At its Conference on January 17, 2014, the Court will consider petitions seeking review of issues such as a governor’s reduction of a state’s unionized workforce, a rail carrier’s challenge to state tax exemptions for its competitors, and a patent infringement claim against a software manufacturer.

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 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): (1) Whether a computer software manufacturer may be liable for direct infringement of a patent drawn to computer instructions where the software, as shipped, does not contain sufficient instructions to perform the claimed operations; (2) whether flaws in an expert’s methodology may be raised as part of a challenge to the sufficiency of the evidence or only to the testimony’s admissibility; and (3) whether a patent infringement action should be stayed where the Patent Trial and Appeal Board has declared invalid all patent claims at issue in the infringement action and the defendant, which sought such review at the first opportunity, might otherwise be compelled to pay an enormous damages judgment and be subjected to a permanent injunction on the basis of the invalid claims.



Issue(s): Whether the Commerce Clause of the United States Constitution allows States to tax goods distributed by out-of-state wholesalers more heavily than goods distributed by in-state wholesalers.



Issue(s): (1) Whether a state “discriminates against a rail carrier” in violation of 49 U.S.C. § 11501(b)(4) when the state generally requires commercial and industrial businesses, including rail carriers, to pay a sales-and-use tax but grants exemptions from the tax to the railroads’ competitors; and (2) whether, in resolving a claim of unlawful tax discrimination under 49 U.S.C. § 11501(b)(4), a court should consider other aspects of the state's tax scheme rather than focusing solely on the challenged tax provision. CVSG: 05/27/2014.



Issue(s): (1) Whether a governor’s subjective motives for exercising a state’s inherent power and contractual right to reduce the size of its unionized workforce are legally relevant when a court is asked to determine the constitutionality of that legislative act; and (2) whether the Second Circuit erred in requiring strict scrutiny of a governor’s decision to reduce the size of a state’s unionized workforce by falsely analogizing that decision to firing state employees based on their political party affiliation.



Issue(s): Whether a federal court conducting habeas corpus review may reject a state supreme court's summary merits adjudication of a claim as objectively unreasonable under 28 U.S.C. § 2254(d), not by considering whether a fairminded jurist might have denied relief based on the record submitted to the state supreme court, but instead by imputing to the state supreme court asserted flaws in the reasoning expressed in an earlier decision on the claim made by a lower court based on different evidence.



Issue(s): Whether the Carmack Amendment, 49 U.S.C. §§ 11706, 14706, imposes a heightened “specificity” requirement on the parties to a shipping contract, precluding enforcement of an agreed-upon limitation on the carrier’s liability set forth in an incorporated tariff if the contract itself does not explicitly describe the limitation or the tariff.



Issue(s): (1) Whether the of Federal Rule of Civil Procedure 23(b)(3) predominance requirement can be satisfied when the court has not found that the aggregate of common liability issues predominates over the aggregate of individualized issues at trial and when neither injury nor damages can be proven on a classwide basis; and (2) whether a class may be certified when most members have never experienced the alleged defect and both fact of injury and damages would have to be litigated on a member-by-member basis.



Issue(s): (1) Whether the predominance requirement of Federal Rule of Civil Procedure 23(b)(3) is satisfied by the purported “efficiency” of a class trial on one abstract issue, without considering the host of individual issues that would need to be tried to resolve liability and damages and without determining whether the aggregate of common issues predominates over the aggregate of individual issues; and (2) whether a product liability class may be certified where it is undisputed that most members did not experience the alleged defect or harm.



Issue(s): Whether the Fourth Amendment permits the police, without obtaining a warrant, to review the call log of a cellphone found on a person who has been lawfully arrested.



Issue(s): (1) Whether after Comcast Corp. v. Behrend the absence of a showing that injury can be proved on a classwide basis precludes class certification under Federal Rule of Civil Procedure 23(b)(3); and (2) whether at the class certification stage of litigation a district court must analyze the admissibility of expert testimony under the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc.


Disclosure: Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel to the petitioner in this case at the certiorari stage through the Stanford Law School Supreme Court Litigation Clinic, but it is not participating in the case at the merits stage.

Issue(s): Whether evidence admitted at petitioner's trial was obtained in a search of petitioner's cell phone that violated petitioner's Fourth Amendment rights.



Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, serves as counsel to the petitioner in this case.

Issue(s): (1) Whether the government is categorically free under the First Amendment to retaliate against a public employee for truthful sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary job responsibilities; and (2) whether qualified immunity precludes a claim for damages in such an action.



Issue(s): Whether 8 U.S.C. § 1252(a)(2)(C), which limits Article III jurisdiction as to asylum and withholding of removal, restricts Article III jurisdiction in deferral of removal cases in the absence of statutory text to that effect.



Issue(s): Whether, under the Antiterrorism and Effective Death Penalty Act (AEDPA), state court adjudications are per se unreasonable and not entitled to deference under 28 U.S.C. § 2254(d)(2) merely because the state court does not conduct an evidentiary hearing.

Posted in Everything Else

Recommended Citation: Mary Pat Dwyer, Petitions to watch | Conference of January 17, SCOTUSblog (Jan. 13, 2014, 10:18 PM),