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Tuesday round-up

Yesterday the Justices returned to the bench for the second week of the November sitting.  In Comcast v. Behrend, the Court considered whether a district court may certify a class without resolving whether the plaintiff class has introduced admissible evidence to show that the case could yield an award of damages on a class-wide basis. [Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the counsel to the respondents in this case.] In Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, the Court considered whether the plaintiff class needed to introduce evidence of material misstatements inflating the defendant’s stock price at the class certification stage to proceed. Greg Stohr and Margaret Cronin Fisk of Bloomberg, Adam Liptak of The New York Times, Jonathan Stempel of Reuters, and Mark Sherman of the Associated Press all have coverage. Kali Borkoski of this blog provides links to transcripts of both arguments.

Yesterday the Court also issued orders from its November 2 Conference.  It did not grant any new cases, but it did issue a summary ruling in Lefemine v. Wideman, holding that anti-abortion protesters who did not receive money damages but did obtain a permanent injunction that required government officials to change their behavior in a way that benefitted the protesters can be considered a “prevailing party” for purposes of receiving attorney’s fees under a federal fee-shifting statute.  Lyle Denniston covered the decision for this blog; other coverage comes from Mark Sherman of the Associated Press, Barbara Leonard of Courthouse News, Debra Cassens Weiss of the ABA Journal, David Savage of the Los Angeles Times, and Jonathan Stempel of Reuters.

The Court hears argument in two cases today. In Evans v. Michigan, the Justices will consider whether the Double Jeopardy Clause bars retrial of a defendant who wins a directed verdict that was based on the prosecution’s failure to prove what the judge erroneously held to be an element of the offense. In Smith v. United States, the Justices will consider which party bears the burden of proof that an alleged conspirator’s withdrawal from a conspiracy occurred outside of the limitations period, thereby barring prosecution. For this blog, Steve Vladeck previews Evans, while Gregory Massing previews Smith.

Finally, Election Day brings a raft of Court-related coverage and commentary. Ariane de Vogue of ABC News reports on the effect that the presidential election could have on the make-up of the Court, while at the Huffington Post Neil Siegel argues that a President Romney may appoint Justices willing to overturn Roe v. Wade and Planned Parenthood v. Casey – a theme echoed by Jeremy Leaming at ACSblog.


  • At this blog, Richard Lempert, William Kidder, and Felice Levin respond to a recent SCOTUSblog interview with Richard Sander and Stuart Taylor about their new book, Mismatch.
  • Douglas A. Berman of Sentencing Law and Policy links to local coverage of Pennsylvania’s response to the Court’s recent decision in Miller v. Alabama, holding that mandatory life sentences without the possibility of parole for juvenile offenders are unconstitutional.
  • Enrique Rangel of the Amarillo (Tex.) Globe-News reports on plans by Texas officials to file a cert. petition challenging the state’s Open Meetings Act.
  • Writing for the Boston Review, Pamela Karlan contends that last Term’s major decisions evince a Court with “an unusual level of district in and disrespect for the other branches of government.”
  • In the Case Western Reserve Law Review, Clay Calvert and Justin B. Hayes discuss the concept of judicial deference as it has affected First Amendment speech rights under the Roberts Court (audio podcast).

Recommended Citation: Kiran Bhat, Tuesday round-up, SCOTUSblog (Nov. 6, 2012, 9:29 AM),