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Wednesday round-up

Yesterday the Court issued its opinion in Arkansas Game & Fish Commission v. United States. In a unanimous decision by Justice Ginsburg, the Court held that recurrent flooding which is induced by the government and temporary in duration is not automatically exempt from liability under the Takings Clause.  Lyle covered the opinion for this blog; other coverage comes from Greg Stohr of Bloomberg News, Adam Liptak of The New York Times, Robert Barnes of The Washington Post, Debra Cassens Weiss of the ABA Journal, Richard Wolf of USA Today, Michael Doyle of McClatchy Newspapers, Lawrence Hurley at Greenwire, Steven D. Schwinn at Constitutional Law Prof Blog, Carrie Severino of the National Review Online, Terry Baynes and Jonathan Stempel of Reuters, and the Associated Press.  In commentary on the opinion at the Volokh Conspiracy, Ilya Somin lamented that, “unfortunately, the Court gives very little guidance on how to determine whether a given case of flooding is a taking,” while at Cato@Liberty Roger Pilon suggested that the decision is “not an unqualified win for property owners.”

Yesterday the Court also heard oral arguments in two cases.  In Sebelius v. Auburn Regional Medical Center, the Court is considering whether the statutory time limit for appealing a Medicare reimbursement is subject to equitable tolling.  Lyle reported on the oral argument for this blog here.  In Los Angeles County Flood Control District v. Natural Resources Defense Council, the Court is considering whether, when water flows from one portion of a U.S. navigable river, through an engineered improvement constructed for flood and stormwater control and into a lower portion of the same river, there can be a “discharge” from an “outfall” under the Clean Water Act.  Coverage of the argument comes from Lawrence Hurley at Greenwire and the Associated Press, both of whom concluded that the Court appeared to be leaning toward a ruling in favor of the Southern California flood control district.  Kali has posted links to transcripts yesterday’s oral arguments.

Yesterday’s coverage of the Court also included John Elwood’s report for this blog on Monday’s oral arguments in Decker v. Northwest Environmental Defense Center (consolidated with Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center); Elwood notes that the Court spent little time at argument discussing any of the questions it granted cert. to decide, “and instead devoted nearly the entire hour to discussing a new rule EPA promulgated unexpectedly on Friday – just days before the argument.”  Robert Barnes of The Washington Post and Lawrence Hurley of Greenwire also have coverage of Monday’s oral argument in Decker.  And coverage of last Wednesday’s oral argument in Henderson v. United States continues with a post from Rory Little at this blog.

Today the Court will hear oral arguments in Chafin v. Chafin, in which the Court will consider whether an appeal of a district court’s order in a case brought under the Hague Convention on the Civil Aspects of International Child Abduction becomes moot after the child returns to her country of habitual residence.  Amy Howe previewed the case for this blog.


  • Joan Biskupic of Reuters has the story of Edward Blum, “a little-known 60-year-old former stockbroker . . . [who] sought out the plaintiffs in [Fisher v. University of Texas at Austin and Shelby County v. Holder], persuaded them to file suit, matched them with lawyers, and secured funding to appeal the cases all the way to the high court.
  • At Crime and Consequences, Kent Scheidegger reports that yesterday the Court denied a stay of execution to George Ochoa, who was convicted of murdering two people in Oklahoma City in 1993.
  • At the Volokh Conspiracy, Randy Barnett discusses Justice Scalia’s recent appearance at Georgetown University Law Center for the inaugural event of the Georgetown Center for the Constitution.
  • At this blog’s Relist (and Hold) Watch feature, John Elwood reviews Monday’s relisted and held cases.

Recommended Citation: Conor McEvily, Wednesday round-up, SCOTUSblog (Dec. 5, 2012, 10:47 AM),