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Tuesday round-up

Legal news was dominated by coverage of U.S. District Judge Henry E. Hudson’s decision in Commonwealth of Virginia v. Sebelius, which deemed unconstitutional a provision in the health care reform law requiring virtually all Americans to purchase health insurance by 2014.  (Lyle provides coverage and analysis here.)  Some of that coverage focused on when the challenges to health care reform might reach the Court, and what might happen once there.  The Washington Post Virginia Politics Blog and the Los Angeles Times report that U.S. Rep. Eric Cantor and Virginia Governor Bob McDonnell are calling on the Obama administration to join Virginia Attorney General Ken Cuccinelli in expediting the Court’s consideration of the case.  At Balkinization, Jason Mazzone suggests that “Judge Hudson’s opinion is written for Justice Scalia,” and that, “once read in light of Scalia’s concurring opinion in [Gonzales v.] Raich, Judge Hudson’s analysis is considerably more coherent than his critics allow.”  At Concurring Opinions, Frank Pasquale expresses concern that, “[i]f the Supreme Court affirms [Sebelius], we are well on our way to a new Lochner era.”

Yesterday’s affirmance, by an equally divided Court, in Costco v. Omega generated headlines and debate. Lyle offers analysis here. Daniel Fisher of Forbes discusses the implications of the ruling, noting that “[m]anufacturers that like to engage in price discrimination by selling goods overseas for prices below what they charge in more affluent markets now have a powerful tool to prevent retailers from importing those goods and selling them in the U.S.”  David Kravets of’s Threat Level blog (via Howard Bashman at How Appealing) believes that the ruling goes further, arguing that now “it might be copyright infringement to re-sell your used computers, mobile phones and tablet computers produced in China.”  The Associated Press (via the Washington Post), Bloomberg, the ABA Journal, and JURIST also have coverage.

Two cases in which the Court denied cert. yesterday garnered significant attention as well.  With the Court’s denial in ­­­­­Tuck-It-Away, Inc. v. N.Y. State Urban Development Corp., Columbia University can move ahead with plans for a multi-billion-dollar expansion of its Manhattan campus.  Bloomberg has a detailed report on the case and notes that Tuck-It-Away has not ruled out seeking rehearing of the Court’s denial; the Associated Press (via the Washington Post) also has coverage.  The Court also denied cert. in Cahill v. Alexander, a case involving New York’s rules of professional conduct that regulate law firm advertisements.  Nathan Koppel of the Wall Street Journal’s Law Blog discussed the implication of the denial, arguing that “attorneys, at least in New York, should have a bit more creative license” in designing advertisements.  Martha Neil of the ABA Journal construes the denial of cert. as a sign that the Court has “apparently turned a friendly eye on the use of law firm slogans and descriptive trade names that include a bit of chest-beating.”  The Associated Press (via the Washington Post), the Christian Science Monitor, and Constitutional Law Prof Blog also have coverage.

In her first interview since joining the Court, Justice Elena Kagan told C-SPAN that she is facing a “steep learning curve” as she is drafting her first opinions and trying to acclimate to life as a judge.  Justice Kagan also described her approach to writing opinions, and she disclosed that she sometimes uses a Kindle to read Court briefs.  The full video and transcript of the interview are available at C-SPAN.  The Associated Press (via the Los Angeles Times), NPR, ABA Journal, First One @ One First, and Law School Innovation have coverage and commentary.


  • In his Sidebar column for the New York Times, Adam Liptak discusses the Court’s occasional practice of appointing lawyers to argue issues abandoned by the parties.
  • Representative Michele Bachmann is organizing a course on the Constitution for incoming members of Congress.  She recently announced that Justice Scalia will teach the inaugural class session.
  • Michael Doyle of McClatchy Newspapers tells the “long-shot” story of United States v. Tapia’s road to the Supreme Court.
  • Kent Scheidegger at Crime and Consequences Blog laments the denial of cert. in Allen v. Lawhorn, agreeing with the dissenters that AEDPA’s aims have been subverted by courts reviewing penalty phases of capital cases: “We have reached a point where federal court review of state penalty phase determinations is causing more harm than good.”

Recommended Citation: Andrew Breidenbach, Tuesday round-up, SCOTUSblog (Dec. 14, 2010, 9:41 AM),