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Wednesday round-up

This morning the justices wind up the first week of the November sitting with two oral arguments. In the first case, Frank v. Gaos, the court has been asked to make it harder for companies to settle class-action lawsuits without providing direct compensation to class members, through a process known as “cy pres.” Ronald Mann previewed the case for this blog. Clotilde LeRoy and Jarrett Field have a preview for Cornell Law School’s Legal Information Institute. Subscript Law offers a graphic explainer. For the ABA Journal, Erwin Chemerinsky writes that the case “will matter greatly to nonprofit organizations and educational institutions that have benefited from cy pres awards.”

Today’s second case is Jam v. International Finance Corporation, in which the court will consider whether international organizations have the same immunity as foreign governments have under the Foreign Sovereign Immunities Act, which contains an exception for commercial activities. Amy Howe had this blog’s preview, which first appeared at Howe on the Court, and Garion Liberti and Tayler Woelcke preview the case for Cornell. At Just Security, Harold Hongju Koh and Patrick Pearsall maintain that if the employees of international organizations “commit egregious crimes, cheat local businesspeople, or commit mass environmental torts or human rights violations, justice and fairness demand that they be held as accountable as foreign states.”

Ronald Mann analyzes Monday’s argument in Henry Schein, Inc. v. Archer & White Sales, Inc., in which the justices considered whether a judge or an arbitrator should decide if a particular dispute should be resolved in arbitration rather than in court, for this blog. This blog’s argument analysis in Monday’s second case, 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, comes from Charlotte Garden. This week’s episode of First Mondays (podcast) focuses on the court’s arbitration docket this term.


  • At NPR, Nina Totenberg tells a newly revealed story about the personal relationship between two Stanford law students with impressive futures: In the early 1950s, “[t]he future chief justice of the United States … propos[ed] to the woman who years later would become the first woman to serve on the nation’s highest court.”
  • For the San Francisco Chronicle, Bob Egelko reports that in a recent talk at Stanford, retired Justice Anthony Kennedy lamented that “[b]itterly divided Americans have reached ‘a low point in our civic dialogue.’”
  • At The Daily Signal, Elizabeth Slattery and Ashley Vaughan highlight “three cases to watch closely in the coming weeks.”
  • At Law360 (subscription required), Kelcee Griffis reports that the court “has delayed announcing whether it will hear the closely watched net neutrality appeal and has indicated that the earliest it will say whether certiorari has been granted is after a conference scheduled for Friday.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.]
  • In an op-ed for The National Law Journal (subscription or registration required), Ria Tabacco Mar weighs in on a cert petition stemming from a sex discrimination suit filed by a transgender funeral-home employee, arguing that “[i]f the funeral home succeeds and the Supreme Court strips LGBTQ people of sex discrimination protections that have been recognized by a growing number of courts, the immediate blow would be to LGBTQ people,” but “the permanent damage would be to the court itself.”

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (Oct. 31, 2018, 7:11 AM),