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Tuesday round-up

This morning, the justices will hear oral argument in two cases. First up is Washington State Department of Licensing v. Cougar Den Inc., which asks whether an 1855 treaty created a right for members of an Indian tribe to avoid taxes on off-reservation commercial activities that involve travel on public highways. Bethany Berger previewed the case for this blog. Matt Farnum and Trevor O’Bryan have a preview for Cornell Law School’s Legal Information Institute. At Greenwire (subscription required), Ellen Gilmer reports that this is “one of several cases the high court has accepted this term that wade into complex and contentious questions of American Indian law.” This morning’s second case is Garza v. Idaho, in which the justices will decide whether a criminal lawyer can refuse to file an appeal from a guilty plea because of a plea waiver. Evan Lee had this blog’s preview; Basem Besada and Luis Lozada preview the case for Cornell.

In Henry Schein, Inc. v. Archer & White Sales, Inc., the justices considered yesterday whether a judge or an arbitrator should decide if a particular dispute should be resolved in arbitration rather than in court. At Law360 (subscription required), Bryan Koenig reports that the court’s “liberal minority dominated oral arguments … as they searched for possible off-ramps to arbitration proceedings like the one nixed by the Fifth Circuit after several dental equipment companies used a contractual clause to force a distributor’s antitrust case to arbitration.” Yesterday’s second case was Lamps Plus Inc. v. Varela, which asks whether the Federal Arbitration Act precludes state-law interpretations of arbitration contracts that would allow class-wide arbitration. Adam Liptak reports for The New York Times that the court “seemed prepared … to rule that workers at a California business could not band together in an arbitration proceeding to seek compensation for what they said was their employer’s failure to protect their data.”

Yesterday the justices also issued orders from last Friday’s conference; as expected, they did not agree to review any additional cases, but they did ask for the views of the solicitor general in a patent case and a case involving a lawsuit arising from a cross-border shooting by a Border Patrol agent. Amy Howe covers the order list for this blog, in a post that first appeared at Howe on the Court.

For the ABA Journal, Mark Walsh previews Frank v. Gaos, a challenge to the “use of a particular type of remedy in class actions known as cy pres,” which “emerged in the 1970s as a solution to class actions with large and diffuse memberships for whom individual cash awards might be paltry,” and which “typically involve contributions to charities or nonprofit organizations that advance the goals pursued in the class action.” For USA Today, Richard Wolf reports that if the challengers to the cy pres practice prevail, “[t]he justices aren’t likely to go beyond setting broad standards for lower court judges to follow.”


  • Amy Howe reports for this blog that the federal government yesterday asked “the justices to intervene once again in a dispute over the Trump administration’s decision to reinstate a question about citizenship on the 2020 census[:] The government asked the court to block a trial in the case, which is currently scheduled for November 5, until the court can rule on the government’s petition seeking to limit the scope of the trial.”
  • At The World and Everything In It (podcast), Mary Reichard discusses the oral arguments in maritime-law product-liability case Air and Liquid Systems Corp. v. Devries, arbitration case in New Prime Inc. v. Oliveira, and age-discrimination case Mount Lemmon Fire District v. Guido. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondent in Air and Liquid Systems.]
  • At E&E News, Ellen Gilmer previews Jam v. International Finance Corporation, “[a] long-running battle over a coal-fired power plant in India lands at the Supreme Court this week … that could have big implications for international environmental law.
  • In an episode of Bloomberg Law’s Cases & Controversies podcast, Perry Cooper, Kimberly Robinson and Jordan Rubin “preview the action in the latest cases involving the Federal Arbitration Act, sovereign immunity, and more.”
  • At Crime & Consequences, Kent Scheidegger observes that United States v. Haymond, a constitutional challenge to a statute requiring a judge to send back to prison a sex offender found to have violated the conditions of supervised release, which the court agreed last Friday to review, involves “an area where the Supreme Court does not divide on the usual ideological lines.”

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Oct. 30, 2018, 6:50 AM),