At its April 26, 2013 Conference, the Court will consider petitions seeking review of issues such as antitrust liability for conditional-rebate agreements, equitable mootness in bankruptcy appeals, and the scope of a custodial suspect’s invocation of Miranda rights.

This edition of “Petitions to watch” features petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues.  Our policy is to include and disclose all cases in which Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, represents either a party or an amicus in the case, with the exception of the rare cases in which Goldstein & Russell represents the respondent(s) but does not appear on the briefs in the case.


Issue(s): Whether the court of appeals erred in holding that conditional-rebate agreements can give rise to antitrust liability in the absence of any showing of below-cost pricing.



Issue(s): Whether 8 U.S.C. §1324, which prohibits concealing or harboring unlawfully present aliens, encouraging or inducing them to come into or reside in the United States, or transporting them in furtherance of their unlawful presence, impliedly and facially preempts state laws, such as ALA. CODE §31-13-13, prohibiting a state’s residents from: (a) concealing or harboring aliens who are present in the United States in violation of federal law; (b) encouraging or inducing aliens to enter into or reside in the state, when their entry or residence would violate federal law; or (c) transporting unlawfully present aliens within the state in furtherance of their unlawful presence.



Issue(s): Whether the court of appeals correctly dismissed these bankruptcy appeals as “equitably moot” despite acknowledging the availability of effective relief and, in conflict with other circuits, by applying a presumption of mootness and reviewing the district court’s mootness determination only for abuse of discretion.



Issue(s): Whether, when a custodial suspect upon Miranda advice literally states that he chooses to remain silent, “clearly established Federal law” both (1) prohibits a state court from considering objective circumstances suggesting that the suspect did not intend to invoke his right; and (2) precludes the police from briefly asking the suspect to confirm his intent, so long as they commence any interrogation only after the suspect then explicitly agrees to talk.



Issue(s): (1) Whether the Establishment Clause prohibits the government from conducting public functions such as high school graduation exercises in a church building, where the function has no religious content and the government selected the venue for reasons of secular convenience; (2) whether the government “coerces” religious activity in violation of Lee v. Weisman and Santa Fe Independent School District v. Doe where there is no pressure to engage in a religious practice or activity, but merely exposure to religious symbols; and (3) whether the government “endorses” religion when it engages in a religion-neutral action that incidentally exposes citizens to a private religious message.



Issue(s): Whether the Ninth Circuit exceeded its authority under the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d)(1), by granting habeas relief on the ground that the Nevada Supreme Court unreasonably applied “clearly established Federal law, as determined by” this Court when it held that respondent’s right to present a defense was not violated by the exclusion of extrinsic evidence through which he sought to impeach a prosecution witness on a collateral matter.



Issue(s): Whether the Ninth Circuit conflicted with the “reasonable likelihood” materiality standards of Napue v. Illinois and Brady v. Maryland by substituting a standard based on “any conceivable, speculative possibility” of a different result.



Posted in Everything Else

Recommended Citation: Mary Pat Dwyer, Petitions to watch | Conference of April 26, 2013, SCOTUSblog (Apr. 21, 2013, 7:28 AM),