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Friday round-up

Thursday’s coverage of the Court primarily looked ahead to next week, when the Court will hear oral arguments in the same-sex marriage cases: United States v. Windsor, the challenge to the federal Defense of Marriage Act, and Hollingsworth v. Perry, the challenge to California’s Proposition 8.  Peter Landers of the Wall Street Journal Law Blog and Michael Doyle of McClatchy Newspapers provide an overview of the major issues involved in the cases, while at the Constitutional Law Prof Blog, Allison Reddy summarizes the legal arguments in the amicus brief filed in support of Edith Windsor by the Cato Institute and Constitutional Accountability Center.  Writing in the Wall Street Journal, Michael McConnell argues that the Court lacks jurisdiction to hear the Proposition 8 case, while in The Washington Post, George Will argues that DOMA should be held unconstitutional on federalism grounds.  Ari Shapiro at NPR traces the timeline of gay rights cases, from Bowers to the present.  Mark Tushnet has additional commentary on the Proposition 8 case at Balkinization.  And at The New Yorker, Amy Davidson considers the details of Edith Windsor’s life, suggesting that her biography “isn’t so different from those of the Justices.”

Other coverage focused on the opinions issued by the Court earlier this week.  On Wednesday, the Court held in Decker v. Northwest Environmental Defense Center that the Clean Water Act did not require the defendants to obtain permits before discharging stormwater runoff from logging roads into two Oregon rivers.  Jerry Votava at JURIST and Leland Beck at the Federal Regulations Advisor have coverage of the opinion, while Craig Albert has additional commentary at Dorf on Law.  On Wednesday, the Court also issued its opinion in Wos v. E.M.A., in which it held that the anti-lien provision of the federal Medicaid statute preempts North Carolina’s irrebuttable statutory presumption that one-third of any tort recovery by a Medicaid beneficiary is attributable to medical expenses.  Julia Zebley at JURIST has additional coverage of the opinion.  On Tuesday, the Court ruled in Kirtsaeng v. John Wiley & Sons, Inc. that the “first sale” doctrine applies to copies of a copyrighted work lawfully made abroad, thereby permitting the owner of such copies to import them into the United States and resell them without permission of the copyright holder.  David Post, writing at the Volokh Conspiracy, praises the opinion, arguing that it takes “the correct interpretive stance with respect to construing ambiguities (of which there are many) in the Copyright Act.”


  • JURIST summarized Wednesday’s oral arguments in Horne v. Department of Agriculture, in which the Court is considering whether a party may raise a Fifth Amendment takings claim when ordered by the government to transfer funds, or whether the party must comply with the order and bring a separate action for reimbursement in the Court of Federal Claims, and in Dan’s City Used Cars v. Pelkey, in which the Court is considering whether federal law preempts state statutory, common law negligence, and consumer protection enforcement actions against a tow-motor carrier based on state law regulating the sale and disposal of a towed vehicle.
  • For this blog, Ronald Mann summarized Tuesday’s oral argument in Sebelius v. Cloer, in which the Court is considering whether someone whose petition under the National Vaccine Injury Compensation Program is dismissed as untimely may recover his attorney’s fees and costs from the United States.
  • Steven Schwinn at the Constitutional Law Prof Blog considers the legal issues involved in Mutual Pharmaceutical Co. v. Bartlett, in which the court is considering whether federal law preempts state design-defect claims targeting generic pharmaceutical products.  The Court heard oral argument in Bartlett on Tuesday, and Schwinn considers the relationship between Bartlett and Pliva, Inc. v. Mensing, the Court’s 2011 decision holding that federal law did preempt a state failure-to-warn claim against a generic manufacturer.
  • Writing at ACSblog, Gabriel Chin analyzes Monday’s oral argument in Arizona v. The Inter Tribal Council of Arizona, Inc., in which the Court is considering whether the National Voter Registration Act preempts an Arizona law requiring people to provide proof of their United States citizenship before they can register to vote.
  • For this blog, Lyle looks ahead to next Monday’s oral argument in FTC v. Actavis, Inc., in which the Court will consider the legality of reverse payment agreements. [Disclosure:  Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, filed an amicus brief in support of the petitioner in this case.]
  • Nikole Hannah-Jones writes at ProPublica about plaintiff selection in civil rights cases, focusing on Fisher v. University of Texas at Austin, in which the Court is considering the constitutionality of the University’s use of race in undergraduate admissions decisions.

Recommended Citation: Rachel Sachs, Friday round-up, SCOTUSblog (Mar. 22, 2013, 9:27 AM),