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Petition of the day

Fri, 04/28/2017 - 23:36

The petition of the day is:

Missouri ex rel. Hawley v. Becerra 16-1015

Issue: Whether a state has parens patriae standing to challenge another state’s commercial regulations on the ground that those regulations violate the commerce clause by impermissibly discriminating against out-of-state commerce, unduly burdening interstate commerce and purporting to regulate commercial activity that occurs entirely outside the borders of the regulating state.

The post Petition of the day appeared first on SCOTUSblog.

Categories: Research

Argument analysis: The Supreme Court struggles with the ACA’s patent provisions

Fri, 04/28/2017 - 09:01

In a surprise to virtually no one, the oral argument in the consolidated patent cases Sandoz v. Amgen and Amgen v. Sandoz showed the Supreme Court struggling to understand both the highly complex patent provisions in the Affordable Care Act (aka the “Obamacare” statute) and the many procedural complexities of the underlying litigation.

The argument began with an unusual announcement by Chief Justice John Roberts, who told the lawyers for the two battling pharmaceutical firms that “the Court has decided to give each of you five extra minutes” of argument time.  Each advocate must have thought, “Wow, five whole minutes! For each of us! How generous!”

Joking aside, however, I’m sure that the advocates understood what the court was doing. The court could not possibly have thought that the five more minutes would really bring much more clarity to the issue. Even five extra hours of argument might not have helped much. The extra time signals to the lawyers, and to the larger biomedical community that cares about these legal issues, that the court understands that this litigation is far more complex than most others and that the justices are willing to put in extra effort to try to resolve the relevant issues in a conscientious manner.

The five additional minutes might signal something else too. There is, I believe, a real chance that the court might decline to rule on some or even all of the issues presented in these consolidated cases. You read that correctly: The justices may not decide any of the issues but instead might dismiss as improvidently granted the petitions for certiorari in the case (a so-called “DIG” of the petitions). The extra minutes might be designed to show that the court was not merely trying to avoid work or otherwise being cavalier in waiting to opine on the issues until another day.

Such DIGs are unusual, but so are the consolidated cases here. In one of the most highly cited cases concerning DIGs, The Monrosa v. Carbon Black Export, Inc., the court wrote that its function is to “decide[] questions of public importance,” but only “in the context of meaningful litigation,” and not simply to answer questions in an “administrative or managerial” role.

At multiple points in the oral argument, the parties seemed to be encouraging the justices to assume just such an administrative or managerial role with respect to this statute (the 17-page biosimilars subchapter contained in the larger ACA).  As mentioned in my argument preview, all of the issues in this particular case are moot, and the court granted certiorari based on the exception to mootness for issues “capable of repetition yet evading review.” Yet as the argument played out, this particular litigation seemed more unusual and less typical, and the parties were seeking rulings that may or may not be relevant to future cases. Justice Stephen Breyer was the most vocal of the justices in rejecting such a role, as he repeatedly stated that the issues would be better resolved in a comprehensive administrative rulemaking rather than in Supreme Court litigation.

Below I will discuss the specific issues raised in the litigation, and in doing so, I will follow the structure of my argument preview, which described the issues in five layers. Throughout my discussion, however, I will point out the places in the argument where comments by the justices and even by the attorneys seem to hint that the case may be a poor vehicle for answering the questions presented.

*                      *                    *

Very few questions at the oral argument focused on the two most general aspects of the case: (i) the long-running policy war over the optimal level of patent protection for medicines, and (ii) the complex technology of biologics and biosimilars. The dearth of questions on those matters is to be expected. The justices clearly understood that, in enacting the relevant statute, Congress was trying to strike a balance between patent protection and access to medicines, and that the underlying complexities of the technology partly explain why the statute is so complex. The justices were instead devoting almost all of their attention to trying to discern what balance had been struck by Congress.

The first specific legal issue that gave rise to the litigation between Amgen and Sandoz is whether, under the statute, Amgen was entitled to obtain Sandoz’s FDA application to market a biosimilar to Amgen’s drug filgrastim (trade name Neupogen). One of the very first steps in the statutory “exchange of information” process is that the applicant for a biosimilar license – here Sandoz – “shall provide to the [research pharmaceutical company] a copy of the application submitted [to the agency] under subsection (k).” Amgen’s position is that “shall” in that sentence means that the disclosure is mandatory, and that a federal court may issue injunctive relief if the application is not disclosed. Sandoz argues that disclosure is optional, with the statute merely permitting a declaratory judgment action about possible patent infringement if the application is not provided.

A few points of clarity emerged on this issue, but no real resolution. The court seemed willing to assume that the word “shall” bespeaks a mandatory duty. At one point in his questioning of Amgen’s lawyer—former Solicitor General Seth Waxman — Justice Neil Gorsuch said, “let’s say I spot you that … ‘shall’ means shall.”  The hard issue is then whether the statute’s listed consequences for nondisclosure are the exclusive remedies, and as Justice Gorsuch noted, “it’s hard to divorce a right from its remedy.”

Justice Sotomayor questions Seth P. Waxman, the lawyer for Amgen (Art Lien)

Justice Stephen Breyer then identified the key ambiguity in the statute, stating: “You’re right. ‘Shall’ means ‘shall.’ Okay? But [the remedial provision in the federal statute] doesn’t say that’s the only remedy or that there are others.” The statute provides a remedy for the applicant’s non-disclosure of its FDA application, but it is ambiguous as to whether that remedy is exclusive.

In the underlying litigation, Amgen sued Sandoz and received Sandoz’s application in discovery, so the issue of the remedy for nondisclosure is moot in this litigation. Nevertheless, the justices speculated about whether such a disclosure-via-discovery solution would always be present or was the exception.  Questioning Sandoz’s counsel — former Assistant to the Solicitor General Deanne Maynard — Justice Sonia Sotomayor asked whether other litigants would generally have “a good-faith basis” for bringing such a suit so that the FDA application could be obtained in discovery. That question led to extended speculation about possible future lawsuits, and that sort of speculation might very well be a signal to the court that it’s a bad idea to decide a moot legal question without seeing the issue arise in a more concrete context.

The next issue in the case was whether the biosimilar applicant Sandoz provided proper notice to Amgen. The statute required Sandoz to provide notice “not later than 180 days before the date of the first commercial marketing of the biological product licensed [by the FDA].” Sandoz sent the notice while its biosimilar application was still pending before the FDA, and the U.S. Court of Appeals for the Federal Circuit held that notice to be too early. Logically, the Federal Circuit believed, the notice would have “to follow licensure, at which time the product, its therapeutic uses, and its manufacturing processes are fixed.”

Breyer again identified the precise ambiguity in the statute that creates uncertainty here. He rhetorically asked: “What does this notice [have to] say?” He then started to paraphrase the statute and realized that the statute does not provide any indication about the information that should be in the notice. It’s a “crucial ambiguity,” he noted. At that point, he suggested that the contents of the notice would be better decided by administrative regulation, admitting that he was “operating in a field I know nothing about,” and then asking “[s]o why isn’t the way to go about this case to ask the agency to issue some regulations?”

Later in the argument, Breyer returned to that idea, but admitted that the court may not be able to prod the agency into action: “I would stick with the idea of the FDA doing this first, but maybe I can’t get there. And if I can’t get there, I’m stuck.”

Deanne E. Maynard, the lawyer for Sandoz (Art Lien)

The last issue in the case is whether federal courts could provide injunctive remedies that are not expressly authorized in this particular statute. In my preview, I worried that the court might inadvertently decide a major issue concerning the scope of federal equity powers without realizing the full implications of such a decision. The oral argument, however, focused on a different theory — a theory that (no surprise here) is hopelessly muddled in this litigation.

The oral argument focused on Amgen’s theory that, to remedy any violations of the biosimilar provisions in the ACA, Amgen could rely on the California’s Unfair Competition Law, which authorizes injunctive relief for any “unlawful, unfair or fraudulent business act or practice.”

I did not discuss that theory in my preview because my reaction to the argument was similar to that of John Roberts, who commented: “[T]his is a very reticulated statute with enormous consequences, and you’re reading along and you finally figure it out, and all of a sudden up pops California law.” Roberts seemed to indicate that he thought such a combination of state and federal law would be “odd” and that the state law could not be used to supplement the federal statute under “well-established preemption” principles.

Amgen’s lawyer Waxman had an answer for that: “[P]reemption was waived” by Sandoz! Roberts was unpersuaded, but not because he disagreed that the issue had been waived. Rather, he said: “I understand [the waiver problem], but I’m not going to interpret a Federal statute based on the decisions of one party to waive the argument or not.”

To any sophisticated observer of the Supreme Court, the entire exchange between Waxman and Roberts points to what’s wrong with this case. Roberts is absolutely correct that the court isn’t in the habit of “interpret[ing] a Federal statute based on the decisions of one party to waive the argument.” But the court doesn’t routinely forgive waivers either. In fact, the justices do not usually hear such cases at all because they typically deny certiorari when a case has such a significant procedural problem.

*                      *                    *

In closing, I’ll note a final general impression about the argument. At numerous points, the advocates and the justices found themselves speculating about how this statute might work, but it’s clear that the discussion was speculative because the statute is so new.

For example, the Roberts asked “how often” a particular issue is likely to arise, and Waxman answered “[w]e don’t have a sufficient data set [because the FDA] has only granted 5 [applications], the last one being last Friday.” Earlier in the argument, Justice Elena Kagan asked Maynard whether “as a matter of practice, … that’s the way people operate under this statute.” Maynard answered that Amgen took that course in this case and “this is the only situation in which I’m aware ….”

The best line — one that received a good bit of laughter — came after Maynard speculated about the strength of the “incentives” provided by the statute for parties to take certain actions, and Sotomayor interrupted: “All incentives have a way of failing. Just look at our society.”

It’s a funny line. But it hints at a serious question about the proper role of the court in deciding complex issues arising under a new statutory scheme, and the justices seem to be thinking about that as much as about the substantive issues presented in these consolidated cases. We will know more about how that concern plays out by the end of June.

The post Argument analysis: The Supreme Court struggles with the ACA’s patent provisions appeared first on SCOTUSblog.

Categories: Research

Arkansas executes fourth inmate in one week

Fri, 04/28/2017 - 08:34

Without any recorded dissents, the Supreme Court last night declined to block the execution of Kenneth Williams. Williams was the fourth inmate executed in Arkansas in a week; the state had sought to execute eight inmates over a span of 11 days so that it could carry out the executions before one of the drugs in its lethal injection protocol expired, but four other inmates had their executions stayed. The 38-year-old Williams had been serving a life sentence without parole for the 1998 murder of Dominique Herd when he escaped from prison and murdered Cecil Boren, who lived near the prison. Williams stole Boren’s truck; driving the truck while trying to evade capture, Williams struck and killed another driver, Michael Greenwood. Williams was sentenced to death in 2000.

In filings yesterday at the Supreme Court, Williams argued that his execution should be put on hold to allow him to demonstrate that he is intellectually disabled and therefore cannot be put to death. But the justices were unwilling to step in. They issued orders denying Williams’ request for relief shortly after 11 p.m. EDT, the state began to administer the lethal injection a little less than an hour later, and Williams was pronounced dead at 11:05 p.m. CDT.

The post Arkansas executes fourth inmate in one week appeared first on SCOTUSblog.

Categories: Research

Friday round-up

Fri, 04/28/2017 - 07:09

At Reuters, Lawrence Hurley reports that during Wednesday’s argument in Maslenjak v. United States, an immigration case, Chief Justice John Roberts “took issue … with the Trump administration’s stance,” “saying it could make it too easy for the government to strip people of citizenship for lying about minor infractions.” Additional coverage of the argument in Maslenjak comes from Britain Eakin at Courthouse News Service, who reports that the justices offered “hypothetical examples from failing to disclose nicknames to lying about weight to walking into an immigration hearing with a pocket knife.”

 Briefly:

  • As the court heads “toward the home stretch of an eventful and unusual term,” Constitution Daily offers “a quick update of the major cases heard in Court since October.”
  • At Bloomberg BNA, Patrick Gregory reports on the court’s decision this week in Lewis v. Clarke, holding that a tribe’s sovereign immunity does not extend to a tribal employee sued in his individual capacity, noting that the court suggested that “personal immunity defenses may still be available for tribal employees in some cases.”
  • The World and Everything in It features a discussion of the oral argument in Trinity Lutheran Church of Columbia, Inc. v. Comer, a constitutional challenge to Missouri’s exclusion of a church-run preschool from a state program that provides grants to nonprofits to resurface playgrounds.
  • At his eponymous blog, Lyle Denniston reports that for “the fourth time in the past eight days, the Supreme Court on Thursday night refused to delay an execution in Arkansas,” acting with “no recorded dissents.”
  • Mark Walsh has this blog’s coverage of an event yesterday at Georgetown Law’s Supreme Court Institute honoring Jeffrey Minear, the counselor to Chief Justice John Roberts.

Remember, we rely exclusively 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, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

The post Friday round-up appeared first on SCOTUSblog.

Categories: Research

Roberts, Georgetown Law honor counselor to the chief justice

Fri, 04/28/2017 - 07:00

With the final arguments of the Supreme Court term completed on Wednesday, Georgetown Law on Thursday held its traditional reception to thank participants in its moot court program and to recognize a special guest.

The honoree this year was Jeffrey Minear, the counselor to Chief Justice John Roberts. And the reception brought together Roberts, Justice Elena Kagan, members of the U.S. solicitor general’s office, a couple of federal appeals court judges, and numerous specialists of the Supreme Court bar, not to mention invited law students and their more casually dressed classmates who slipped in to grab an hors d’oeuvre or a selfie with a justice.

Remarks at the event shed light on the wide range of non-judicial activities at the court, especially the many extra duties of the chief justice.

Deputy Solicitor General Edwin Kneedler noted some of these roles, including overseeing the Judicial Conference of the United States, serving on the board of regents and as chancellor of the Smithsonian Institution, and welcoming foreign judicial delegations.

Minear, who has been counselor to the chief justice since 2006, has been vital to helping Roberts fulfill those duties, Kneedler said, all the time displaying “great discretion and modesty.”

“He is, in short, a terrific ambassador of the court” to the bar and the public, Kneedler said.

Many people probably know little or nothing about Minear or his job, which is described in an act of Congress as “performing such duties as may be assigned to him by the chief justice,” Kneedler said.

When Roberts took the lectern, he added even more about the variety of tasks filled by his counselor. But that was only after the chief justice alluded to this week’s attention-getting development in the courtroom—the interruption of oral argument on Tuesday by the ringing of Justice Stephen Breyer’s digital device.

“First of all, I’d like to remind everyone to please turn off your cellphones,” Roberts said, drawing hearty laughs.

He then added to Kneedler’s description of Minear’s successful 21-year career in the solicitor general’s office, where Minear specialized in environmental, Indian, and original jurisdiction cases involving the states as parties, before taking the counselor’s job.

Roberts noted that he and Minear were once on opposite sides of an original jurisdiction case between Alaska and the United States that brought them together on a weeklong fact-finding mission on a fisheries boat in Glacier Bay, along with the case’s special master.

“You really do get to know someone well when you are in close quarters on a fisheries vessel for a week,” the chief justice said. Minear won the case, though Roberts noted that he was no longer involved as a lawyer representing Alaska by the time the case was argued and decided in the Supreme Court.

Roberts said Minear is charge of the court’s budget, has revitalized the Supreme Court Fellows program, and serves as a liaison to other branches of the government. The counselor had to lead the court through many planning issues after the death of Justice Antonin Scalia, as well as, more recently, smoothing new Justice Neil Gorsuch’s arrival at the court.

Helping the chief justice with his Smithsonian responsibilities alone, Roberts said, is practically a full-time job.

And, “a week doesn’t go by when we don’t have a foreign delegation visiting the court, whether it is judicial or otherwise,” Roberts said. “The court really is a mecca for judiciaries around the world.”

(Just last week, several members of the European Court of Justice were in the audience for an oral argument.)

The chief justice concluded with another quip, saying Minear carries out all his duties while maintaining a focus on his main responsibility, “which is making sure that I get the credit.”

Minear is sometimes seen in the courtroom, taking in an oral argument. And TV viewers may have unknowingly caught a glimpse of him, because he typically accompanies the justices at State of the Union addresses and inaugurations (as do the marshal and clerk of the court).

But Minear himself seems fine with staying outside the spotlight. In brief remarks at the reception, he heaped praise on Georgetown’s Supreme Court Institute for helping improve arguments in the court itself. (The institute allows one side or the other in each of the granted cases to conduct moot court arguments before an experienced panel of lawyers.)

Minear lauded the specialty Supreme Court bar, and he drew attention to Roberts as someone whose kindness, decency and sense of humor Minear gets to experience closer than most.

The speakers had described Minear’s love of annual kayaking and camping trips to Alaska with his wife, Robin. (The institute presented him with a stuffed bear and a picture of Minear and Roberts, with a grizzly bear Photoshopped in the middle.)

Minear said that even though he and his wife often set ambitious distance goals for their kayaking trips, “one thing I have learned on these trips is it is always worthwhile to look back at where you came from.”

“That’s what I would encourage all of you to do,” he said. “Look back at how far we have all come along together in the past few decades. Some of you, just the past few years. It’s a great journey.”

The post Roberts, Georgetown Law honor counselor to the chief justice appeared first on SCOTUSblog.

Categories: Research

Petition of the day

Thu, 04/27/2017 - 23:23

The petition of the day is:

Gill v. Whitford 16-1161

Issues: (1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

The post Petition of the day appeared first on SCOTUSblog.

Categories: Research

Asterisk Watch

Thu, 04/27/2017 - 11:59

John Elwood reviews Monday’s relists.

So in the April 7 edition, we trumpeted that that the newly installed Justice Neil Gorsuch would surely participate in his first conference on April 13. Wrong! As indicated in a footnote in the next order list, the new junior justice sat that conference out (as it turns out, getting ready for the April sitting). So of course we confidently predicted in the April 21 edition that Gorsuch was no doubt going to be in full-on note-taking mode at that day’s conference. Less Wrong. When the order list came out the following Monday, there were no asterisks announcing he hadn’t participated in considering the cases as a general matter. But the order list stated repeatedly, for applications, petitions, rehearing petitions, mandamus petitions and habeas corpus petitions, that “Justice Gorsuch took no part in the consideration or decision of this [matter].” If you counted everything up, the only matters Gorsuch discussed with his colleagues at that conference were five cert petitions (including one serial relist that was denied without comment, one serial relist that occasioned two opinions and one capital case that drew a dissent from Justice Stephen Breyer); two rehearing petitions in capital cases that previously were serial relists; and, most unusual of all, a decision granting a movant’s request to “proceed as a veteran” and thus pay no filing fees under Supreme Court Rule 40.

So why should you care about any of that? You shouldn’t. You should be out frolicking in the spring weather, or enjoying the monuments or doing something normal people do. But you’re not. You’re reading a Supreme Court blog. Reflect on your poor life choices for a moment.

But anyway, I’m not suggesting that Gorsuch is a slouch or something. Far from it. The point is that the “shadow” that is left over after we remove all the cases Gorsuch didn’t participate in gives us the rare opportunity to observe the inner workings of the court. My best guess is that we’re seeing the “discuss list” in action. The justices can’t possibly discuss each of the filings they receive (around 8,000 cert petitions per year, to say nothing of habeas and rehearing petitions and various applications). So through the cert pool and other mechanisms, the justices identify a subset of cases that they need to discuss at their regular private conferences, known as the “discuss list.” Any justice can put a case on the discuss list. The cases that are not selected for discussion are presumptively denied, and thus included on the “dead list.” (It’s all explained in great detail at the last hyperlink.) So the likeliest explanation seems to be that most of the cases for the last conference were “deadlisted” through the cert pool and the court’s other regular mechanisms before Gorsuch began participating in the cert process, and he got up to speed on, and discussed, only the matters that were placed on the discuss list for that conference. It’s rare that people are able to lay their hands on copies of past discuss lists, which are not public documents. So it’s significant (if I’m right) to see one in real time. I’m rarely earnest (or even non-idiotic) in this feature, but let me say in all sincerity: This is kind of neat.

OK. The moment of sober reflection has passed. Let’s talk about the cases that the court is apparently going to talk about at Friday’s conference.

To begin with, with the exception of the denials noted above, all of our (many) relists are back again this week. Including, let me hasten to add, the group of tax retroactivity cases. Thank you, tax bar, for the many polite notes I received from you informing me of how truly exciting those cases really are. Sincere apologies if I killed your vibe by calling the cases “dull but important,” but I’ve been a lawyer for 23 years, and I thought that was a compliment.

In addition, this week, the knot of relisted cellphone-data cases we identified last week grew by one, with the addition of Rios v. United States, 16-7314. The case adds what I believe is a new wrinkle to the group, in that it is the first to involve “real-time” cellular-phone location data, rather than historical data. But I suspect that even if a grant is in the offing, this case won’t be the vehicle, at least not yet: The respondent (the United States) waived its right to file a brief in opposition, and the court doesn’t ordinarily grant without at least calling for a response.

That brings us to our other new relist for the week: Patchak v. Zinke, 16-498. That case involves a follow-on to the spellcheck-challenging case Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, which held that the government had waived sovereign immunity so that a suit challenging the Department of the Interior’s action taking a certain plot of land into trust for an Indian tribe could proceed. While summary judgment briefing was underway, Congress enacted a statute that (according to the solicitor general) reaffirmed the trust status of the land, ratified the secretary’s decision to take the land into trust, and (according to the petitioner) did not otherwise amend the underlying substantive or procedural laws. What is undisputed is that the statute directed that any pending or future case “relating to” the property in question “shall be promptly dismissed.” Cases involving so-called “jurisdiction-stripping” statutes are undoubtedly interesting – not Multistate Tax Compact interesting (what is?), but good anyway.

Anyway, the questions presented are (1) whether a statute directing the federal courts to “promptly dismiss[]” a pending lawsuit following substantive determinations by the courts (including the Supreme Court’s determination that the “suit may proceed”) – without amending the underlying substantive or procedural laws – violates the Constitution’s separation of powers principles; and (2) whether a statute that does not amend any generally applicable substantive or procedural laws, but deprives the petitioner of the right to pursue his pending lawsuit, violates the due process clause of the Fifth Amendment.

Surely, Gorsuch is “all-in” for this week’s conference. Tune in next time as I ask, “how wrong can I be before I am right?”

Thanks to Bryan U. Gividen for compiling the cases in this post.

============================================================

Returning Relists

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111

Issue: Whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clause of the First Amendment.

(relisted after the February 24, March 3, March March 17, March 24, March 31, April 13 and April 21 conferences)

 

Dot Foods, Inc. v. Department of Revenue for the State of Washington, 16-308

Issue: Whether, or under what circumstances, imposing additional tax beyond the year preceding the legislative session in which the law was enacted violates due process.

(relisted after the April 13 and April 21 conferences)

 

Deutsche Bank Trust Company Americas v. Robert R. McCormick Foundation, 16-317

Issues: (1) Whether the U.S. Court of Appeals for the 2nd Circuit correctly held—contrary to several other courts of appeals — that the presumption against federal preemption of state law does not apply in the bankruptcy context; (2) whether the 2nd Circuit correctly held — following the U.S. Courts of Appeals for the 3rd, 6th, and 8th Circuits, but contrary to the U.S. Courts of Appeals for the 7th and 11th Circuits — that a fraudulent transfer is exempt from avoidance under 11 U.S.C. § 546(e) when a financial institution acts as a mere conduit for fraudulently transferred property, or whether instead the safe harbor applies only when the financial institution has its own beneficial interest in the transferred property; and (3) whether the 2nd Circuit correctly held — contrary to this court’s decisions holding that it is for Congress, and not the courts, to balance the multiple purposes of the Bankruptcy Code, and that courts must therefore rely first and foremost on the text of the code—that 11 U.S.C. § 546(e) is properly construed to extend far beyond its text and impliedly pre-empt fraudulent-transfer actions brought by private parties (as opposed to the “trustee” expressly mentioned in the statute).

(relisted after the April 13 and April 21 conferences)

 

Carpenter v. United States, 16-402

Issue: Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days is permitted by the Fourth Amendment.

(relisted after the April 13 and April 21 conferences)

 

Sonoco Products Co. v. Michigan Department of Treasury, 16-687

Issues: (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states and requires them to allow taxpayers to elect to use the compact’s equally weighted apportionment formula until the state prospectively withdraws from the compact; (2) whether Michigan’s retroactive repeal of, and withdrawal from, the compact violated the contracts clause; (3) whether Michigan’s retroactive repeal of, and withdrawal from, the compact violated the due process clause; and (4) whether Michigan’s retroactive repeal of, and withdrawal from, the compact violated the commerce clause.

(relisted after the April 13 and April 21 conferences)

 

Skadden, Arps, Slate, Meagher & Flom, LLP v. Michigan Department of Treasury, 16-688

Issues: (1) Whether a state statute that retroactively imposes over $1 billion in increased tax liability on out-of-state businesses for the benefit of in-state businesses violates the dormant commerce clause; (2) whether a state tax law that has a 6 1/2-year period of retroactivity and targets out-of-state businesses for increased tax liability of over $1 billion violates the due process clause; and (3) whether a state’s retroactive repeal of a central provision of the decades-old Multistate Tax Compact violates the contracts clause by imposing over $1 billion in retroactive tax liability on out-of-state taxpayers.

(relisted after the April 13 and April 21 conferences)

 

Gillette Commercial Operations North America & Subsidiaries v. Michigan Department of Treasury, 16-697

Issues: (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states; and (2) whether a state law that imposes retroactive tax liability for a period of almost seven years, in a manner that upsets settled expectations and reasonable reliance interests, violates the due process clause.

(relisted after the April 13 and April 21 conferences)

 

International Business Machines Corp. v. Michigan Department of Treasury, 16-698

Issues: (1) Whether a state, without violating the constitutional bar against the impairment of contracts, can retroactively withdraw from the Multistate Tax Compact so as to divest taxpayers of benefits under that compact for a period of 6 1/2 years before that withdrawal; and (2) whether, consistent with due process, a state can, by statute, change its tax laws retroactively for a period of more than six years, when the change was not promptly instituted and when the change was designed to increase state tax revenues by overriding a Michigan Supreme Court decision determining taxpayer obligations under prior law.

(relisted after the April 13 and April 21 conferences)

 

Goodyear Tire & Rubber Co. v. Michigan Department of Treasury, 16-699

Issues: (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states; and (2) whether a state law that imposes retroactive tax liability for a period of almost seven years, in a manner that upsets settled expectations and reasonable reliance interests, violates the due process clause.

(relisted after the April 13 and April 21 conferences)

 

DIRECTV Group Holdings, LLC v. Michigan Department of Treasury, 16-736

Issues: (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states; and (2) whether a state law that imposes retroactive tax liability for a period of almost seven years, in a manner that upsets settled expectations and reasonable reliance interests, violates the due process clause.

(relisted after the April 13 and April 21 conferences)

 

Merit Management Group, LP v. FTI Consulting, Inc., 16-784

Issue: Whether the safe harbor of Section 546(e) of the Bankruptcy Code prohibits avoidance of a transfer made by or to a financial institution, without regard to whether the institution has a beneficial interest in the property transferred, consistent with decisions from the U.S. Courts of Appeals for the 2nd, 3rd, 6th, 8th, and 10th Circuits, but contrary to the decisions from the U.S. Courts of Appeals for the 7th and 11th Circuits.

(relisted after the April 13 and April 21 conferences)

 

North Carolina v. North Carolina State Conference of the NAACP, 16-833

Issues: (1) Whether a federal court has the authority to reimpose, under Section 2 of the Voting Rights Act, the same “anti-retrogression” preclearance standard invalidated as to Section 5 by Shelby County v. Holder; (2) whether the U.S. Court of Appeals for the 4th Circuit erred in holding that, although the challenged reforms did not adversely affect minority voting, the North Carolina legislature nonetheless intended to deny African Americans the right to vote; and (3) whether statistical racial disparities in the use of voting mechanisms or procedures are relevant to a vote denial claim under Section 2.

(relisted after the April 13 and April 21 conferences)

 

Graham v. United States, 16-6308

Issues: (1) Whether the Fourth Amendment requires law enforcement to obtain a warrant to acquire cell-site location information used to track and reconstruct the location and movements of cell-phone users over extended periods of time; and (2) whether 18 U.S.C. § 2703, which contains both a provision that requires the government to seek a warrant in order to obtain stored location information from cellular service providers, as well as a provision allowing law enforcement to obtain this data on less than probable cause, supports application of the good-faith exception to law enforcement’s acquisition of over seven months of cell-site location information without a warrant.

(relisted after the April 13 and April 21 conferences)

 

Jordan v. United States, 16-6694

Issues: (1) Whether the trial court’s order granting a request by the accused’s codefendant to prohibit the accused from testifying about details that were exculpatory to the accused but prejudicial to his codefendant constituted an impermissible limitation on the accused’s right to testify in his own behalf as set forth in Rock v. Arkansas; and (2) whether the Fourth Amendment requires law enforcement to obtain a warrant to acquire cell-site location information used to track and reconstruct the location and movements of cell-phone users over extended periods of time.

(relisted after the April 13 and April 21 conferences)

 

Caira v. United States, 16-6761

Issue: Whether the Supreme Court should resolve a split of authority among the courts by rejecting the U.S. Court of Appeals for the 7th Circuit’s reasoning in United States v. Caira, which holds that individuals have no reasonable expectation of privacy in information held by a third party.

(relisted after the April 13 and April 21 conferences)

 

New Relists

Patchak v. Zinke, 16-498

Issues: (1) Whether a statute directing the federal courts to “promptly dismiss” a pending lawsuit following substantive determinations by the courts (including the Supreme Court’s determination that the “suit may proceed”) – without amending the underlying substantive or procedural laws – violates the Constitution’s separation of powers principles; and (2) whether a statute that does not amend any generally applicable substantive or procedural laws, but deprives the petitioner of the right to pursue his pending lawsuit, violates the due process clause of the Fifth Amendment.

(relisted after the April 21 conference)

 

Rios v. United States, 16-7314

Issues: (1) Whether law-enforcement officers must secure a warrant to obtain real-time cellular-phone location data; (2) whether courts must instruct juries on the required unanimity regarding the specific categories of acts in RICO conspiracy cases, and likewise whether this court’s conclusions in Richardson v. United States apply in RICO cases; and (3)  whether courts should deliver uniform jury instructions on reasonable doubt and preserve the standard of proof necessary to sustain a criminal conviction.

(relisted after the April 21 conference)

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Categories: Research

Petitions to watch | Conference of April 28

Thu, 04/27/2017 - 10:59

In its conference of April 28, 2017, the court will consider petitions involving issues such as whether a statute which does not amend any generally applicable substantive or procedural laws, but deprives the petitioner of the right to pursue his pending lawsuit, violates the due process clause of the Fifth Amendment; whether statistical racial disparities in the use of voting mechanisms or procedures are relevant to a vote denial claim under Section 2 of the Voting Rights Act; and whether the Fourth Amendment requires law enforcement to obtain a warrant to acquire cell-site location information used to track and reconstruct the location and movements of cell-phone users over extended periods of time.

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission 16-111

Issue: Whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.

Dot Foods, Inc. v. Department of Revenue for the State of Washington 16-308

Issue: Whether, or under what circumstances, imposing additional tax beyond the year preceding the legislative session in which the law was enacted violates due process.

Deutsche Bank Trust Company Americas v. Robert R. McCormick Foundation 16-317

Issues: (1) Whether the U.S. Court of Appeals for the 2nd Circuit correctly held – contrary to several other courts of appeals – that the presumption against federal pre-emption of state law does not apply in the bankruptcy context; (2) whether the 2nd Circuit correctly held – following the U.S. Courts of Appeals for the 3rd, 6th, and 8th Circuits, but contrary to the U.S. Courts of Appeals for the 7th and 11th Circuits – that a fraudulent transfer is exempt from avoidance under 11 U.S.C. § 546(e) when a financial institution acts as a mere conduit for fraudulently transferred property, or whether instead the safe harbor applies only when the financial institution has its own beneficial interest in the transferred property; and (3) whether the 2nd Circuit correctly held – contrary to the Supreme Court’s decisions holding that it is for Congress, and not the courts, to balance the multiple purposes of the Bankruptcy Code, and that courts must therefore rely first and foremost on the text of the code – that 11 U.S.C. § 546(e) is properly construed to extend far beyond its text and impliedly pre-empt fraudulent-transfer actions brought by private parties (as opposed to the “trustee” expressly mentioned in the statute).

Carpenter v. United States 16-402

Issue: Whether the warrantless seizure and search of historical cell-phone records revealing the location and movements of a cell-phone user over the course of 127 days is permitted by the Fourth Amendment.

Patchak v. Zinke 16-498

Issues: (1) Whether a statute directing the federal courts to “promptly dismiss” a pending lawsuit following substantive determinations by the courts (including the Supreme Court’s determination that the “suit may proceed”) – without amending the underlying substantive or procedural laws – violates the Constitution’s separation of powers principles; and (2) whether a statute that does not amend any generally applicable substantive or procedural laws, but deprives the petitioner of the right to pursue his pending lawsuit, violates the due process clause of the Fifth Amendment.

Sonoco Products Co. v. Michigan Department of Treasury 16-687

Issues: (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states and requires them to allow taxpayers to elect to use the compact’s equally weighted apportionment formula until the state prospectively withdraws from the compact; (2) whether Michigan’s retroactive repeal of, and withdrawal from, the compact violated the contracts clause; (3) whether Michigan’s retroactive repeal of, and withdrawal from, the compact violated the due process clause; and (4) whether Michigan’s retroactive repeal of, and withdrawal from, the compact violated the commerce clause.

Skadden, Arps, Slate, Meagher & Flom, LLP v. Michigan Department of Treasury 16-688

Issues: (1) Whether a state statute that retroactively imposes over $1 billion in increased tax liability on out-of-state businesses for the benefit of in-state businesses violates the dormant commerce clause; (2) whether a state tax law that has a 6 1/2-year period of retroactivity and targets out-of-state businesses for increased tax liability of over $1 billion violates the due process clause; and (3) whether a state’s retroactive repeal of a central provision of the decades-old Multistate Tax Compact violates the contracts clause by imposing over $1 billion in retroactive tax liability on out-of-state taxpayers.

Gillette Commercial Operations North America and Subsidiaries v. Michigan Department of Treasury 16-697

Issues: (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states; and (2) whether a state law that imposes retroactive tax liability for a period of almost seven years, in a manner that upsets settled expectations and reasonable reliance interests, violates the due process clause.

International Business Machines Corp. v. Michigan Department of Treasury 16-698

Issues: (1) Whether a state, without violating the constitutional bar against the impairment of contracts, can retroactively withdraw from the Multistate Tax Compact so as to divest taxpayers of benefits under that compact for a period of 6 1/2 years before that withdrawal; and (2) whether, consistent with due process, a state can, by statute, change its tax laws retroactively for a period of more than six years, when the change was not promptly instituted and when the change was designed to increase state tax revenues by overriding a Michigan Supreme Court decision determining taxpayer obligations under prior law.

Goodyear Tire & Rubber Co. v. Michigan Department of Treasury 16-699

Issues: (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states; and (2) whether a state law that imposes retroactive tax liability for a period of almost seven years, in a manner that upsets settled expectations and reasonable reliance interests, violates the due process clause.

DIRECTV Group Holdings, LLC v. Michigan Department of Treasury 16-736

Issues: (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states; and (2) whether a state law that imposes retroactive tax liability for a period of almost seven years, in a manner that upsets settled expectations and reasonable reliance interests, violates the due process clause.

Merit Management Group, LP v. FTI Consulting, Inc. 16-784

Issue: Whether the safe harbor of Section 546(e) of the Bankruptcy Code prohibits avoidance of a transfer made by or to a financial institution, without regard to whether the institution has a beneficial interest in the property transferred, consistent with decisions from the U.S. Courts of Appeals for the 2nd, 3rd, 6th, 8th, and 10th Circuits, but contrary to the decisions from the U.S. Courts of Appeals for the 7th and 11th Circuits.

North Carolina v. North Carolina State Conference of the NAACP 16-833

Issues: (1) Whether a federal court has the authority to reimpose, under Section 2 of the Voting Rights Act, the same “anti-retrogression” preclearance standard invalidated as to Section 5 by Shelby County v. Holder; (2) whether the U.S. Court of Appeals for the 4th Circuit erred in holding that, although the challenged reforms did not adversely affect minority voting, the North Carolina legislature nonetheless intended to deny African Americans the right to vote; and (3) whether statistical racial disparities in the use of voting mechanisms or procedures are relevant to a vote denial claim under Section 2.

Graham v. United States 16-6308

Issues: (1) Whether the Fourth Amendment requires law enforcement to obtain a warrant to acquire cell-site location information used to track and reconstruct the location and movements of cell-phone users over extended periods of time; and (2) whether 18 U.S.C. § 2703, which contains both a provision that requires the government to seek a warrant in order to obtain stored location information from cellular-service providers, as well as a provision allowing law enforcement to obtain this data on less than probable cause, supports application of the good-faith exception to law enforcement’s acquisition of over seven months of cell-site location information without a warrant.

Jordan v. United States 16-6694

Issues: (1) Whether the trial court’s order granting a request by the accused’s codefendant to prohibit the accused from testifying about details that were exculpatory to the accused but prejudicial to his codefendant constituted an impermissible limitation on the accused’s right to testify in his own behalf as set forth in Rock v. Arkansas; and (2) whether the Fourth Amendment requires law enforcement to obtain a warrant to acquire cell-site location information used to track and reconstruct the location and movements of cell-phone users over extended periods of time.

Caira v. United States 16-6761

Issue: Whether the Supreme Court should resolve a split of authority among the courts by rejecting the U.S. Court of Appeals for the 7th Circuit’s reasoning in United States v. Caira, which holds that individuals have no reasonable expectation of privacy in information held by a third party.

Rios v. United States 16-7314

Issues: (1) Whether law-enforcement officers must secure a warrant to obtain real-time cellular-phone location data; (2) whether courts must instruct juries on the required unanimity regarding the specific categories of acts in Racketeer Influenced and Corrupt Organizations Act conspiracy cases, and likewise whether the court’s conclusions in Richardson v. United States apply in RICO cases; and (3) whether courts should deliver uniform jury instructions on reasonable doubt and preserve the standard of proof necessary to sustain a criminal conviction.

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Categories: Research

Thursday round-up

Thu, 04/27/2017 - 07:20

Yesterday the court heard oral argument in Maslenjak v. United States, which asks whether a naturalized U.S. citizen can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement. Amy Howe analyzes the argument for this blog. In The New York Times, Adam Liptak reports that several of the “justices seemed taken aback” by the idea “that the government may revoke the citizenship of Americans who made even trivial misstatements in their naturalization proceedings.” Additional coverage of the argument comes from Jess Bravin in The Wall Street Journal, who reports that “[s]kepticism over the Trump administration’s broad view of government power didn’t translate into sympathy for Divna Maslenjak, the Bosnian Serb immigrant who filed the appeal.” 

On Tuesday, the court heard argument in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, a civil procedure case involving a court’s specific jurisdiction over out-of-state defendants sued by out-of-state plaintiffs. Ronald Mann analyzes the argument for this blog. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.]

Briefly:

  • At the ACS blog, Brian Stull weighs in on Davila v. Davis, a case that was argued on Monday in which the justices will decide whether ineffective assistance of counsel in a state habeas proceeding excuses a defendant’s failure to raise an underlying claim of ineffective assistance of appellate counsel; he draws on statistics and analysis to argue that a ruling for the inmate would not open the floodgates to additional litigation.
  • In a column for The New York Times, Linda Greenhouse discusses Trinity Lutheran Church of Columbia, Inc. v. Comer, a high-profile religion case, arguing that “the controversy in the case longer exists, because the state now agrees with Trinity Lutheran’s position,” and that “the court’s next move” will “tell us something important about the newly reconstituted Roberts court, specifically whether its commitment lies with consensus or with the regained power of five votes.”

Remember, we rely exclusively 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, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

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Categories: Research

Petition of the day

Wed, 04/26/2017 - 23:23

The petition of the day is:

Silva v. Connecticut 16-1012

Issue: Whether, once a suspect has been taken into custody and given the Miranda v. Arizona warning, the suspect’s “selective silence” – that is, the refusal to answer some but not other questions – may be used by the state to establish the suspect’s guilt at trial.

The post Petition of the day appeared first on SCOTUSblog.

Categories: Research

Argument analysis: Concerns about prosecutorial discretion likely to lead to ruling for Bosnian Serb in immigration case

Wed, 04/26/2017 - 21:24

At oral argument today in the U.S. Supreme Court, the justices were not especially sympathetic to the plight of Divna Maslenjak. The 53-year-old came to the United States as a refugee in 2000, fleeing ethnic strife in the former Yugoslavia. Maslenjak became a U.S. citizen seven years later, but last fall she was deported to Serbia. U.S. immigration officials stripped her of her citizenship after she admitted that she had lied about her husband’s service in the Bosnian Serb military, but the justices seem likely to give her another shot at keeping it. Although they may not have been fans of Maslenjak personally, though, the justices were even less enthusiastic about the prospect of ruling for the government, expressing concern that such a ruling would give U.S. officials boundless discretion to take away citizenship based on even very minor lies.

During the first part of the argument, things didn’t necessarily look good for Maslenjak. The government had charged her with violating a federal law that authorizes both a fine and a prison sentence for anyone who “knowingly procures or attempts to procure, contrary to any law, the naturalization of any person.” The government argued that, when Maslenjak applied to become a citizen, she knew that she had lied to immigration officials when seeking to come to the U.S. as a refugee. Maslenjak countered that the government couldn’t take away her citizenship just because she lied; the lie had to be a “material” one – that is, one that would have affected the immigration officials’ decision.

But some justices didn’t regard the distinction between a material and immaterial lie as an easy line to draw. Justice Anthony Kennedy told Christopher Landau, who was representing Maslenjak, that whether a false statement influenced the government’s decision to grant citizenship is sometimes “known only after the fact.” “You can have a statement that everyone thinks is immaterial, it’s subjectively immaterial, but it might have a causal connection at the end of the day.”

Christopher Landau for petitioner (Art Lien)

Justice Samuel Alito echoed this sentiment. He told Landau that requiring the government to show that it would have rejected Maslenjak’s citizenship application if it had known the truth would be an “awfully hard” burden for the government to bear, because “even if somebody says something that has a real potential to affect the naturalization decision, you would still have to go back and show that in this case it actually did make a difference.”

And other justices were skeptical that, even if the court were to adopt the rule that Maslenjak herself urged and require the lies to be material, Maslenjak could prevail. Justice Ruth Bader Ginsburg asked Landau, “Why isn’t this obviously material?” Maslenjak, Ginsburg observed, lied to U.S. government officials about her husband’s activities in Bosnia. “She said he was trying to avoid military conscription when, in fact, he was in the service and in the unit that was committing atrocities. Under what circumstances,” Ginsburg went on, “would that be immaterial?”

Alito seemed to agree. He asked Landau whether the jury in Maslenjak’s case could also hear evidence about her husband’s military service in Srebrenica, the town where Bosnian Serb soldiers killed over 8,000 Muslim men and boys in 1995. If so, Alito suggested, “I don’t know how well you are going to do” in front of the jury. Landau agreed with Alito that Maslenjak would have a “tough row to hoe” on remand, but he argued that his client at least deserved a chance to have the jury decide whether her lies were material.

Chief Justice John Roberts had been largely silent during Landau’s argument. Robert Parker, the assistant to the U.S. solicitor general who argued on behalf of the federal government, quickly learned why. Roberts is generally no friend of criminal defendants, but he has often expressed concern about federal laws that give too much leeway to prosecutors, thereby creating the potential for abuse and uneven enforcement. Today was one of those days.

Roberts noted that one question on the naturalization application form asks whether the applicant has “ever committed, assisted in committing, or attempted to commit a crime or offense for which you were not arrested.” “Some time ago,” Roberts confessed, “outside the statute of limitations, I drove 60 miles per hour in a 55-miles-per-hour zone. I was not arrested.” “Now you say that if I answered that question no, 20 years after I was naturalized as a citizen,” he declared incredulously, “you can knock on my door and say, guess what, you’re not an American citizen after all.”

Chief Justice Roberts questions Assistant to the Solicitor General Robert A. Parker (Art Lien)

Parker tried to offer Roberts some assurances that the hypothetical naturalized scofflaw would have little to fear, but he didn’t make much headway. “So you really are looking for the listing of every time somebody drove over the speed limit,” Roberts concluded.

Justice Sonia Sotomayor piled on, asking Parker whether failure to disclose a childhood nickname – another question on the naturalization application form – could constitute cause to take away someone’s citizenship.

Parker pushed back, reassuring Sotomayor that the government was not interested in childhood nicknames. However, Justice Stephen Breyer retorted that, even if Sotomayor’s example could be distinguished, “that isn’t the point.” The point, Breyer emphasized, is that the questions on naturalization application form are “unbelievably broad.” “To me,” Breyer said, “it’s rather surprising that the government of the United States thinks that Congress is interpreting this statute and wanted it interpreted in a way that would throw into doubt the citizenship of vast percentages of naturalized citizens.”

Perhaps thinking of the difficulties that might follow from requiring a lie to be “material,” Breyer suggested some alternative standards, potentially less onerous for the government, that would still call for a connection between the lie and the naturalization decision. What about requiring that the lie “had a tendency to affect a reasonable immigration officer in his judgment” or “influence the decision”? All those are wrong? he queried.

Breyer later admonished Parker that the government’s interpretation “would raise a pretty serious constitutional question” when it could take away someone’s citizenship “because 40 years before, he did not deliberately put on paper what his nickname was, what his speeding record was 30 years before that, which was, in fact, totally immaterial.”

Roberts added that it might not be a constitutional problem, but “it is certainly a problem of prosecutorial abuse.” Given the wide range of questions on the naturalization form, he observed,  the government’s position would mean that government officials would have “the opportunity to denaturalize anyone they want, because everybody is going to have a situation where they didn’t put in something like that.” “And then the government can decide,” Roberts warned, “we are going to denaturalize you for reasons other than what might appear on your naturalization form, or we’re not.” For Roberts, giving that “extraordinary power, which essentially is unlimited power,” to the government would be “troublesome.”

Kennedy was also clearly uneasy about the government’s interpretation. Your argument, he admonished Parker, is “demeaning” to the “priceless value of citizenship.” Kennedy added, “you are arguing for the government of the United States, talking about what citizenship is and ought to mean.”

Landau tried to capitalize on this unease in his rebuttal, telling the justices that “the questioning today makes it chillingly clear that the government’s position in this case would subject all naturalized Americans to potential denaturalization at the hands of an aggressive prosecutor.” And that, Landau concluded, “is not what Congress intended” and “not what is in the language of the statute.” Even if the justices agree, Maslenjak may not be home free, because the government would almost certainly try to show that her lies would have influenced immigration officials’ decision to grant her citizenship – which, the justices seemed to suggest today, might not be a particularly difficult task. But she does seem likely to at least get what Landau asked for today: “an opportunity to debate” that issue in front of a jury.

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Categories: Research

Argument analysis: Justices cautious about validating California court’s jurisdiction over claims by out-of-state litigants against out-of-state defendants

Wed, 04/26/2017 - 16:35

Tuesday morning’s argument in Bristol-Myers Squibb v. Superior Court of California brought the justices a case at the intersection of class actions and personal jurisdiction. The case involves litigation by several hundred individuals from 33 states (many, but not all of them, from California) for injuries associated with the Bristol-Myers drug Plavix.

The question for the justices is whether California courts have the authority to adjudicate the claims brought against Bristol-Myers by individuals from other states. Although Bristol-Myers has extensive contacts with California, nothing about the claims of these particular plaintiffs involves California: Bristol-Myers did not develop or manufacture the drug in California and there is no reason to think that marketing, promotion or distribution in California was involved in the injuries of the out-of-state plaintiffs. The only way in which their claims relate to California is that the marketing and promotion of the pharmaceutical was conducted on a nationwide basis: The same advertising and distribution arrangements that reached the out-of-state plaintiffs were the ones that reached the in-state plaintiffs (who plainly can sue in California courts).

The justices were fully engaged, with pointed questions for advocates on both sides. The biggest problem for the defendant Bristol-Myers (represented by Neal Katyal) was the prospect of “piecemeal litigation,” a theme Justice Sonia Sotomayor reiterated throughout the argument. Her concern was that a constitutional rule preventing one forum from adjudicating all the claims against a single defendant would cast a shadow over commonplace procedural devices such as the class action and multidistrict litigation.

Neal K. Katyal for petitioner (Art Lien)

Katyal’s answer was that the rules for due process in federal courts and state court are quite different, emphasizing that federal courts, founded on national sovereignty, have an easy justification for nationwide service of process and the like, while state courts, founded on the limited territorial sovereignty of any particular state, have a much less easy time justifying the exercise of jurisdiction for nonlocal claims involving nonresidents. Justice Anthony Kennedy plainly agreed with that point, commenting that “there’s a different set of criteria [that] you apply” when assessing due process concerns at the two levels; “[t]he States are limited in their [ability to exercise] jurisdiction … nationwide, the Federal government isn’t.”

But Sotomayor was far from satisfied. As she stated, “I have no idea how you draw that [state-federal] line.” Sotomayor’s questioning was particularly pointed during the presentation of Rachel Kovner, an assistant to the U.S. solicitor general who argued in support of Bristol-Myers. For example, positing a hypothetical about a foreign defendant, Sotomayor pointed out that “[u]nder your theory, [a] foreign corporation might be sued in the particular State in which an injury occurred. But since it has no home State in the United States, that means that in that situation, there’s no place for plaintiffs to come together and sue that person, correct?” Similarly, returning to her concern about the need for efficient nationwide litigation, she asked Kovner: “If due process says that you can’t hale someone into a court with which they’ve had no contacts, how do you justify the many criminal statutes we have – RICO, CERCLA, there’s a whole bunch of them – that permit the joinder of all of these defendants in one indictment?”

Parallel to that problem was a “so what’s the big deal” theme, put most clearly by Justice Elena Kagan. All agree that Bristol-Myers is subject to suit in California at the behest of the hundreds of California residents who used Plavix, and all agree that Bristol-Myers can hardly be surprised at the location of that litigation given its marketing and distribution in the state. Given those points, Kagan asked, “why is it unfair to glom on Texas claims and New York claims to the California claims, once we already have a mass action which will have multiple jury trials? … [Y]ou already know because this is … nationwide marketing … that you’re subject to jurisdiction in any of the 50 States.”

That’s not to say that it was smooth sailing for Thomas Goldstein (appearing on behalf of the non-resident plaintiffs, trying to preserve the California forum). Several of the justices seemed firmly set against his argument that Bristol-Myers’ contacts with California residents should have any weight in assessing its vulnerability to a California suit brought by nonresidents.

Thomas C. Goldstein for respondents (Art Lien)

So, for example, one group of justices thought his argument failed to give due weight to the states outside California. In Justice Anthony Kennedy’s view, Goldstein was offering “a very patronizing view of federalism. California will tell Ohio ‘Oh, don’t worry, Ohio. We’ll take care of you.’ That’s … not the idea of the Federal system. The Federal system says that States are limited.” In the same vein, Kagan asked what Goldstein had to say “about the interest of the State the Bristol-Myers resides in? In other words, they might have an interest in not having their citizens haled into court against their will in another part of the country.”

More generally, Kagan seemed to find Goldstein’s proposed due process framework inconsistent with her understanding of the cases. She likened his argument to a Rube Goldberg arrangement in which “the claim relates to another claim that relates to contacts with the forum.” In her view, by contrast, the law requires a direct relationship between the plaintiff and the defendant’s contacts with the forum:

I’m missing what the relationship is between an Ohio plaintiff’s claim and the defendant’s contacts with the forum that doesn’t go through another claim…. But I guess what I’ve always thought that our personal jurisdiction cases require is … something like … [t]he plaintiff’s claim relates to or arises out of the defendant’s contacts with the forum State. … And I just want you to tell me how an Ohio plaintiff’s claim arises out of or relates to the defendant’s contacts with California.

Following up on that point with similar skepticism, Justice Stephen Breyer at one point asked “what is it I say in a single sentence that … make[s] it clear to that defendant why he is here?”

In response, Goldstein pointed to the role of McKesson – the California-based distributor through which Bristol-Myers distributed much (though not all) of its Plavix sales. McKesson’s role as a distributor leaves it a defendant alongside Bristol-Myers with respect to many of the out-of-California plaintiffs. Because McKesson is based in California, California plainly has the authority to adjudicate all of the claims of nonresidents against McKesson. Picking up on an earlier interchange between Justice Ruth Bader Ginsburg and Kovner, in which Kovner had acknowledged that under Bristol-Myers’ theory, there might be no other “place where these plaintiffs could sue McKesson as well as Bristol-Myers,” Goldstein suggested that the role of McKesson provided yet another reason why this particular case could be adjudicated in California. That prompted a curt rejoinder from Justice Neil Gorsuch, who found it “a very fact-specific argument.” Gorsuch went on to add that “we took this, I thought, to decide whether we … permit this sliding scale business that California engages in, as a legal matter.” When Goldstein responded that McKesson’s role was integral to the lower court’s analysis and that it would be “very confusing to the lower courts to simply cast it aside,” Gorsuch retorted: “What’s confusing, though, about simply saying ‘here’s the correct test, reverse, remand, go apply the correct test’?”

The most difficult portion of Goldstein’s presentation came when he suggested (echoing Kagan’s point from earlier in the morning) that California jurisdiction is made more palatable by the presence of several hundred indisputably local claims involving local residents. The implicit suggestion of a balancing test involving the number of local residents struck a raw nerve with Chief Justice John Roberts, who interjected that “we’re dealing with a jurisdictional rule, and when we do that, we want the rules to be as simple as possible. … [Y]ou’re articulating a rule that [governs] businesses trying to figure out where to do business and plaintiffs where to sue and courts whether it’s [permissible]. Your rule depends upon some line between [a] handful and … hundreds.”

Then, when Goldstein tried to defend that line, Kagan brusquely cut him off, arguing that Goldstein’s comments to Roberts contradicted his earlier discussion with her:

It seems to me, on your theory, it could be zero California plaintiffs, because here’s what you told me. You told me that the reason that … an Ohio citizen’s claim arises out of the contacts in California is because the contacts in California are really nationwide contacts. And if that’s so, it’s met regardless of whether there are any California plaintiffs or not.

Somewhat surprisingly, it was only near the end of the argument that the discussion turned to the problem of specific and general jurisdiction that occupied so much of the briefing. Responding to the interchange with Roberts and Kagan by acknowledging some tension between his position and some of the court’s recent cases, Goldstein suggested that it would make sense for the court to adjust the details of its rules for specific jurisdiction (a state’s power to hear a case based on its connection to that particular dispute, the power at issue here) to accommodate its marked narrowing in Daimler AG v. Bauman of rules for general jurisdiction (a state’s power to hear a case based on its connection to the defendant). Raising that topic got the attention of Justice Ruth Bader Ginsburg (the author of the Daimler opinion), who pointedly remarked that “[w]hat you’re suggesting is that the Court was wrong in … Daimler” and added that this case could be viewed as “an attempt to reintroduce general jurisdiction, which was lost in Daimler, by the back door.” As noted here, the discussion of Daimler continued during the next hour’s argument in BNSF Railway Co. v. Tyrrell, in which several justices seemed set on reaffirming or extending Daimler. To the extent that same intuition carries over to this case, it poses a challenging hurdle for the plaintiffs.

At the end of the day, the argument makes it clear that the justices will tread cautiously here, recognizing the broad systemic implications of pronouncements about the constitutional limits on judicial authority. The combination of caution with the intricate framework of the relevant cases suggests that we will be waiting several weeks for a resolution in this one.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case. The author of this post, however, is not affiliated with the firm.]

The post Argument analysis: Justices cautious about validating California court’s jurisdiction over claims by out-of-state litigants against out-of-state defendants appeared first on SCOTUSblog.

Categories: Research

Argument transcripts

Wed, 04/26/2017 - 14:49

The transcript in Sandoz Inc. v. Amgen Inc. is here; the transcript in Maslenjak v. United States is here.

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Categories: Research

Wednesday round-up

Wed, 04/26/2017 - 07:17

Today the court hears oral argument in two cases. The first is Amgen Inc. v. Sandoz Inc. (consolidated with Sandoz Inc. v. Amgen Inc.), a complex case involving rules for the licensing of biosimilars. John Duffy previewed the case for this blog. At Cornell University Law School’s Legal Information Institute, Gerard Salvatore also provides a preview. At Written Description, Katie Mladinich surveys the case, noting that the Federal Circuit quoted Churchill “in describing the statute as ‘a riddle wrapped in a mystery inside an enigma,’” and that the “Supreme Court is now faced with unraveling this riddle.” The second argument today of the day is in Maslenjak v. United States, which asks whether a naturalized U.S. citizen can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement. Amy Howe had this blog’s preview.  Krsna Avila and Nicholas Halliburton preview the case for Cornell.  

Yesterday the court heard oral argument in BNSF Railway Co. v. Tyrrell, in which the justices considered the contours of personal jurisdiction for lawsuits brought under the Federal Employers’ Liability Act. Amy Howe analyzes the argument for this blog. In Supreme Court Brief (subscription required), Tony Mauro reports that the argument “appeared inconclusive,” yielding “no clear sign that the high court would clarify the jumbled rules of jurisdiction.”

There was an unusual soundtrack to yesterday’s first argument: the chime of a cell phone, which turned out to belong to Justice Stephen Breyer. Mark Walsh reports on the unaccustomed interruption for this blog. Additional coverage comes from Robert Barnes in The Washington Post, who notes that “[e]lectronic devices are strictly forbidden in the courtroom, even for the lawyers who are arguing cases.” In The National Law Journal (subscription or registration required), Tony Mauro reports that the “78-year-old justice was clearly upset with himself, and later was seen holding his head and shaking it.”

Yesterday the justices issued a unanimous opinion in Lewis v. Clarke, holding that a tribe’s sovereign immunity does not extend to a tribal employee sued in his individual capacity. Todd Henderson analyzes the opinion for this blog. At Stanford Law School’s Legal Aggregate blog, Gregory Ablavsky observes that “the decision treats tribal sovereign immunity seriously and legitimately—a small but important accomplishment, given that in previous opinions the Court upheld precedent only while holding its nose, denigrating tribal sovereign immunity as an ‘accident’ and expressing ‘a fair bit of sympathy’ for critiques.”

On Monday, the court heard argument in Davila v. Davis, in which the justices will decide whether ineffective assistance of counsel in a state habeas proceeding excuses a defendant’s failure to raise an underlying claim of ineffective assistance of appellate counsel. Steve Vladeck analyzes the argument for this blog.

At PrawfsBlawg, Howard Wasserman discusses Justice Sonia Sotomayor’s dissent from the court’s decision on Monday to deny review of a lower court’s ruling granting qualified immunity on summary judgment to a police officer who was sued for shooting a suspect, observing that the dissent “highlights the Court’s failure to intervene in this and similar cases in which summary judgment is (erroneously) granted against § 1983 plaintiffs, while frequently summarily reversing decisions denying summary judgment in favor of officers.” At Vox, German Lopez notes that, in Sotomayor’s view, a summary judgment ruling like this one is “one of the biases in the legal system that may let cops get away with excessive use of force — by slanting the system in favor of the police officer.”

Briefly:

  • At Crime and Consequences, Kent Scheidegger discusses Monday’s argument in McWilliams v. Dunn, in which the justices will decide whether an Arkansas defendant in a capital case whose mental health was at issue was entitled to assistance from a psychiatrist independent of the prosecution, concluding that “the Supreme Court may well decide that the Ake precedent is ambiguous, the Oklahoma court’s decision is not an unreasonable application of it, and that is all that Congress has authorized a federal habeas corpus court to decide.”
  • At the National Council of State Legislatures’ blog, Lisa Soronen looks at Nelson v. Colorado, in which the justices held last week that a state cannot require a defendant whose conviction is invalidated to prove actual innocence before recovering fines and fees imposed as a consequence of the conviction; she notes that this “is one of those rare cases where the Supreme Court invalidates a state law but no other states have anything identical or similar.”
  • A Heritage Foundation podcast features a discussion of Justice Neil Gorsuch’s arrival on the Supreme Court bench.
  • At Empirical SCOTUS, Adam Feldman examines data suggesting that the “recent consistency of Justice Thomas’ dissents harkens back to one of history’s strongest proponents (and one of the most regular writers) of the dissenting opinion, Justice William Orville Douglas.”

Remember, we rely exclusively 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, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

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Categories: Research

Petition of the day

Tue, 04/25/2017 - 23:23

The petition of the day is:

Aksu v. California 16-1009

Issue: What is the standard by which appellate courts review a trial court’s holding that a defendant voluntarily consented to a warrantless search for Fourth Amendment purposes.

The post Petition of the day appeared first on SCOTUSblog.

Categories: Research

Opinion analysis: Justices decline to extend sovereign immunity to tribe employees

Tue, 04/25/2017 - 22:20

Today the Supreme Court held that the sovereign immunity of Indian tribes does not extend to suits against tribal employees when the employee, instead of the tribe, is the “real party in interest.”

Lewis v. Clarke involved a run-of-the-mill car accident: The plaintiffs, Brian and Michelle Lewis, citizens of Connecticut, were driving on an interstate highway outside the boundaries of the Mohegan Reservation when they were rear-ended by the defendant, William Clarke, also a citizen of Connecticut. Clarke was an employee of the Mohegan Tribe, however, and the accident occurred while he was driving customers to the tribe’s casino.

Justice Sotomayor with opinion of the court (Art Lien)

The Lewises sued Clarke in Connecticut state court for damages resulting from the accident. Clarke moved to dismiss the lawsuit, arguing that he was cloaked in the tribe’s sovereign immunity because he was acting as a tribal employee or, in the alternative, because the tribe had agreed to indemnify him for any damages arising from his official acts in furtherance of the tribe’s interests.

The Connecticut trial court dismissed the suit on the ground that the remedy the plaintiffs sought — money damages from Clarke — did not, as today’s opinion put it, “affect the Tribe’s ability to govern itself independently.” The Supreme Court of Connecticut reversed, holding that permitting a plaintiff to overcome tribal immunity simply by styling his complaint as against the defendant in an individual capacity would render tribal immunity a nullity.

A unanimous Supreme Court reversed, in an opinion written by Justice Sonia Sotomayor. The court concluded that there is a readily discernible difference between suits in an individual capacity and those in an official capacity, only the latter of which are subject to sovereign immunity. Drawing on familiar actions, like a Bivens action or a Section 1983 suit under federal law, the court reasoned that a relatively bright line can be drawn between suits against officials acting in their official capacities and officials acting as individuals. For instance, the court noted that in the former case, if the official being sued were replaced, perhaps because of a change in administration, the suit would proceed against the new office-holder, while in the latter case, the defendant would remain the same. Addressing Clarke’s second contention, the court concluded that “[t]he Tribe’s indemnification provision does not somehow convert the suit against Clarke into a suit against the sovereign.”

In reaching this straightforward but somewhat arbitrary conclusion, the court was essentially leveling the playing field between states and tribes. All agree that if Clarke were an employee of Connecticut instead of the Mohegan tribe, the case would be an individual one, and there would be no sovereign immunity. The decision in this case stands for the proposition that tribal immunity is no greater than state immunity. That seems right, both as a matter of history and logic.

Although the details of state and tribal sovereignty differ somewhat here and there, depending on the area of law or statute in question, there is no reason that sovereign immunity rules should differ. Whatever the basis for these rules, there is nothing about tribal sovereignty that makes them cut one way or the other. Under the landmark ruling in Montana v. United States, the boundary of core tribal jurisdiction does not extend “beyond what is necessary to protect tribal self-government.” As noted above, the lower court, whose opinion was effectively reinstated by the Supreme Court’s holding, found that nothing in this case implicated the ability of the tribe to govern itself.

Justice Clarence Thomas and Justice Ruth Bader Ginsburg concurred separately, although their reasoning was similar. Both wanted the case decided on simpler grounds — Thomas on the ground that the conduct was off-reservation and of a commercial nature, and this defeated any immunity claims, and Ginsburg on the ground that the conduct was off-reservation and involved a non-tribal member.

In essence, both wanted the court to revisit its 1988 decision in Kiowa Tribe v. Manufacturing Technologies and its 2014 decision in Michigan v. Bay Mills Indian Community (in which both Thomas and Ginsburg dissented). These cases hold that tribal immunity can extend beyond reservation land, even in commercial cases.

The court declined to reconsider these precedents or other core issues of the scope of tribal sovereignty (such as whether there should be any separate tribal sovereignty). Although recent opinions have teed up these questions, it is possible that the court viewed a simple car accident between two non-tribal members occurring off the reservation as a poor vehicle (pun intended) for making such a sweeping change to tribal law.

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Categories: Research

Argument transcripts

Tue, 04/25/2017 - 14:56
Categories: Research

Argument analysis: Justices likely to hand victory to railroad in jurisdictional dispute

Tue, 04/25/2017 - 14:27

The Supreme Court seemed ready to hand a victory to railroad company BNSF in a lawsuit brought by two of the company’s injured workers. A solid majority of the justices appeared unconvinced that the Federal Employers’ Liability Act, a federal law that allows railroad workers to sue their employers for injuries that occur on the job, allows the workers to sue the company – which is incorporated in Delaware and has its principal place of business in Texas – in Montana, even though neither worker lived in Montana or was injured there.

Arguing for BNSF, attorney Andrew Tulumello told the justices that the Montana state court’s decision allowing the case against the railroad to go forward was flatly wrong. Under the Supreme Court’s 2014 decision in Daimler AG v. Bauman, he contended, the Montana courts could not have jurisdiction over the injured workers’ lawsuits because the railroad was not “at home” in Montana.

Andrew S. Tulumello for petitioner (Art Lien)

Justices Sonia Sotomayor and Ruth Bader Ginsburg challenged that assertion. Sotomayor asked Tulumello whether BNSF had registered its business in Montana. When Tulumello responded that it had, Sotomayor suggested that registration in Montana might “change things.” If she established residency in several different states, she observed, she could be sued in those states. Alluding to the court’s campaign-finance jurisprudence, she asked pointedly, “If you are going to treat a corporation like a person, which we seem to be doing,” why wouldn’t a corporation be subject to suit in the states where it is registered? Ginsburg echoed that idea, telling Tulumello that by registering in Montana, the company had effectively consented to jurisdiction in the state.

Tulumello pushed back, countering that the text of the Montana law that requires BNSF to register specifically provides that personal jurisdiction over companies cannot be based solely on registration in the state. And any traction that the two justices might have temporarily gained from their line of questions seemed to vanish when Chief Justice John Roberts asked Tulumello whether that issue was actually even before the Supreme Court. No, Tulumello responded.

Justice Samuel Alito also posed a fairly friendly question, asking Tulumello to address assertions by the workers’ supporters that a ruling for the railroad would “create chaos” in the court system. Tulumello assured Alito that the result would actually be the opposite, likening the current system to the “wild west.”

After a relatively easy time at the lectern, Tulumello sat down early, using only 11 of his 20 minutes. He was followed by Nicole Saharsky, the assistant to the U.S. solicitor general representing the federal government, which filed a brief supporting BNSF. The justices allowed Saharsky to speak at some length, and she too sat down early.

Julie Murray represented plaintiffs Robert Nelson, who contends that he suffered a serious knee injury while working as a fuel-truck driver, and Kelli Tyrrell, who alleges that her husband Brent died of cancer that he contracted as a result of his exposure to chemicals while working for BNSF. Murray emphasized the long history of injured railroad workers being able to sue under FELA. When it enacted FELA, she stressed, Congress expressly intended that workers would be able to bring these kinds of lawsuits, even when neither the workers nor the injuries had any connection to the state where they were filed. This is so, she explained, because Congress recognized that railroads operate differently from many other industries – for example, she noted, it is commonplace that railroad workers will never work in their home states.

Julie A. Murray for respondents (Art Lien)

Roberts was skeptical, reminding Murray that BNSF operates in over two dozen states. Does this mean, he asked Murray, that the railroad can be sued in one of those states even if the injury occurs elsewhere? Yes, Murray responded, that is what Congress intended.

Roberts wondered aloud whether the decision to sue BNSF in Montana might be related to the perception that Montana would be a more desirable forum in which to sue a large corporation. Murray explained that, because of the large volume of FELA cases filed in Montana, the state’s judges know the issues “like the back of their hand” – an answer that Roberts characterized as “a little circular.”

Alito seemed to agree with Roberts, telling Murray that he could understand why Congress would want an injured railroad worker to be able to sue in the state where the injury occurred, in the state where the worker lives, and in the state where the company is headquartered. But why, he queried somewhat rhetorically, should a worker be able to sue anywhere?

In more troubling news for Tyrrell and Nelson, some of the court’s more liberal justices also appeared dubious. Ginsburg noted that the language in the FELA provision on which the plaintiffs rely is found in “200-odd” other laws dealing with venue – that is, the place where lawsuits may be filed. It sounds like a venue provision, Ginsburg declared.

Murray added that even if the justices were to decide that FELA does not confer jurisdiction over BNSF, the Montana courts would still have jurisdiction over BNSF because of the company’s contacts with Montana. The railroad has a “gigantic footprint” in the state, she emphasized, and BNSF and its predecessor have been in Montana since before it even joined the Union.

This discussion led to one of the lighter moments of the morning. Agreeing that a railroad would have a “large physical plant” in a state, Roberts asked Murray whether other industries, like the trucking industry, could also be “at home” under this theory. How, he inquired, do we make that decision?

Murray told Roberts that her clients’ argument was limited to railroads, which she characterized as “unique” because of their reliance on fixed tracks. Trucking companies, she seemed to suggest, would be different because trucks could use roads to travel all over the state.

Roberts was unconvinced. No, he retorted, trucks would all generally use the same interstate highways to traverse the state. “They’ll take I-95,” he said, before hesitating. “What is it, I-90?”

The court’s newest justice, who hails from Colorado, chimed in. “It’s I-80, across Montana.”

Roberts then quipped, “It’s that geographic diversity.”

A few minutes passed, during which some of the justices apparently requested – and then passed around – atlases from the justices’ library. After some animated conversations with his neighbors on the bench, Sotomayor and Justice Stephen Breyer, Gorsuch interrupted Murray to apologize for an error. “It’s I-90 across Montana, and I-80 across Wyoming.”

Breyer then had a question that did not seem to portend well for Tyrrell and Nelson either. He asserted that, in the court’s earlier decision in Daimler, the company had an extensive operation in California, where the plaintiffs sought unsuccessfully to sue it. You’re “making a valiant effort,” he told Murray, “but I don’t really see a difference.”

Tulumello used only a few minutes of his remaining time when he returned to the lectern for his rebuttal. Due process, he contended, does not depend on what line of business you are in. Based on today’s argument, a clear majority of the court seems to agree with him.

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Categories: Research

A “view” from the courtroom: Call waiting

Tue, 04/25/2017 - 13:31

It’s the penultimate day of arguments in this modest term, and after issuing its opinion in Lewis v. Clarke (about tribal sovereign immunity) and conducting bar admissions, the court is just a few minutes into the oral argument in Bristol-Myers Squibb Co. v. Superior Court of California (about personal jurisdiction).

And then … a cellphone ringtone goes off. The Supreme Court police department has been especially vigilant in keeping visitors from bringing such devices into the courtroom since a couple of high-profile protests involving hidden pen cameras in recent years.

But cellphones do occasionally end up in the ornate courtroom and announce themselves. Today, the culprit is a 23-year veteran of the bench. Justice Stephen Breyer looks a bit sheepish as he maneuvers to silence his phone’s lively chime.

Breyer’s cell phone goes off during arguments (Art Lien)

 Justices Samuel Alito and Elena Kagan chuckle. Breyer looks to Chief Justice John Roberts with an apologetic expression before sharing a laugh with Justice Clarence Thomas. Some of my colleagues think they see Breyer handing the phone to one of the court aides who sit behind the justices.

Neal Katyal, the former acting U.S. solicitor general who is arguing on behalf of Bristol-Myers Squibb at that moment, appears unflustered by the interruption.

(Later in the argument, there is another short cellphone disturbance, a “pinging” sound. It’s not clear who is responsible for that one.)

I would like to be able to say that after the argument, reporters retired to the press room and began discussing the finer points of personal jurisdiction. But all we can really talk about for several minutes is Justice Breyer’s cellphone.

First, who would be calling him at 10:13 a.m. on an argument day?

Supreme Court Public Information Officer Kathleen Arberg says she will check with the justice’s chambers to confirm our eyewitness recollections. But Breyer is still on the bench for the second case, she reminds us. Well, couldn’t she just call him there and ask? one smart-aleck reporter queries. (OK, it was this smart aleck.)

A little later, Arberg confirms that it was indeed Breyer whose cellphone went off. It was “an oversight” that he brought the phone into the courtroom, and it was not something he normally does, she says. But it did liven up the first of two civil procedure arguments on a rainy day.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in Bristol-Myers. The author of this post, however, is not affiliated with the firm.]

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Categories: Research

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