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Wednesday round-up

This morning the justices will hear oral argument in a high-profile Fourth Amendment case, Carpenter v. United States, which asks whether the government must obtain a warrant before obtaining cell-site-location information from cellphone service providers. Amy Howe had this blog’s preview. Madeline Horn and Conley Wouters preview the case for Cornell Law School’s Legal Information Institute. For The Washington Post, Robert Barnes reports that the case calls on the justices to “undertake[] a potentially landmark examination of how law enforcement’s use of technology impacts the American notion of privacy.” Additional coverage comes from Erin Fuchs at Yahoo Finance and from Jess Bravin and Ryan Knutsen for The Wall Street Journal, who report that “there is widespread criticism that allowing authorities to compile such granular data about an individual’s life, without a judicial warrant, no longer meets society’s ‘reasonable expectation of privacy’—the touchstone of the Supreme Court’s approach to constitutional limits on searches and seizures.” Commentary on the case comes in a Daily Journal podcast and from Elizabeth Wydra in an op-ed for the Cleveland Plain Dealer.

Yesterday the court heard argument in two cases. The first was Cyan v. Beaver County Employees Retirement Fund, which asks whether state courts have jurisdiction to hear Securities Act class action lawsuits under the Securities Litigation Uniform Standards Act. Ronald Mann analyzes the argument for this blog. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.]

Yesterday’s second argument was in Digital Realty Trust Inc. v. Somers, which involves the whistleblower protections of the Dodd-Frank Act. For The New York Times, Adam Liptak reports that the justices “seemed ready … to interpret a federal law protecting whistle-blowers narrowly, barring many retaliation suits from people who say they were fired for reporting wrongdoing.” Additional coverage of the argument comes from Greg Stohr at Bloomberg, Richard Wolf for USA Today, Andrew Chung at Reuters, Lydia Wheeler at The Hill, and David Savage at the Los Angeles Times, who notes that “[s]everal liberal justices said they were troubled about leaving internal whistleblowers unprotected, but none voiced support for allowing Somers to sue.” Scott Oswald analyzes the argument for Law 360 (subscription required). Commentary comes from Ross Runkel at his eponymous blog. Subscript has a graphic explainer for the case.

Two patent cases were argued on Monday. The first was Oil States Energy Services v. Greene’s Energy Group, a challenge to the constitutionality of inter partes review, a process used to determine the validity of existing patents. Ronald Mann has this blog’s argument analysis. At PrawfsBlawg, Hannibal Travis explains how the argument “put competing judicial philosophies on brief display.” The second case, SAS Institute Inc. v. Matal, asks whether the board conducting an inter partes review must issue a final written decision as to all the claims raised by a challenger. Ronald Mann analyzes that argument for this blog.

For Sports Illustrated, Andrew Brandt suggests that Christie v. National Collegiate Athletic Association, a constitutional challenge to the federal ban on sports betting that will be argued next week, “could have dramatic effects on the NFL and other sports leagues, as well [as] collegiate athletics.” At Legal Sports Report, Dustin Gouker observes that “[i]f New Jersey wins in the Supreme Court and PASPA is struck down, the state-by-state regulation model will likely become a train that can’t be stopped.”


  • At the Associated Press, Mark Sherman reports that “Jim Robbins’ seven years of service at the Supreme Court was not enough to keep him from the being the second lawyer this year who was mistakenly suspended from the court’s prestigious bar.”
  • In an op-ed for Forbes, Robert Alt weighs in on Janus v. American Federation of State, County, and Municipal Employees, Council 31, in which the court will consider whether an Illinois law allowing public-sector unions to charge nonmembers for collective-bargaining activities violates the First Amendment, noting that “even if Mr. Janus wins in court, public sector union members will still have no say regarding which union represents their bargaining unit.”
  • At The Federalist, Margot Cleveland suggests that the court’s call for a response to the government’s motion to lodge non-record material under seal in Hargan v. Garza, in which the solicitor general has asked the justices to vacate a lower-court decision in favor of a pregnant undocumented teen who was attempting to obtain an abortion and to discipline the teen’s attorneys, reveals “a concern over the ACLU’s conduct or some interest in the substance of the government’s petition for review.”
  • At Stanford Law School’s Legal Aggregate blog, Gregory Ablavsky takes issue with Justice Clarence Thomas’ dissent from the court’s denial of cert this week in Upstate Citizens for Equality United States, which challenged Congress’ power to take land into trust under the Indian Reorganization Act; he encourages Thomas “to examine U.S. history to consider which sovereigns—the states or Native nations—have been at greater risk at having their ‘territorial integrity’ compromised by federal overreach.”

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (Nov. 29, 2017, 7:02 AM),