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Tuesday round-up

With the Court in between oral argument sittings, yesterday’s coverage looks ahead to cases the Court will review in the coming weeks.

On March 18, the Court will hear Arizona v. Inter Tribal Council of Arizona, Inc., in which it will consider whether a state law requiring voters to show proof of U.S. citizenship before they can register to vote is preempted by a federal law providing for uniform, nationwide voter registration requirements in federal elections. At the Constitutional Accountability Center’s blog, David H. Gans describes the issue in the case as “whether, under the Constitution, Congress can establish a nationwide system of voter registration for federal elections or whether states retain the authority to add [their] own restrictions.” At the Huffington Post, Doug Kendall discusses the case in light of the Court’s consideration of Shelby County v. Holder, involving a challenge to Section 5 of the Voting Rights Act, and observes that “while [the two cases] involve different statutes and different legal challenges, they raise the same core constitutional issue: the role of the federal government vis-à-vis the states in terms of voting rights in America.” Mary Shinn at Cronkite News also reports on the case.

In his “SCOTUS for law students” feature for this blog, Stephen Wermiel looks at the implied preemption challenge at issue in Mutual Pharmaceutical Co. v. Bartlett, scheduled for oral argument on March 19, in which the Court will consider whether federal law preempts a state-law design defect claim against a generic drug manufacturer. He notes the Court’s recent preoccupation with preemption challenges and observes that “[f]or many Justices, preemption raises fundamental questions about the balance between state and federal power . . . [and] often splits the Court on ideological grounds similar to other decisions involving federalism.” The editorial board of The New York Times weighs in on the case as well, arguing that generic manufacturers should be liable to consumers and that “[i]f the Supreme Court shields the makers of generic drugs from consumer suits, Congress ought to amend the laws.”

Lisa Keen of the Keen News Service previews the Article III standing issues presented in the same-sex marriage cases scheduled for oral arguments later this month, and she outlines the scenarios that could result if the Court decides that standing is lacking in either Hollingsworth v. Perry, the case involving a challenge to California’s Proposition 8 banning gay marriage, or United States v. Windsor, the case involving a challenge to the federal Defense of Marriage Act.

At Politico, Brett Norman looks ahead to Federal Trade Commission v. Actavis, scheduled for argument on March 25.  In that case, the Court will consider an antitrust challenge to reverse-payment agreements between name-brand and generic manufacturers of prescription drugs. Under such agreements, the name-brand producer pays the generic producer to prevent it from challenging the validity of the name-brand producer’s patent. [Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, also represented Louisiana Wholesale Drug Company et al. as an amicus in support of the petitioner in this case.]

In the Buffalo Law Journal, Jeremy Oczek summarizes the legal issues in, and industries affected by, three intellectual property law cases pending before the Court this Term: (1) Association for Molecular Pathology v. Myraid Genetics, which is scheduled for oral arguments on April 15 and in which the Court will consider whether human genes are patentable; (2) Bowman v. Monsanto, argued in February, which involves the application of the doctrine of patent exhaustion to self-replicating technologies; and (3) Kirtsaeng v. John Wiley & Sons, Inc., which was argued last October and presents the question of whether the “first sale doctrine” under the Copyright Act applies to copyrighted works made and legally purchased outside the United States and then imported into the United States.


  • In a legal scholarship highlight for this blog, Jeffrey Fisher discusses his forthcoming article on Supreme Court clinics at law schools, in which he focuses on the clinics’ public interest mission and “the ethical, practical and normative issues that operating a Supreme Court pro bono practice raises.”
  • At Liberty Law Blog, Ilya Somin reviews Einer Elhauge’s book Obamacare on Trial, which analyzes the Court’s reasoning and the arguments raised in NFIB v. Sebelius, the case in which the Court narrowly upheld the Affordable Care Act. He concludes that, although the book is a “thought-provoking contribution to the debate over the individual mandate,” it will “likely not be persuasive to those not already inclined to agree with Elhauge’s conclusions.”

Recommended Citation: Sarah Erickson-Muschko, Tuesday round-up, SCOTUSblog (Mar. 12, 2013, 9:47 AM),