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We are hosting a series of tributes to Justice John Paul Stevens. Contributions are available at this link.

Friday round-up

By on Jul 12, 2019 at 6:51 am

Amy Howe reports for this blog that yesterday “President Donald Trump announced that his administration will end its battle to include a question about citizenship on the 2020 census … two weeks after the Supreme Court blocked the government from including the question.” For The New York Times, Katie Rogers and others report that the president “instructed the government to compile citizenship data from existing federal records instead.” Additional coverage comes from Mark Walsh at Education Week’s School Law Blog. In an op-ed for The Washington Post, Leah Litman and Joshua Matz call the result “a resounding victory for the rule of law over the rule of Trump.” At The Atlantic, John Yoo and James Phillips maintain that “the census case—especially when viewed alongside lower-profile cases that the high court decided this term—signals the beginnings of a long-term shift in the tectonic plates of our constitutional system that will challenge government by administrative agency, rather than by our elected representatives.” Additional commentary on the Supreme Court’s census decision comes from Adam Carrington in an op-ed for Fox News.

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This afternoon President Donald Trump announced that his administration will end its battle to include a question about citizenship on the 2020 census. The news came two weeks after the Supreme Court blocked the government from including the question, with the court’s four liberal justices joining Chief Justice John Roberts in ruling that the reason that the government had offered for including the question was a pretext. Trump stressed that the government was not “backing down on our efforts” to gather citizenship data, and he explained that it would instead do so using existing government records – much as the Census Bureau had originally suggested.

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Thursday round-up

By on Jul 11, 2019 at 6:35 am

Briefly:

  • For The Wall Street Journal, Jess Bravin reports that a “federal judge in Maryland said Wednesday that President Trump’s public remarks about immigrants and personal insistence on placing a citizenship question on the census could help determine whether the government intended to discriminate against Hispanics by adding the query.”
  • At The George Washington Law Review’s On the Docket blog, Robin Maher writes that although “[t]he decision [in Flowers v. Mississippi, in which the court held that a prosecutor’s repeated use of peremptory challenges to remove black people from the jury pool violated the Constitution], is very welcome, … Supreme Court decisions will not end racial jury discrimination.”
  • At Take Care, Joshua Matz “address[es] three of the most common arguments against protecting transgender people under Title VII” in the latest of a series of posts about a case next term that presents the question.

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

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Petitions of the week

By on Jul 10, 2019 at 4:06 pm

This week we highlight petitions pending before the Supreme Court that address, among other things, the requirements for a foreign company’s sales of components to qualify as induced infringement; when per diem payments to an employee constitute wages, rather than reimbursement, under the Fair Labor Standards Act; and whether Title III of the American with Disabilities Act requires a website or mobile phone application to satisfy discrete accessibility requirements in certain situations.

The petitions of the week are:

18-1530

Issue: Whether, in view of the presumption against extraterritoriality, a foreign defendant’s foreign sales of components to a foreign company qualify as induced infringement, when the defendant knew of, at most, a risk that the components might be incorporated by third parties into infringing products that might be sold by other third parties in the United States.

18-1539

Issue: Whether Title III of the Americans with Disabilities Act requires a website or mobile-phone application that offers goods or services to the public to satisfy discrete accessibility requirements with respect to individuals with disabilities.

18-1540

Issues: (1) Whether a plaintiff must prove that a defendant engaged in some form of volitional conduct in order to prove direct copyright infringement, as described in Justice Antonin Scalia’s dissenting opinion in American Broadcasting Companies v. Aereo, Inc.; (2) whether, if so, that requirement is properly understood as identical to common-law proximate causation, as the U.S. Court of Appeals for the 9th Circuit held here and as one member of the panel opined in BWP Media USA Inc. v. Polyvore Inc.; or a less demanding causation standard, as the U.S. Courts of Appeals for the 3rd, 4th and 5th Circuits have held; or requiring only an affirmative act with a meaningful connection to the infringement, as suggested by other members of the U.S. Court of Appeals for the 2nd Circuit panel in Polyvore; and (3) whether a volitional-conduct requirement insulates from liability for direct infringement defendants who create and maintain automated systems for making copies of content not requested by users, as the 9th Circuit held, in conflict with the Supreme Court’s decision in Aereo and opinions of the U.S. Courts of Appeals for the District of Columbia and 2nd Circuits.

18-1541

Issue: Whether, and under what circumstances, per diem payments to an employee constitute wages, rather than reimbursement, under Section 207(e)(2) of the Fair Labor Standards Act.

On July 11, the Heritage Foundation will host two panels for its annual Supreme Court review. Panelists from 11 a.m. to 12 p.m. will include Mike Carvin, Andy Pincus and Kannon Shanmugam; John Malcolm will serve as moderator. Panelists from 12 p.m. to 1 p.m. will include Jess Bravin, Adam Liptak and Richard Wolf; Elizabeth Slattery will serve as moderator. More information about these panels, which will also be available by live stream, is available at this link.

 
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Wednesday round-up

By on Jul 10, 2019 at 7:29 am

At The Economist’s Democracy in America blog, Steven Mazie charts recent developments in the government’s renewed efforts to ask about citizenship on the 2020 census after the Supreme Court blocked the question at the end of June. Jess Bravin and Sadie Gurman report for The Wall Street Journal that a “federal judge in New York on Tuesday rejected the Trump administration’s plan to switch legal teams in the census case.” At Balkinization, Simon Lazarus maintains that “to dismiss [Chief Justice John] Roberts’ census decision as simply or even primarily political, is wrong, misleading, and even dangerous – as was the identical, widespread misread of his NFIB v. Sebelius decision to uphold the Affordable Care Act individual mandate as a tax.”

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On June 28, SCOTUSblog’s Tom Goldstein and Sarah Harrington participated in a webinar discussing the major cases at the Supreme Court this term. The discussion, moderated by Laura Safdie from Casetext, covered Department of Commerce v. New York, holding that a question about citizenship cannot be added to 2020 census until the Commerce Department provides an adequate explanation for doing so,  Rucho v. Common Cause and Lamone v. Benisek, holding that partisan-gerrymandering claims present political questions that cannot be reviewed by federal courts, and other cases. Video of the webinar is available at this link. Audio is available below.

More than a year ago, Justice Stephen Breyer released the final ruling of October Term 2017 when he announced the decision in Florida v. Georgia, “breezily” summarizing “the ruling in this water dispute that he acknowledges is not a blockbuster.” Although the Supreme Court may have found this to be a technical case, it is of paramount importance to Florida and Georgia. After holding that Special Master Ralph Lancaster had applied too strict a standard in ruling against Florida, the court sent the case back to the special master with a set of questions to answer. Some had hoped the case could proceed quickly; however, it now seems to have stalled.

On August 9, 2018, the court discharged Ralph Lancaster and replaced him with a new special master, Judge Paul J. Kelly, Jr., of the U.S. Court of Appeals for the 10th Circuit. Kelly promptly issued a case management order on August 23, 2018, asking the parties to consider whether the existing record was sufficient to resolve the case or whether more discovery, stipulations or hearings would be needed; whether settlement possibilities have been explored; and whether there were any other issues.

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Tuesday round-up

By on Jul 9, 2019 at 6:53 am

Briefly:

  • Sadie Gurman and Jess Bravin report for The Wall Street Journal that “Attorney General William Barr said Monday he expects to find a legal way to add a citizenship question to the 2020 census, less than a week after the Justice Department said it would drop the attempt in the wake of a Supreme Court decision blocking it.”
  • At the Yale Journal on Regulation’s Notice & Comment blog, Bernard Bell offers the second of a two-part post on the implications of Food Marketing Institute v. Argus Leader Media, in which the court held that when commercial or financial information is treated as private by its owner and given to the government with an assurance of privacy, that information is “confidential” under Exemption 4 to the Freedom of Information Act.
  • At The Oklahoman, Chris Casteel reports on the court’s decision to restore Carpenter v. Murphy, which asks whether Oklahoma had power to try Patrick Murphy for a murder that took place on land that was part of the Creek Nation, to its calendar for reargument, noting that the court “likely deadlocked and may try a different approach in its next term.”
  • At The Chicago Daily Law Bulletin (subscription required), Daniel Cotter has the first of a two-part look back at the recent Supreme Court term.
  • Kevin Daley writes at The Daily Caller that, according to a new book about the nomination of Justice Brett Kavanaugh, “[l]awyers associated with the Trump campaign consulted retired Justice Anthony Kennedy while compiling a list of prospective Supreme Court nominees during the 2016 presidential campaign.”

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

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On July 10 at 1 p.m., the International Municipal Lawyers Association hosts a webinar on police cases before the Supreme Court this past term. Panelists will include Spencer Driscoll and Lauren Kuley; Lisa Soronen will serve as moderator. More information about this event is available at this link.

On July 23 at 1 p.m., the State and Local Legal Center will host a Supreme Court review. Speakers will include Judith Vale and Paul Hughes; Lisa Soronen will serve as moderator. More information about this event is available at this link.

 
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