Thursday Round-up

By Adam Chandler
on Oct 29, 2009 at 10:21 am

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.

First, three matters currently before the Court: In an interview at Constitutional Law Prof Blog, Columbia law professor Gillian Metzger discusses Free Enterprise Fund v. Public Company Accounting Oversight Board, in which the Court will consider the constitutionality of the Sarbanes-Oxley Act’s creation of an accounting review board.  Metzger filed an amicus brief in the case, and she offers advice for other academics who want to write amicus briefs for the Court.

Andrew Longstreth of The American Lawyer writes about the Solicitor General’s recommendation on Tuesday that cert. be denied in Morrison v. National Australia Bank, a high-profile case from the Second Circuit asking how far overseas American securities fraud laws may reach.  The SEC has apparently shifted position somewhat in the case: it supported the foreign investors’ challenge in the Second Circuit but has signed on to the Solicitor General’s brief, which argues that the case was correctly dismissed by that court.

Finally, a Florida newspaper highlights the local context and nationwide implications of Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, in which the Court will hear oral arguments in December; the case involves a property dispute over state restoration of storm-eroded beaches.  (Disclosure: my law school clinic represents some of the respondents in the case.)

Now, updates on the fallout of four recent decisions by the Court.

Ashcroft v. Iqbal – Alison Frankel of The Am Law Litigation Daily covers yesterday’s House Judiciary Committee hearing (entitled “Access to Justice Denied—Ashcroft v. Iqbal”) on the effect of the Court’s decision.  Frankel catches up with former Solicitor General Gregory Garre, who won the case for the government.  Garre says he recognized the potential impact of the case all along; when asked whether he had cited it in any of his work since leaving the Solicitor General’s Office, he quipped “I’ve only been in private practice a month!”  Yesterday’s Round-Up included a report on plans by three Congressmen to introduce a House bill that would override the heightened pleading standards required by Iqbal.  Ashby Jones of the WSJ Law Blog also has a post about the proposed legislation.

Caperton v. A.T. Massey Coal Co. – The Wisconsin Supreme Court, by a vote of four to three, adopted rules allowing judges to hear cases involving their campaign contributors.  The rules were added to the judicial code of conduct and were proposed by two powerful Wisconsin business groups.  Wisconsin is one of the first states to consider recusal rules in light of the Court’s decision in Caperton.  (Milwaukee Journal Sentinel, Associated Press (via The La Crosse Tribune))

Riegel v. Medtronic – A second batch of products liability suits against Medtronic, Inc., a medical device manufacturer, has been dismissed in the wake of the Court’s 2008 decision in Riegel v. Medtronic, holding that state law tort claims are pre-empted when the FDA grants pre-market approval to a medical device.  Six hundred such claims were dismissed yesterday; one thousand more had been dismissed in January.  (Minneapolis Star-Tribune, Reuters (via Insurance Journal))

District of Columbia v. Heller – Declan McCullagh of CBSNews.com writes about last week’s decision by a New Jersey appellate court upholding a state law that prohibits the issuance of a handgun purchase permit if “issuance would not be in the interest of the public health, safety or welfare.” In that court’s view, Heller has no impact on the statute’s constitutionality.

Two final items: The Chicago Tribune is the latest newspaper to express disapproval of the Supreme Court’s decision not to review Virginia v. Harris, a case involving the constitutionality of traffic stops based on anonymous tips.  And on his blog, Yale law professor Jack Balkin discusses originalism and race, concluding that “Bolling v. Sharpe and Loving v. Virginia pose the real problems for Justice Scalia’s methodology when it comes to race. In public settings, people should stop asking him about Brown v. Board of Education.”