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Friday round-up

Thursday’s coverage of the Court focused primarily on this week’s oral arguments.

The Economist addresses the issues at stake in Kiobel v. Royal Dutch Petroleum, in which the Court is considering whether corporations may be held liable under the Alien Tort Statute for human rights abuses committed outside the United States. The Huffington Post and The Wall Street Journal (subscription required) have additional commentary.

JURIST has coverage of Wednesday’s oral arguments in Johnson v. Williams, in which the Court considered whether a state court’s denial of habeas relief that fails to reference a federal-law basis for the habeas petitioner’s claim constitutes an adjudication “on the merits,” and Arkansas Fish & Game Commission v. United States, in which the Court considered whether and when government actions that impose recurrent flooding on private property constitute a taking. Additional coverage of the latter oral argument comes from Damon W. Root at Reason’s Hit & Run Blog, Lawrence Hurley at E&E News, Richard Samp at the Washington Legal Foundation, and Marcia Coyle at the National Law Journal (subscription required).

Other coverage of the Court looks ahead to next Wednesday’s oral argument in Fisher v. University of Texas at Austin, in which the Court will consider whether the university’s use of race in undergraduate admissions violates the Constitution. Commentary comes from Thomas Espenshade at The New York Times, Al Sharpton at the Huffington Post, and Gerald Walpin at The Wall Street Journal (subscription required). Joe Palazzolo of the Wall Street Journal Law Blog summarizes the amicus brief filed in the case by the American Bar Association, which discusses “the benefits of diversity in legal education” and urges the Court to uphold the University’s use of race as constitutional. And at Business Insider, Erin Fuchs reports on the prediction by veteran advocate Carter Phillips that the Court will not permit the university “to automatically accept the top 10 percent of students from every high school and consider race in admissions.”

Yesterday the Federal Trade Commission filed a petition for certiorari asking the Court to weigh in on the standard that should be used to review the legality of “reverse payments” made by the manufacturers of brand-name drugs to generic manufacturers in exchange for an agreement by the generic manufacturers to stay out of the market. Reuters and The Washington Post have coverage of the filing. At Patent Docs, Kevin Noonan analyzes the amicus brief filed by the Generic Pharmaceutical Association in Merck & Co. v. Louisiana Wholesale Drug Co., a case presenting the same question. [Lyle Denniston covered the filing of the Merck petition for this blog last month. Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as co-counsel to the respondents in the Merck case.]


  • Coverage and discussion of the Court’s decision in NFIB v. Sebelius, in which the Court upheld the individual mandate provision of the Affordable Care Act, continue at the Thomson Reuters News & Insight Blog, where Susan DiMickele and Tara Aschenbrand examine the opinion’s implications for employers.
  • In a legal scholarship highlight for this blog, Nathaniel Persily discusses his recent research on the effect of the Court’s health care decision on public approval of both the Court and the Affordable Care Act.
  • The Wall Street Journal’s MarketWatch examines the possible implications of Kirtsaeng v. John Wiley & Sons, Inc., in which the Court will consider whether the exhaustion doctrine in copyright law prohibits the importation of authorized copies manufactured abroad.
  • Karin Klein of the Los Angeles Times comments on how the Court might dispose of the pending petition for certiorari in the Proposition 8 case.
  • E&E News reports on Justice Stevens’s speech earlier this week at the Chicago-Kent College of Law, in which he criticized the approach taken by Justice Scalia in the Court’s 2010 decision in Stop the Beach Renourishment v. Florida Department of Environmental Protection.
  • At The Washington Post’s Crime Scene Blog, Del Quentin Wilber interviews Jeffrey Toobin about his new book on the Court.
  • For Forbes, Richard Levick previews Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, scheduled for oral argument during the Court’s November sitting, in which the Court will consider what plaintiffs in misrepresentation cases under SEC Rule 10b-5 must prove at the class certification stage when operating under a fraud-on-the-market theory.
  • At the Thomson Reuters News & Insight Blog, Joseph Schuman summarizes John Jenkins’s new biography of Chief Justice Rehnquist.

Recommended Citation: Rachel Sachs, Friday round-up, SCOTUSblog (Oct. 5, 2012, 10:23 AM),