At its Conference on March 6, 2015, the Court will consider petitions seeking review of issues such as a foreign official’s common-law immunity for acts performed on behalf of a foreign state, judicial review of a jurisdictional determination under the Clean Water Act, and a court’s denial of a criminal defendant’s constitutional right to testify.

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.

14-656

Issue(s): (1) Whether the plaintiff bears the burden of proving loss causation under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1109, or whether it can shift the burden on that element to the defendant by carrying its burden on the analytically distinct elements of breach of fiduciary duty and loss to the plan; and (2) whether an ERISA fiduciary with a duty of prudence can be held liable for money damages under Section 1109 even though its ultimate investment decision was objectively prudent. CVSG: 5/26/2015.

14-647

Issue(s): Whether, contrary to this Court’s consistent and longstanding precedent and Congress’s intent, the double-patenting doctrine can be used to invalidate a properly issued patent before its statutory term has expired using a second, later-issuing patent whose term of exclusivity is entirely subsumed within that first patent’s term.

14-625

Issue(s): Whether, where an arbitration agreement does not expressly refer to class arbitration, the determination of whether class or group arbitration is permitted by the agreement is a question of arbitrability, presumptively for the district court to decide (as the Third and Sixth Circuits have now held), or a question of interpretation and procedure for the arbitrator (as the First, Second, Seventh, and Eleventh Circuits, and numerous district courts have concluded).

14-615

Issue(s): Whether a district court judge may recall a jury on discovery of its own error in the receipt or recording of a jury's verdict and, if the jury has remained an undispersed unit within the court's control since discharge, may accept its verdict.

14-555

Issue(s): Whether a trial court's complete denial of a criminal defendant's constitutional right to testify is amenable to harmless-error analysis.

14-493

Issue(s): (1) Whether a jurisdictional determination, that is conclusive as to federal jurisdiction under the Clean Water Act, and binding on all parties, is subject to judicial review under the Administrative Procedure Act; and (2) whether a due process claim against an agency action is subject to the finality requirement of the Administrative Procedure Act.

 

Relists

14-618

Issue(s): (1) Whether the Michigan courts' decision not to extend United States v. Cronic to cover counsel's brief absence from trial was an “extreme malfunction” entitling the petitioner to habeas relief; and (2) whether the Michigan courts reasonably determined that Donald had not shown Strickland v. Washington prejudice flowing from his counsel's brief absence in a multi-defendant case during the taking of evidence that did not inculpate his client.

14-462
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.

Issue(s): Whether the California Court of Appeal erred by holding, in direct conflict with the Ninth Circuit, that a reference to state law in an arbitration agreement governed by the Federal Arbitration Act requires the application of state law preempted by the Federal Arbitration Act.

14-452

Issue(s): Whether the Eighth Amendment requires that a capital-sentencing jury be affirmatively instructed that mitigating circumstances “need not be proven beyond a reasonable doubt,” as the Kansas Supreme Court held in this case, or instead whether the Eighth Amendment is satisfied by instructions that, in context, make clear that each juror must individually assess and weigh any mitigating circumstances.

14-354

Issue(s): (1) Whether a government policy expressly excluding “religious worship services” from a broadly open forum violates the Free Exercise Clause and Establishment Clause; and (2) whether a government policy expressly excluding “religious worship services” from a broadly open forum violates the Free Speech Clause.

14-292

Issue(s): (1) Whether the former Texas special issues for death penalty sentencing do provide – as the Texas Court of Criminal Appeals held – or do not provide – as the Fifth Circuit has held – an appropriate vehicle for the jury to consider and give full effect to mitigating evidence of good character, such that failure to provide a separate question violates the Eighth and Fourteenth Amendments under this Court’s jurisprudence in Penry v. Lynaugh and Penry v. Johnson; (2) whether a conviction aided by the prosecution's failure to produce evidence that contradicted its theory and showed that the evidence it did rely upon and the resulting jury arguments were false violates the Due Process Clauses of the Fifth and Fourteenth Amendments under this Court's Brady v. Maryland jurisprudence; and (3) whether executing a defendant who has already served more than thirty years on death row while exercising his legal rights in a non-abusive manner serves any penological purpose and amounts to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.

14-280

Issue(s): (1) Whether Miller v. Alabama adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison; and (2) whether the Supreme Court has jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to this Court’s decision in Miller v. Alabama.

CVSGs

13-1361

Issue(s): Whether a foreign official’s common-law immunity for acts performed on behalf of a foreign state is abrogated by plaintiffs’ allegations that those official acts violate jus cogens norms of international law. CVSG: 1/30/2015.

 

Posted in Everything Else

Recommended Citation: Maureen Johnston, Petitions to watch | Conference of March 6, SCOTUSblog (Mar. 5, 2015, 9:00 AM), https://www.scotusblog.com/2015/03/petitions-to-watch-conference-of-march-6/