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Friday round-up

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Thursday’s coverage of the Court largely focused on the opinions it released earlier this week.

On Wednesday, the Court released its opinion in Kiobel v. Royal Dutch Petroleum, in which it held that the Alien Tort Statute did not authorize a suit by Nigerian nationals against foreign corporations for their conduct abroad.  Additional coverage of the opinion comes from UPI, The Economist, and Michael Bobelian at Forbes.  This blog has run commentary on the opinion from supporters of both sides, including posts yesterday by Anton MetlitskyKristin Linsley Myles and James RuttenOona Hathaway, and Donald Childress.  Writing at PrawfsBlawg, Howard Wasserman considers the opinion’s discussion of issues of jurisdiction versus issues of substantive law, while Andy Spalding predicts that, after Kiobel, “the next generation of ATS litigation . . . will likely focus to a large extent on the territorial nexus question.”  Also writing at Forbes, Rich Samp argues that while the opinion “is likely to make it far more difficult for human rights activists to sue U.S. corporations based on the corporation’s overseas activities,” the opinion left “sufficient wiggle room that we can expect to see multinational corporations regularly being sued for their overseas activities for the foreseeable future.” [Disclosure: Goldstein & Russell, P.C. represents Achmed et al. and the Center for Justice and Accountability as amici curiae in support of the petitioners.]

On Wednesday, the Court also released its opinion in Genesis HealthCare Corp. v. Symczyk, in which it held that the respondent’s suit was appropriately dismissed for lack of subject-matter jurisdiction when she had rejected petitioners’ settlement offer, as she had no personal interest in representing putative claimants.  At The Blog of the Century Foundation, Moshe Marvit calls Symczyk “[t]he most important case you haven’t heard of. Maybe.”  Similarly, Steven Schwinn at Constitutional Law Prof Blog describes the case as potentially causing a “significant blow to the [Fair Labor Standards Act’s] provision that allows an employee to sue on behalf of all others ‘similarly situated’” – unless Justice Kagan’s “dissent is right [and] this is a one-off that should never happen again.”

Tuesday’s opinion in Missouri v. McNeely, in which the Court held that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not inevitably constitute an exigency sufficient to justify conducting a blood test without a warrant, similarly continues to attract attention.  Coverage of the opinion comes from David Savage at the Los Angeles Times and Brandon Gatto at JURIST.

The Court also heard oral argument this week in several cases.  At Patent Docs, Kevin Noonan comments on Monday’s oral argument in Association for Molecular Pathology v. Myriad Genetics, in which it is considering the patent-eligibility of human genes.  Noonan predicts that the government’s “‘compromise’ position” regarding the patent-eligibility of cDNA but not genomic DNA has the best chance of prevailing in the case.

On Monday, the Court also heard argument in United States v. Davila, in which it is considering whether any degree of judicial participation in plea negotiations, in violation of Federal Rule of Criminal Procedure 11(c)(1), automatically requires vacatur of a defendant’s guilty plea, irrespective of whether the error was prejudicial.  Rory Little reports on the argument in what he refers to as “[t]his little-noticed case” for this blog.

Also for this blog, Miriam Seifter reports on Tuesday’s oral arguments in American Trucking Associations, Inc. v. City of Los Angeles, in which the Court is considering whether the Federal Aviation Administration Authorization Act contains an unexpressed “market participant” exception permitting a municipal government to take action that would otherwise conflict with the Act’s express preemption clause, at least under specified circumstances.  Michael Piraino, writing at the Huffington Post, weighs in on Tuesday’s other oral argument, in Adoptive Couple v. Baby Girl, in which the Court is considering whether a non-custodial parent of a child can invoke the Indian Child Welfare Act of 1978 to block an adoption by a non-Indian parent.

Julia Zebley at JURIST reports on Wednesday’s oral arguments in Salinas v. Texas, in which the Court is considering whether or when the Fifth Amendment’s Self-Incrimination Clause protects a defendant’s refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights, and United States v. Kebodeaux, in which the Court is considering whether Congress possesses the Article I authority to provide for criminal penalties for the failure to register as a sex offender under the federal Sex Offender Registration and Notification Act, as applied to a person who was convicted of a sex offense under federal law but completed his criminal sentence before the enactment of the registration provision.  Steven Schwinn reports on the Kebodeaux oral argument for this blog, emphasizing the ways in which the Justices seemed to be concerned about limits on congressional authority. [Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the co-counsel to the petitioner in Salinas.]


  • Writing at the Brennan Center for Justice, Sidney Rosdeitcher and Katriana Roh preview next week’s oral arguments in Agency for International Development v. Alliance for Open Society International, in which the Court will consider whether a law requiring an organization to maintain a policy explicitly opposing prostitution in order to receive federal funding to provide HIV and AIDS programs overseas violates the First Amendment.
  • At the Thomson Reuters News & Insight blog, Elizabeth Dilts reports on the Court’s denial of certiorari on Monday in GlaxoSmithKline v. Humana Medical Plans, which had asked the Court to review whether the Medicare Secondary Payer Act, 42 U.S.C. § 1395y(b)(2), establishes a cause of action for private insurers operating Medicare Advantage plans to sue tortfeasors for double damages.  [Disclosure:  Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the counsel to the respondent in the case.]
  • Justice Kagan has been named to TIME’s 2013 list of its one hundred most influential people in the world.  Justice O’Connor writes Justice Kagan’s entry in the issue, emphasizing her “incisive legal think[ing]” and “excellent communicat[ion.]”
  • At the New York Review of Books, David Cole has an essay remembering the path-breaking reporting and writing about the Court by Anthony Lewis, who passed away in late March.
  • Both Geoffrey Stone at the Huffington Post and Jeremy Leaming at ACSblog comment on a speech given by Justice Scalia earlier this week.   Conor and Cormac have already rounded up earlier coverage of the event.

Recommended Citation: Rachel Sachs, Friday round-up, SCOTUSblog (Apr. 19, 2013, 9:54 AM),