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Wednesday round-up

Ronald Mann has this blog’s argument analysis in Helsinn Healthcare v. Teva Pharmaceuticals, in which the justices considered yesterday whether the “on sale” bar to the patentability of an invention is triggered by a sale in which the purchaser is required to keep the details of the invention confidential. At Law360 (subscription required), Matthew Butman reports that the justices “wrestled with the idea that the America Invents Act may have narrowed the on-sale bar in patent cases, while leaving open the door for a possible exception to the bar for activities that aren’t commercial sales.”

For the Los Angeles Times, David Savage reports that Monday’s order in Fleck v. Wetch, requiring a lower court to reconsider a challenge to North Dakota’s mandatory bar dues in light of last term’s decision in Janus v. AFSCME, which held that public employees who don’t belong to a union can’t be required to pay fees to fund the union’s collective-bargaining activities, suggests that “the court’s majority now doubts the constitutionality of requiring lawyers to support a private bar association.” Commentary on the ruling comes from Deborah LaFetra in an op-ed at the Daily Journal.


  • At CNBC, Tucker Higgins writes that President George H.W. Bush, “who died Friday at 94, may have left his most enduring legacy on the Supreme Court, where he nominated two justices and paved the way for two more.”
  • As Ronald Mann recounts for this blog, the justices yesterday called for additional briefing in Carpenter v. Murphy, a capital case in which the justices are considering whether Congress has disestablished the boundaries of an Indian reservation in Oklahoma, affecting the state’s ability to prosecute crimes in the affected area.
  • At Constitution Daily, Lyle Denniston reports that, “[a]rguing that a state should not have to re-draw its congressional districts twice in a short time span, Maryland officials asked the Supreme Court on Monday to rule that the existing map can be used again in 2020 despite a lower court ruling that it is an unconstitutional partisan gerrymander.”
  • Mark Sherman reports for AP that “[w]hen you sit through almost all the Supreme Court arguments in a week, a month or even a term (as The Associated Press does), you hear the same phrases over and over,” and that “[s]ome justices have a sort of verbal signature, phrases they employ to disagree — more or less politely — with a lawyer arguing in front of them.”
  • At E&E News, Ellen Gilmer reports that “[t]he Supreme Court has signaled its interest in a potentially game-changing debate over the scope of the Clean Water Act” by asking the solicitor general to provide the government’s views in two cases that raise the question of “whether the law applies to pollutants that travel through groundwater before reaching surface water.”
  • At, Marcia Coyle looks into whether there is “a right way or a wrong way for an advocate to tell a U.S. Supreme Court justice that he or she is wrong during oral arguments.”
  • The American Constitution Society has published the second edition of its Supreme Court Review, which “features a series of critical essays, penned by the nation’s top legal scholars and practitioners, on the most important cases and themes from the Supreme Court’s October 2017 Term.”
  • The Buckeye Institute announces that it has “filed the first significant First Amendment labor-law challenge in the Supreme Court of the United States since the landmark June 27 decision in Janus v. AFSCME[:] The case, Uradnik v. Inter Faculty Organization, calls for an immediate end to laws that force public-sector employees to accept a union’s exclusive representation.”
  • At the Cato Institute’s Cato at Liberty blog, Luke Wake and others urge the justices to review Colony Cove v. City of Carson, a regulatory-takings case, and to hold that “[i]n the context of a temporary takings claim, … the analysis must focus on the economic impact of the restriction during the imposition rather than on the value remaining after a temporary restriction is lifted.”
  • At Empirical SCOTUS, Adam Feldman “examines the 2017 term [Supreme Court] case pipelines to see how partisanship helps us predict how judges vote in complex cases.” 

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (Dec. 5, 2018, 7:44 AM),