Breaking News

Wednesday round-up

This morning the court will hear oral argument in two cases. The first is County of Los Angeles v. Mendez, a Fourth Amendment case stemming from a police search that resulted in a shooting. Rory Little previewed the case for this blog. At Cornell University Law School’s Legal Information Institute, Laurel Hopkins and Eugene Temchenko also provide a preview.

The second case on the argument docket is Water Splash v. Menon, which involves service of process under the Hague Service Convention. Charlotte Garden had this blog’s preview. Cassandra Desjourdy and Weiru Fang preview the case for Cornell. At Letters Blogatory, Ted Folkman predicts a unanimous ruling for Water Splash, because its reading of the relevant provision “is at least a permissible reading,” and because “it is the reading of all the other parties to the Convention and of the Executive Branch.”

Yesterday the court heard argument in two cases. In Microsoft v. Baker, the justices considered the options available for plaintiffs when a district court determines that a case is not suited for adjudication as a class action. Ronald Mann analyzes the argument for this blog. At Mayer Brown’s Class Defense blog, Archis Parasharami discusses the case, arguing that “an approach to appellate jurisdiction that gives only one side (plaintiffs and their counsel) the ability to secure an immediate appeal at will would unfairly increase the already outsized leverage that plaintiffs have in class-action litigation.”

In Impression Products, Inc. v. Lexmark International, Inc., the court looked at the scope of the patent exhaustion doctrine. Ronald Mann has this blog’s argument analysis. In an op-ed at Bloomberg, Aaron Perzanowski and Jason Schultz argue that unlike “most patent cases, this one directly affects the daily lives of nearly every American,” asserting that “Lexmark is attempting to use patent law to construct something resembling customer loyalty” and that the “Supreme Court should reject that power grab.” In a Wall Street Journal op-ed, Daniel Hamel and Lisa Larrimore Ouellette maintain that the case is essentially “about price discrimination, the practice of charging higher prices to customers who likely can pay more and offering discounts to those who cannot,” and they urge the justices to “consider what their decision might mean for consumers beyond the U.S.—and especially in developing countries—who will feel the weight of the court’s judgment.”

Yesterday the court also issued three opinions. First, in Manuel v. City of Joliet, the court held 6-2 that an arrestee can challenge his pretrial detention under the Fourth Amendment when the criminal charges are based on false information. Rory Little has this blog’s opinion analysis. In SCA Hygiene Products v. First Quality Baby Products, the justices ruled 7-1 that the common law defense of laches does not apply to a patent infringement suit for damages brought within the statutory limitations period. Ronald Mann analyzes the opinion for this blog. Howard Newman discusses the ruling at his eponymous law firm’s blog. And in National Labor Relations Board v. SW General, Inc., the court held 6-2 that someone nominated for a Senate-confirmed position may not serve in that position in an acting capacity. Amy Howe analyzes the opinion for this blog. In The Washington Post, Ann Marimow covers the decision, noting that the court’s holding makes it “more difficult for the president to quickly fill vacant top government jobs.” Additional coverage comes from Sam Hananel at the Associated Press. At his eponymous blog, Ross Runkel notes that hundreds “of NLRB decisions could be at risk after the Supreme Court’s decision that for three years Lafe Solomon served improperly as the NLRB’s Acting General Counsel.”

Yesterday the Senate Judiciary Committee conducted the second day of its hearing on the nomination of Judge Neil Gorsuch to the Supreme Court. Molly Runkle rounds up early coverage of and commentary on the proceedings for this blog. Additional coverage comes from Adam Liptak in The New York Times, Carl Hulse in The New York Times, Glenn Thrush in The New York Times, Robert Barnes and Ed O’Keefe in The Washington Post, Peter Kane in The Washington Post, Ariane de Vogue at CNN, Richard Wolf at USA Today, here and here, Mark Walsh at Education Week’s School Law Blog, here and here, Ken Jost at Jost on Justice, and Tony Mauro in The National Law Journal (subscription or registration required), who focuses on Neil Katyal’s decision to introduce Gorsuch.

Commentary on and analysis of the hearings comes from Richard Eskow at OurFuture, William Yeomans at ACSBlog, Adam Winkler, also at ACS Blog, Advice and Consent (podcast), David Fontana at Prawfsblawg, Christopher Ingraham in The Washington Post, Jay Michaelson in The Daily Beast, Robert Schlesinger at US News and World Report, Paul Callan at CNN, and Sen. Tom Harkin and Eve Hill in the Des Moines Register, At Empirical SCOTUS, Adam Feldman analyzes “various linguistic aspects of some senior senators’ preliminary remarks from recent confirmation hearings” and suggests that the trends he identifies may become “even more pronounced in the Gorsuch hearings.”

On Monday, the justices heard oral argument in Murr v. Wisconsin, in which they will decide what constitutes the “parcel as a whole” for the purpose of regulatory takings analysis. Miriam Seifter analyzes the argument for this blog. At The Washington Post’s Volokh Conspiracy blog, Ilya Somin worries that if “the oral argument is any indication, the case might well result in a muddled ruling that fails to provide clear guidance for either government regulators or property owners.”


  • In the American Bar Association’s Litigation magazine, Ashish Joshi interviews Justice Stephen Breyer about Breyer’s recent book, “The Court and the World,” exploring Breyer’s premise that judicial “isolationism in an interconnected world is not the way forward.”
  • At The George Washington Law Review’s On the Docket, Cynthia Lee looks at the court’s decision in Peña-Rodriguez v. Colorado, in which the justices held that evidence that a juror relied on racial animus to convict a criminal defendant trumps a Colorado no-impeachment rule, remarking that as “a vehicle for minimizing racial bias,” “the case may be of limited value in light of the fact that most bias today is implicit, not explicit.”

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (Mar. 22, 2017, 7:42 AM),