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Tuesday round-up

Yesterday, the court issued a unanimous opinion in Shaw v. United States, a bank-fraud case, rejecting Lawrence Shaw’s argument that he could not be found liable under the federal bank-fraud statute if he only intended to defraud a third party, not the bank itself, and remanding for consideration of questions about the jury instructions. Amy Howe analyzes the decision for this blog. Additional coverage comes from Daniel Fisher in Forbes, who reports that the justices held that “the federal bank-fraud statute, which outlaws any ‘scheme to defraud a financial institution,’ also outlaws schemes to defraud a customer by stealing the money he has on deposit at the bank,” and Jaclyn Belczyk in Jurist.

The court also issued additional orders yesterday from its conference last Friday; the order list contained no additional grants, but it did include some notable denials, including in four death-penalty cases that the justices had considered at multiple previous conferences. Amy Howe covers the orders for this blog. In the Associated Press, Jimmy Golen reports on high-profile denials in two class-action cases involving challenges to a settlement between the NFL and former professional football players who suffered brain injuries linked to repeated concussions, noting that the “deal avoids the need for a trial and means the NFL may never have to disclose what it knew and when about the risks and treatment of repeated concussions.” At Jurist, William Theisen also discusses the NFL settlement cases, observing that the “settlement caps a rocky period for the NFL.”

The court’s death-penalty cases, including yesterday’s denials of review and recent dispositions of applications for stays of execution, have attracted attention. In The New York Times, Adam Liptak notes that the justices seem to be adhering only inconsistently to a prior practice of casting a “courtesy fifth” vote to grant stays of execution to avoid death-penalty appeals from becoming moot, “illuminating a lethal gap in the Supreme Court’s internal practices,” whereby it “takes four votes to put a case on the court’s docket, but it takes five to stop an execution.” At The Huffington Post, Cristian Farias also discusses the inconsistent application of the “courtesy fifth,” concluding that as “for the mystery of why one inmate received a courtesy reprieve and another one didn’t, we’ll likely never know.” A broader look at the court’s recent death-penalty cases comes from Richard Wolf at USA Today, who observes that 40 “years after the high court reinstated the death penalty in another Georgia case, the justices are increasingly divided over when it is applied, how it is administered and whether it serves any purpose.”


  • In The George Washington Law Review’s On the Docket blog, Randall Eliason looks at last week’s decision in Salman v. United States, an insider-trading case, observing that “Salman should give a boost to both criminal and civil insider trading investigations,” and that tippee “liability based on gifts of information is unlikely to be limited to close friends and family.”
  • The World and Everything in It (podcast), features discussions of the oral arguments in Venezuela v. Helmerich & Payne International, a case involving pleading standards for expropriation cases against foreign governments filed in U.S. courts, and SCA Hygiene Products v. First Quality Baby Products, which asks whether the common-law defense of laches applies to a patent infringement suit for damages brought within the statutory limitations period.
  • At Empirical SCOTUS, Adam Feldman assesses 11 candidates for solicitor general, comparing them in various areas, including their legal and government experience, their ties to the presidential transition team, “and other practice based characteristics that might make them attractive to the Trump administration.”

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Dec. 13, 2016, 7:04 AM),