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Monday round-up

After another relatively quiet week at the Court, the weekend’s clippings focus on last week’s oral arguments in Kiobel v. Royal Dutch Petroleum Co., the decision in Kurns v. Railroad Friction Products, and next Term’s Fisher v. University of Texas.

Last Tuesday, the Justices heard oral arguments in Kiobel, the case that asks the Court to consider whether the Alien Tort Statute (ATS) allows foreigners to bring suit against corporations in U.S. federal courts for violations of international human rights laws. In his column for Bloomberg View, Noah Feldman concludes that, based on the Justices’ questions at oral argument, the case will focus as much on whether federal courts are the right place to hold foreigners responsible for human-rights violations as it will on whether corporations can be held liable at all. At Jost on Justice, Kenneth Jost speculates that if the Justices’ questions “are any indication – and they often are – Kiobel and the other plaintiffs are likely to . . . have the courthouse door shut in their faces with a decision shielding foreign corporations from responsibility for human rights abuses in foreign countries, at least in U.S. courts.” And in an editorial for the New York Times, Lincoln Caplan makes the argument that, “[i]n a world where multinational corporations are primary actors, the need for a way to hold them accountable for extreme abuses is more urgent than ever. . . . Providing a forum for victims seeking justice against corporate bad actors is appropriate to America’s history and role in the international community.”

The Court’s decision to grant cert. in Fisher, in which the Justices will take up the constitutionality of the undergraduate admissions policies used by the University of Texas, continues to draw coverage and commentary. In the Washington Post, Catherine Ho profiles the “duo behind the case,” Bert Rein, co-founding partner of Wiley Rein, and Edward Blum, founder of the Project for Fair Representation, a legal defense foundation that opposes race preferences in education, voting, contracting, and employment. Rick Hasen responds to the story at his Election Law Blog. Also in the Washington Post, the paper’s editorial board argues that if the Court finds fault with the university’s approach, it should opt for a narrow ruling, rather than using “Ms. Fisher’s case to erode or reverse the modest affirmative action efforts allowed by law.” And in commentary for the Chronicle of Higher Education, Kevin Carey addresses what he believes will be the Court’s ruling in the case: a decision that creates “a world where colleges are free to offer preferences to legacies—the last vestige of inheritable aristocratic privilege in modern society—and the children of generous donors, but not to members of underrepresented racial and ethnic groups.”

Last Wednesday, the Court issued its ruling in Kurns, holding that the plaintiff’s state-law claims against the manufacturers of locomotive products containing the asbestos that caused her husband’s death were preempted by federal law. Fox News and Steven Schwinn at Constitutional Law Prof Blog have coverage.


  • At the Washington Post, Robert Barnes reports on a recent study (also discussed in Joshua’s round-up on Friday) highlighting the ways in which the composition of current Court differs from those before it. The study’s author concludes that, among other differences, the Justices on the Roberts Court have spent more pre-appointment time in legal academia, appellate judging, and Washington, D.C. than any previous Court.
  • UPI’s Michael Kirkland summarizes the issues underlying Arizona v. United Statesthe challenge to Arizona’s S.B. 1070 – as well as the case’s prior history and possible political consequences. The Court is set to hear oral arguments on April 25.
  • Joan Biskupic of Reuters discusses the unusual backstory behind the dismissal of Magner v. Gallagher, a fair-housing case that the Court was scheduled to hear last week.  [Disclosure:  Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, represents the respondents in the case.]
  • At the Election Law Blog, Rick Hasen highlights two amicus briefs urging the Court to grant cert. in a case involving former Alabama Governor Don Siegelman.
  • At the Daily Caller, Matt Lewis interviews Karen Harned, the executive director of the National Federation of Independent Business – one of the lead plaintiffs in the challenge to the Affordable Care Act – about the broader consequences of a decision upholding the individual mandate.
  • The Denver Post’s Electa Draper reports on remarks made by Justice Antonin Scalia this weekend at the Living the Catholic Faith Conference, where he told the crowd to have “the courage to have your wisdom regarded as stupidity” by others.
  • Writing for the Huffington Post, Douglas McSwain contends that some of the Court’s most historic decisions, such as Marbury v. Madison and Dred Scott, should counsel the Justices to take the “out” provided by the Anti-Injunction Act in the challenge to the Affordable Care Act.



Recommended Citation: Marissa Miller, Monday round-up, SCOTUSblog (Mar. 5, 2012, 9:55 AM),