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Tuesday round-up

Bill Mears at CNN reports on yesterday’s cert. grant in Bruesewitz v. Wyeth, in which the Court will consider whether and when vaccine manufacturers can be sued outside of the special “vaccine court” established by Congress to address vaccine-related injuries.  At the BLT, Tony Mauro notes that Chief Justice Roberts – who owns Pfizer/Wyeth stock – recused himself from the decision to grant cert. in the case.

At the L.A. Times and in its blog, David Savage covers the cert. grant in Snyder v. Phelps, describing the case as one in which the Court will “decide the outer-limits of free speech protection for public protests”; Bill Mears at CNN also previews the case.  At PrawfsBlawg, Howard Wasserman expresses concern that the Court will use the case to “further limit the scope of public-space expression.” The ACSblog, the Huffington Post, and Tony Mauro at the BLT also report on the story.

Elsewhere in the blogosphere, Eugene Volokh at the Volokh Conspiracy has a series of posts in which he argues that the Court should uphold the Fourth Circuit’s decision, “notwithstanding the speech involved,” because the relevant tort is “facially overbroad and thus unconstitutional as applied to speech.”  Volokh also applies the standard outlined in the lower court judgment to hypothetical situations and concludes that upholding the decision would “lead to the restriction of much more valuable speech.”

Ashby Jones at the WSJ Law Blog recaps last week’s “Privileges or Immunities” debate in the McDonald v. City of Chicago oral argument.  Although most of the justices seemed unreceptive to the argument, Jones speculates that Justice Thomas may be “the lone Court member who is willing to incorporate the Second Amendment to the states through the Privileges or Immunities Clause.”  At the Volokh Conspiracy, Orin Kerr also discusses the Court’s apparent unwillingness to expand the Privileges or Immunities Clause and opines that the Constitution is at least partly responsible for that hesitation, as it requires that justices be nominated and confirmed by politicians, who are simply “not likely to favor someone who they think will exercise the power of the office in unexpected ways.”

Robert Barnes at the Washington Post recaps yesterday’s decision in Milavetz, Gallop & Milavetz v. United States, explaining that the Court’s narrow interpretation of the statute at issue “only reinforces rules prohibiting lawyers from giving unethical advice.”  At the Bankruptcy Litigation Blog, Steve Jakubowski applauds the Court for reading the statute in a way that does not restrict “full and frank” discussions between lawyers and their clients. Ashby Jones at the WSJ Law Blog and Tony Mauro at the BLT also have coverage.

Bob Egelko at the San Francisco Chronicle reports on yesterday’s cert. grant in NASA v. Nelson.  At the Volokh Conspiracy, Eugene Volokh compares background checks to a police officer conducting a criminal investigation and predicts that the Court will reverse because there is no “constitutional right not to have the government ask other questions about you.”

In his Sidebar column at The New York Times, Adam Liptak discusses the strategy behind reading an oral dissent from the bench, noting the public relations and ideological factors that may go into a justice’s decision. The number of oral dissents has increased significantly on the Roberts Court, a trend that Liptak writes is “suggestive of an increasingly polarized court.”

Also at the Washington Post, op-ed columnist E.J. Dionne, Jr. urges both parties to enact the Schumer-Van Hollen campaign finance bill to “put boundaries” on the Court’s controversial Citizens United opinion and “make executives think twice before unleashing their companies’ treasuries.”


  • At the Volokh Conspiracy, John Elwood speculates on who may be writing the four opinions remaining from the October sitting; among his predictions is that either Justice Kennedy or Justice Stevens will write the majority opinion in United States v. Stevens.
  • Adam Liptak at The New York Times covers the cert. grants in Snyder v. Phelps and NASA v. Nelson and the decision in Milavetz.  Robert Barnes at the Washington Post also has a general overview of Monday’s proceedings.
  • The Seattle Times has an editorial that characterizes Washington State’s constitutional right to own a gun as a model for “reasonable regulations” and encourages the justices to clarify federal gun laws in its McDonald opinion in a way that still allows the states “a strong power to protect public safety.”
  • Tony Mauro at the NLJ reports on a recent poll regarding, among other things, cameras in the courtroom and life tenure for judges. More than sixty percent of those polled agreed that cameras in the courtroom would be “good for democracy.”