimous jury that applies in both federal and state courts. The court in Ramos was divided on both the result and the reasoning for its ruling, and the justices proved to be similarly divided on the question before them on Wednesday: whether their decision in Ramos applies retroactively to cases, like Edwards’, that had already become final. Continue reading »


Cameron T. Norris, counsel for CIC Services (Art Lien)

The Supreme Court in Tuesday’s argument in CIC Services v. Internal Revenue Service tried to clarify the scope of the Anti-Injunction Act, which generally prohibits lawsuits seeking to block the assessment or collection of a tax. The case specifically asks whether a company can sue to block the enforcement of an IRS notice that imposes certain reporting requirements, or whether the company must wait and sue only after the IRS assesses tax penalties for non-compliance with the notice. To arrive at an answer to that question, the court will have to resolve a clash between the AIA and another important federal statute: the Administrative Procedure Act. Continue reading »

Tuesday’s argument in Nestlé USA v. Doe I  and Cargill, Inc. v. Doe I addressed an important question about whether American companies can be held liable under the Alien Tort Statute. Less important to the larger world, but still important to those who practice law before the Supreme Court, has been a tempest over the role of the defendants’ lawyer, Neal Katyal. Liberals have gone after Katyal, who has generally been regarded as a progressive hero for very visibly taking on the Trump administration, for defending the companies in lawsuits alleging that they were involved in child slavery.

Because these sorts of attacks on lawyers in the Supreme Court have become more and more common, I thought it would be worth taking a moment to explain why I think they are so misguided. Katyal and I have also been on the opposite sides of a whole series of cases over the past few years, so I think I have a good sense of whether his arguments are extreme. And lawyers like Katyal are not really able to defend themselves, because the Justices expect them to stay largely silent while a case is pending. Continue reading »

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Wednesday round-up

By on Dec 2, 2020 at 9:29 am

In its final oral argument of the week, the Supreme Court will hear Edwards v. Vannoy on Wednesday, which involves non-unanimous jury verdicts. Earlier this year, the court decided in Ramos v. Louisiana that the Sixth Amendment guarantees a right to jury unanimity. Now, in Edwards, the justices must decide if that right applies retroactively to defendants who were convicted with non-unanimous juries before Ramos was decided. Our case preview is here. Continue reading »

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Neal Katyal argues for Nestlé and Cargill (Art Lien)

The Supreme Court heard oral argument on Tuesday in a pair of cases, Nestlé USA v. Doe I and Cargill, Inc. v. Doe I, that ask whether a lawsuit against American corporations under the Alien Tort Statute, which allows foreigners to bring lawsuits in U.S. courts for serious violations of international law, can continue. The plaintiffs in the case are six former child slaves in Ivory Coast, who contend that the defendants, both U.S. food giants, facilitated human-rights abuses on the cocoa plantations where the youths worked. Although the Supreme Court in the past has indicated that the kinds of claims that can be brought under the ATS are relatively limited, after nearly 90 minutes of debate today several justices appeared reluctant to rule that U.S. corporations like Nestlé and Cargill can never be sued under the statute. At the same time, it seemed that the two companies might nonetheless eke out a narrow win in this case, as some justices appeared skeptical that the plaintiffs’ allegations were enough to allow the case to proceed. Continue reading »

In April, the Supreme Court ruled in Ramos v. Louisiana that the Sixth Amendment establishes a right to a unanimous jury that applies in both federal and state courts. On Wednesday in Edwards v. Vannoy, the justices will hear argument on whether inmates whose convictions became final before that decision can now take advantage of it. Although only two states, Louisiana and Oregon, have allowed non-unanimous jury verdicts in recent years, those states say that a ruling for the inmates could “seriously strain” their systems by reopening many years’ worth of convictions.

The Sixth Amendment to the Constitution guarantees the right to an “impartial jury.” When it and the other amendments in the Bill of Rights were originally enacted, they were interpreted as applying only to the federal government – not to the states. Since then, however, the Supreme Court has ruled that some, and eventually most, of the Bill of Rights also applies to the states – a doctrine known as “incorporation” – through the 14th Amendment to the Constitution, which bars states from depriving anyone of “life, liberty, or property, without due process of law.” Continue reading »


Monday’s argument in Van Buren v. United States was the first sustained attention the Supreme Court has offered to the Computer Fraud and Abuse Act, a federal statute that imposes civil and criminal liability for unauthorized access of computers. The government in recent years has applied the statute ever more broadly, finally producing a confrontation in which the Supreme Court has an opportunity to address it.

The CFAA is vague in important ways, but it generally criminalizes obtaining access to a computer without authorization and also exceeding “authorized access” on the computer. The question in this case is what it means to “exceed authorized access,” which the statute defines as “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” A police officer in Georgia, Nathan Van Buren, was authorized to search computerized records about license plates for law-enforcement purposes. Duped by an FBI sting, he searched those records for private purposes (at the request of an FBI informant who offered to pay him several thousand dollars for the information). Because Van Buren was not authorized to search those records for that purpose, the government obtained a conviction under the CFAA on the grounds that he was “not entitled so to obtain” those records. Continue reading »


Tuesday round-up

By on Dec 1, 2020 at 9:14 am

The Supreme Court hears oral arguments Tuesday in cases that ask when companies can sue or be sued. First up is a pair of consolidated cases — Nestlé USA v. Doe I and Cargill, Inc. v. Doe I — in which the justices will decide whether the Alien Tort Statute allows citizens of Mali to sue American food corporations for violating international human rights norms. The plaintiffs say the corporations aided and abetted child slavery on cocoa plantations in Ivory Coast. Our preview is here. Next, the court will hear CIC Services v. Internal Revenue Service, which involves a company’s lawsuit seeking to block the IRS from enforcing certain requirements related to insurance transactions. The case involves the collision of the Anti-Injunction Act (which would seem to bar the pre-enforcement lawsuit) and the Administrative Procedure Act (which would seem to allow it). Our preview is here. Continue reading »

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Less than a week after the Supreme Court lifted New York’s COVID-related limits on attendance at worship services, a Christian school in Kentucky and the state’s attorney general asked the Supreme Court on Monday to allow in-person classes at faith-based schools. Danville Christian Academy and Kentucky Attorney General Daniel Cameron, a Republican, argued that the state’s Democratic governor, Andy Beshear, has treated religious schools less favorably than “a wide assortment of secular gatherings,” ranging from college basketball games and weddings to preschools and university classrooms.

The dispute centers on a Nov. 18 order in which Beshear closed all “public and private elementary, middle, and high schools.” A second order, issued the same day, allowed other in-person activities and gatherings – such as theaters, bowling alleys, wedding venues and offices – to remain open, subject to attendance or capacity limits. Continue reading »

The Supreme Court heard oral argument on Monday in Trump v. New York, the challenge to the Trump administration’s plan to exclude people who are in the United States illegally from the state-by-state breakdown used to allocate seats in the House of Representatives. The stakes are high in the case: If the justices allow the administration to implement the plan before it leaves office in January, states with large immigrant populations could lose political power, while states with fewer immigrants could gain it. After over 90 minutes of debate, several justices seemed skeptical of the legality of President Donald Trump’s plan. But they spent relatively little time on that topic, focusing instead on whether the Supreme Court could or should weigh in now, and by the end it seemed very possible that they may not resolve the merits of the case immediately – if at all. Continue reading »

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