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Tuesday round-up

This morning, the court will hear oral argument in two cases. The first is South Dakota v. Wayfair, in which the justices will reconsider a ruling that limits the ability of state governments to require out-of-state online retailers to collect tax on sales to state residents. Mark Walsh previewed the case for this blog. Katherine Thibodeau and Simon Bord have a preview at Cornell Law School’s Legal Information Institute. Subscript provides a graphic explainer for the case, and the latest episode of First Mondays (podcast) includes a preview. For The Washington Post, Robert Barnes and Abha Battarai report that “[t]he case requires the court to consider whether a decision made in the era of mail-order catalogues still makes sense in a time of one-click shopping, when a website can be more appealing and convenient.” Additional coverage comes from Pete Williams at NBC News, Greg Stohr at Bloomberg, Lawrence Hurley at Reuters, Maria Halkias for The Dallas Morning News, Jessica Gresko at the Associated Press, Mark Walsh at Education Week’s School Law Blog, Steven Mazie at The Economist’s Espresso blog, Richard Wolf for USA Today, and Nina Totenberg at NPR, who reports that “[t]he two sides … agree on almost nothing — not the economic facts, not the amount lost in sales taxes, not even on who is hurt by the court’s prior decisions.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]

This morning’s second argument is in Lamar, Archer & Cofrin, LLP v. Appling, which asks whether a false statement about a single asset can be a statement respecting the debtor’s financial condition that precludes the discharge of a debt in bankruptcy. Danielle D’Onfro had this blog’s preview. Connor O’Neil and Abigail Yeo preview the case for Cornell. Subscript’s graphic explainer is here.

Yesterday the court issued orders from the justices’ private conference last Friday. Amy Howe covers the order list for this blog; her coverage first appeared at Howe on the Court. For the Chicago Tribune, Jason Meisner reports that the justices “for the second time rejected an appeal by imprisoned former Gov. Rod Blagojevich of his convictions on corruption charges.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.] At The Daily Caller, Kevin Daley reports that the justices also “turned down a First Amendment challenge to a noise provision of Maine’s civil rights law used to police abortion clinic protests.”

Daniel Hemel has this blog’s analysis of yesterday’s argument in Wisconsin Central Ltd.v. United States, which asks whether stock options are taxable compensation under the Railroad Retirement Tax Act. At Law360 (subscription required), Amy Lee Rosen reports that “[a]ttorneys for subsidiaries of a Canadian railroad company and the federal government each tried to persuade the [justices] to find their interpretation of ‘money remuneration’ under the Railroad Retirement Tax Act appropriate as it related to whether more than $13 million in stock options were considered taxable.”

Yesterday’s second argument was in WesternGeco LLC v. ION Geophysical Corp., in which the justices considered whether damages for infringement of a domestic patent overseas include lost profits for overseas contracts the patentholder would have obtained if the infringement had not occurred. Ronald Mann analyzes the argument for this blog. In an op-ed for The Hill, Charles Duan argues that “allowing for worldwide damages would make it more risky, from a patent liability standpoint, to do research and development in the United States, thus pushing research into foreign nations.”


  • For The New York Times, Adam Liptak observes that in Trump v. Hawaii, a challenge to the latest version of the Trump administration’s entry ban, which “is likely to yield a major statement on presidential power,” “the justices will act in the shadow of their own decision in Korematsu v. United States, which endorsed Roosevelt’s 1942 order [interning over 110,000 people of Japanese ancestry] and is almost universally viewed as a shameful mistake.”
  • At The World and Everything In It (podcast), Mary Reichard discusses the oral arguments in two cases involving the federal sentencing guidelines, Koons v. United States and Hughes v. United States.
  • At The Ringer, Danny Heifetz offers a primer on Murphy v. National Collegiate Athletic Association, a constitutional challenge to the federal ban on sports betting.
  • At the Maryland Appellate Blog, Michael Wein discusses the pending cert petition in Bostic v. Dunbar, which raises an Eighth Amendment challenge to the 241-year sentence Bostic received in 1997 for a series of armed robberies he committed when he was 16 years old.
  • At FiveThirtyEight, Amelia Thomson-DeVeaux explores the considerations that may influence Justice Anthony Kennedy’s decision about whether “to retire when the term recesses in June,” noting that Kennedy “is in a particularly difficult position because he holds an unusual amount of power on the current court, and he has good reason to be concerned that a Trump-appointed successor might undermine key parts of his judicial legacy.”

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Apr. 17, 2018, 7:19 AM),