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Thursday round-up

Yesterday the Court heard the final two oral arguments scheduled for this Term. In University of Texas Southwestern Medical Center v. Nassar, the Court is considering what standard of proof should apply to retaliation claims brought under Title VII of the Civil Rights Act of 1964. Coverage of the argument comes from Jesse J. Holland of The Associated Press. In Metrish v. Lancaster, the Court is considering whether Michigan’s abolition of the diminished capacity defense in criminal trials violated the Constitution. Lyle reports on the argument for this blog, with further coverage coming from Kent Scheidegger of the Crime and Consequences blog.

Other coverage focuses on last week’s decision in Kiobel v. Royal Dutch Petroleum, in which the Court held that the Alien Tort Statute did not authorize a suit by Nigerian nationals against foreign corporations for their conduct abroad. Writing for Slate, Eric Posner praises the decision for “[getting] rid of a popular but unworkable idea that U.S. courts can be used to police behavior around the world,” while Michael Dorf argues in his Verdict column for Justia that “despite condemnation of the Kiobel decision from those who are sympathetic to human rights lawsuits . . . the ruling appears to leave open at least three potential avenues for ATS litigation.” In a follow-up post at Dorf on Law, he also argues that “Kiobel may not prove so ruinous for human rights litigation in the U.S. courts” for another reason – it did not “cut back on the power of U.S. courts to recognize international law as federal common law” under Article III.

At Appellate Daily, Michelle Olsen discusses a circuit split involving unlicensed casket sellers, after the Fifth Circuit recently struck down a Louisiana regulation allowing only licensed funeral homes to sell caskets. Damon W. Root of Reason notes that the dispute might be “the Court’s next big economic liberty case.”


  • NPR’s It’s All Politics reports on The Oyez Project, which has recently finished digitizing all of the Court’s archived audio recordings of oral argument, dating back to 1955.
  • In a podcast he recorded for The Federalist Society, Kent Scheidegger of Crime and Consequences discusses last week’s oral argument 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.  [Disclosure:  Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as counsel to the petitioner in Salinas.]
  • In the latest edition of The Boston Review, Pam Karlan criticizes Justice Scalia’s approach to the Second Amendment.
  • César Cuauhtémoc García Hernández of the Crimmigration blog discusses Tuesday’s decision in Moncrieffe v. Holder, in which the Court held that if a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, it is not an aggravated felony under the Immigration and Nationality Act. [Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, represents the petitioner in this case.]
  • Daniel Fisher of Forbes reports on one legal scholar’s proposed resolution of Association for Molecular Pathology v. Myriad Genetics, Inc., in which the Court is considering the patentability of human genes.
  • Senior U.S. District Judge Richard G. Kopf discusses the “frequent irrelevancy of the Supreme Court” at his blog, Hercules and the Umpire.

Recommended Citation: Cormac Early, Thursday round-up, SCOTUSblog (Apr. 25, 2013, 9:06 AM),