This edition of "Petitions to watch" features cases up for consideration at the Justices' November 23 conference.  These are petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues.

Smith v. United States

Docket: 10-18
Issue(s): Whether, when a trial judge’s restriction on the cross-examination of a prosecution witness is challenged on appeal as a violation of the Confrontation Clause, the proper standard of review is de novo or abuse of discretion.

Certiorari stage documents:

Johnson v. Estate of Terry Gee, Jr.

Docket: 10-86
Issue(s): Whether a jail official who defers to treatment decisions of medical professionals working within the jail facility can still be considered to be deliberately indifferent to serious medical needs of an inmate in violation of the Fourteenth Amendment.

Certiorari stage documents:

Webster v. United States

Docket: 10-150
Issue(s): Whether the Supreme Court can review a decision by a court of appeals that it lacks jurisdiction to review a federal prisoner’s motion based on newly discovered evidence that the prisoner is mentally retarded and therefore constitutionally ineligible for execution, even if that evidence does not negate the prisoner’s guilt; whether, if AEDPA precludes a successive habeas petition in such a scenario, it is unconstitutional.

Certiorari stage documents:

Cook County, Illinois v. Thomas

Docket: 10-180
Issue(s): (1) Whether the lower court properly held that the issuance of a "no duplication of damages" instruction to the jury in a Section 1983 case cures any error resulting from incorrect adjoining instructions that invited the jury to assess damages "by defendant" and "by claim" and to decide the legal question of joint liability; and (2) whether the adjudication of constitutional tort claims against multiple defendants for a single, indivisible injury violates either the law of damages in Section 1983 actions or the defendant’s Seventh Amendment right to a fair trial.

Certiorari stage documents:

CSX Transportation v. McBride

Docket: 10-235
Issue(s): Whether the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60, requires proof of proximate causation.

Certiorari stage documents:

Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (Granted )

Docket: 10-238
Issue(s): (1) Whether the First Amendment forbids states from providing additional government subsidies to publicly financed candidates that are triggered by independent expenditure groups' speech against such candidates; and (2) whether the First Amendment forbids states from providing additional government subsidies to publicly financed candidates that are triggered by the fundraising or expenditures by these candidates' privately financed opponents.

Certiorari stage documents:

McComish v. Bennett (Granted )

Docket: 10-239
Issue(s): (1) Whether Arizona's matching funds trigger, which provides publicly financed candidates with additional subsidies that are triggered by independent expenditures or by the raising and spending of money by privately financed candidates and their supporters, violates the First and Fourteenth Amendments; and (2) whether the Arizona law violates the First and Fourteenth Amendments by regulating campaign financing to equalize resources among competing candidates and interest groups, rather than advancing a compelling state interest in the least restrictive manner.

Certiorari stage documents:

Wal-Mart v. Dukes (Granted )

Docket: 10-277
Issue(s): (1) Whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2) and, if so, under what circumstances; and (2) whether the class certification ordered under rule 23(b)(2) was consistent with rule 23(a).

Certiorari stage documents:

Douglas v. Santa Rosa Memorial Hospital (Granted )

Docket: 10-283
Issue(s): Whether Medicaid recipients and providers may maintain a cause of action under the Supremacy Clause to enforce § 1396a(a)(30)(A) by asserting that the provision preempts a state law reducing reimbursement rates.

Certiorari stage documents:

City of Colton v. American Promotional Events, Inc.-West

Docket: 10-284
Issue(s): Whether the declaratory judgment provision of § 113(g)(2) of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") preempts the Declaratory Judgment Act as applied in the CERCLA context, thereby precluding CERCLA plaintiffs from asserting declaratory relief claims for future clean-up costs if they cannot recover past clean-up costs.

Certiorari stage documents:

Hall v. Ward

Docket: 10-288
Issue(s): (1) Whether the Eleventh Circuit misapplied 28 U.S.C. § 2254(e)(1) by failing to give any deference to the state habeas court's factual findings on a habeas petitioner's juror/bailiff misconduct claim; and (2) whether the Eleventh Circuit's finding of prejudice conflicts with Supreme Court precedent insofar as it found that the habeas petitioner failed to establish that the trial court did not answer any question posed by the jury, and when it disregarded the factual findings of the state habeas court that any information provided to the jury was not reversible error; and (3) whether the Eleventh Circuit's decision, which relied on evidence that was not admitted to assess prejudice and harm, conflicts with Supreme Court and circuit precedent.

Certiorari stage documents:

Microsoft v. i4i Limited Partnership (Granted )

Note: Goldstein, Howe & Russell represent 3M Company et al. as amici curiae in support of respondents.
Docket: 10-290
Issue(s): Whether the invalidity defense provided for in the Patent Act, 35 U.S.C. § 282, must be proved by clear and convincing evidence.

Certiorari stage documents:

Tiffany (NJ) Inc. v. eBay

Docket: 10-300
Issue(s): Whether, under the doctrine of contributory trademark infringement, a defendant can be held liable for operating a marketplace that it knows is used to sell substantial quantities of goods that infringe a plaintiff's trademark, even if it does not know that particular goods are infringing.

Certiorari stage documents:

Dunn v. Louisiana

Docket: 10-386
Issue(s): Whether a court's modification of the three-step Batson v. Kentucky analysis, requiring the defense to prove that its strikes were not motivated by race, while simultaneously requiring it to prove that the state's strikes were motivated by race, violates the Sixth and Fourteenth Amendments.

Certiorari stage documents:

Guevara v. Republic of Peru

Docket: 10-389
Issue(s): Whether the "direct effect" clause of the commercial activity exception to the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(2), requires evidence that a "legally significant act" occurred within the United States to vest U.S. courts with jurisdiction over a foreign sovereign.

Certiorari stage documents:

Bryant v. Media Right Productions, Inc.

Docket: 10-415
Issue(s): Whether statutory damages against a copyright infringer who makes an unauthorized digital copy of a music album, then offers individual songs from the album for sale or distribution on the Internet, are calculated on a per-album or per-song basis.

Certiorari stage documents:

Werner v. Peak Alarm Company, Inc.

Docket: 10-430
Issue(s): (1) Whether a police officer lacks probable cause to momentarily detain a person who subjectively believes that he did not commit any crime and, if so, whether the office is entitled to qualified immunity; and (2) whether the Utah Supreme Court erred when it failed to analyze whether the police officers could have reasonably believed that probable cause existed under the circumstances.

Certiorari stage documents:

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DISCLOSURE: Akin Gump and Howe & Russell represent one of the parties in the case below; the case is listed here without regard to its chances of being granted.

Bannister v. Illinois

Note: Akin Gump and Howe & Russell represent the petitioner in this case.
Docket: 09-1576
Issue(s): Whether the prosecution's presentation of testimony at trial subject to a consistency provision in a plea agreement - that is, a provision binding the witness to testify consistently with prior statements made to the police or prosecutors while not under oath - contravenes the Due Process Clause.

Certiorari stage documents:

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The following petitions have been re-listed for the conference of November 23.  If any other paid petitions are re-distributed for this conference, we will add them below as soon as their re-distribution is noted on the docket.

Beer v. United States

Docket: 09-1395
Issue(s): Whether the Compensation Clause of Article III prevents Congress from withholding the future judicial salary adjustments established by the Ethics Reform Act of 1989.

Certiorari stage documents:

Alderman v. United States

Docket: 09-1555
Issue(s): Whether Scarborough v. United States (1977) recognizes a distinct Commerce Clause authority, beyond the three categories recognized in United States v. Lopez (1995), United States v. Morrison (2000), and Gonzales v. Raich (2005), such that a federal statute which “cannot be justified as a regulation of the channels of commerce, as a protection of the instrumentalities of commerce, or as a regulation of intrastate activity that substantially affects interstate commerce,” may be sustained based on a “minimal nexus” between the activity regulated and interstate commerce.

Certiorari stage documents:

Allen v. Lawhorn

Docket: 10-24
Issue(s): Whether a state court’s determination that trial counsel’s waiver of a penalty-phase closing argument did not prejudice the defendant is “contrary to” Supreme Court precedent.

Certiorari stage documents:

Harper v. Maverick Recording Company

Docket: 10-94
Issue(s): Whether the "inadvertent innocent infringer" defense to copyright infringement should be eliminated for all Internet music downloading.

Certiorari stage documents:

Posted in Cases in the Pipeline

Recommended Citation: Christa Culver, Petitions to watch | Conference of 11.23.10, SCOTUSblog (Nov. 22, 2010, 2:02 PM), https://www.scotusblog.com/2010/11/petitions-to-watch-conference-of-11-23-10/