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Argument analysis: Spinning heads and swimming constitutional rights in debates over an accrual rule

McDonough v. Smith, argued Wednesday, saw justices and attorneys repeating metaphors about heads spinning and constitutional rights swimming. The justices seemed inclined to rule for the petitioner (supported by the United States) that his claim was timely and that the limitations period on a civil action should not begin until favorable termination of criminal proceedings. But the likely scope of the ruling remains uncertain. Respondent Youel Smith prosecuted petitioner Edward McDonough, a form...
Tags: Featured, Supreme Court, Law, United States, Smith, Ruth Bader Ginsburg, Wall, Sonia Sotomayor, John Roberts, Roberts, Ginsburg, Elena Kagan, Kagan, McDonough, Samuel Alito, Kavanaugh


Argument analysis: Justices worry about extending California wage-and-hours laws to offshore drilling platforms

On Tuesday, the Supreme Court heard oral argument in Parker Drilling Management Service, Ltd. v. Newton, a case about whether workers employed on drilling platforms more than three miles off the coast of California are entitled to the protections of California’s more worker-friendly wage-and-hours law or whether a federal statute, the Outer Continental Shelf Lands Act, limits them to the benefits required by the Fair Labor Standards Act. The justices seemed intrigued (and occasionally frustrated...
Tags: Featured, Supreme Court, Law, Congress, California, United States, Ruth Bader Ginsburg, Newton, Paul Clement, Michael, Sonia Sotomayor, John Roberts, 9th Circuit, Interior, Roberts, Ginsburg


Argument analysis: Justices debate time travel in assessing liability for inadequate disclosures about tender offers

The argument yesterday in Emulex Corp. v. Varjabedian presented the justices with an odd interpretive problem about revisions to the securities laws made in the 1960s to govern tender offers. At that time, federal courts commonly read statutes as “implying” private rights of action, permitting private parties to file suit to enforce the securities laws whenever it seemed a useful way to ensure compliance. So when Congress wrote the provision proscribing misleading information in disclosures abou...
Tags: Featured, Supreme Court, Law, Congress, Ruth Bader Ginsburg, Sonia Sotomayor, John Roberts, Roberts, Ginsburg, Stephen Breyer, Elena Kagan, Kagan, Goldstein Russell, Merits Cases, Emulex Corp, Brett Kavanaugh


Fooey on the Draft

Iancu v. Brunetti (Supreme Court 2019) [Oral Arg Transcript] In this case, the Federal Circuit held that the prohibition on registering “immoral” or “scandalous” marks is a facial violation of a registrant’s First Amendment free speech rights.  Here, Brunetti is seeking to register the mark “FUCT,” which the solicitor identified as a close homonym of “the paradigmatic word of profanity in our language.” Oral arguments were held on April 15 before the nine Supreme Court justices. In the case bef...
Tags: Supreme Court, Law, California, Uspto, Patent, Tam, Cohen, Coast Guard, Roberts, Ginsburg, Alito, PTO, Sotomayor, Breyer, Sommer, Kavanaugh


Empirical SCOTUS: Is Kavanaugh as conservative as expected?

On Monday, April 1, 2019, the Supreme Court decided the case Bucklew v. Precythe, with the five conservative justices in the majority and the four liberals in dissent. To some, including legal scholar and CNN analyst Steve Vladeck, this ruling ushered in a new conservative court without the moderating anchor of Justice Anthony Kennedy. Going even further, Slate’s Mark Joseph Stern referred to the decision as “beyond appalling,” while Think Progress’ Ian Millhiser described it as “the most bloodt...
Tags: Supreme Court, Law, Cnn, United States, Davis, Nielsen, Smith, Donald Trump, Ruth Bader Ginsburg, Delaware, Kennedy, Sanders, Thomas, Sonia Sotomayor, Antonin Scalia, John Roberts


Student SCOTUS preview part three: mapping out likely votes after oral argument in US v. Haymond

I noted here back in 2017 an interesting opinion in US v. Haymond where a Tenth Circuit panel declared unconstitutional the procedures used for revocation of a sex offender's supervised release.  The Supreme Court also found the case interesting because, as reported here, the Justices in 2018 accepted the petition for certiorari filed by the federal government.  The SCOTUSblog page on Haymond has links to all the briefing. As reported in this prior post, I have a great student, Jim McGibbon, who...
Tags: Supreme Court, Law, Washington, Oregon, Court, US, United States, New Jersey, Thomas, Jim, Ginsburg, Blakely, Sotomayor, Kagan, Kavanaugh, Amy Howe


Argument analysis: Justices navigating between different precedential paths on punitive damages for maritime personal injury

The Supreme Court heard oral argument yesterday in The Dutra Group v. Batterton, a maritime case that asks whether a Jones Act seaman can recover punitive damages in a personal-injury suit based on the unseaworthiness of a vessel on which he was working. Seven of the justices questioned one or both attorneys but, with a few exceptions, did not clearly signal a likely inclination. The argument did suggest that some division is likely. Not only does the issue involve a split among various circuit ...
Tags: Featured, Supreme Court, Law, Congress, Oregon, Ruth Bader Ginsburg, Miles, Sonia Sotomayor, Antonin Scalia, John Roberts, Roberts, Townsend, Ginsburg, Waxman, Alito, Sotomayor


Opinion analysis: Washington state motor-fuel tax violates Yakama Treaty

With a three-justice plurality opinion, a two-justice concurrence in the judgment and two dissents, Washington State Department of Licensing v. Cougar Den appears unusually fractured at first glance. But the disagreements among seven of the justices are relatively small, turning largely on whether and why Washington’s motor-fuel tax really burdens the Yakama treaty right to travel. Only the dissent by Justice Brett Kavanaugh, joined by Justice Clarence Thomas, indicates a fundamental disagreemen...
Tags: Featured, Supreme Court, Law, Washington, United States, Ruth Bader Ginsburg, Thomas, State, Sonia Sotomayor, John Roberts, Roberts, Ginsburg, Stephen Breyer, Breyer, Elena Kagan, Clarence Thomas


Argument analysis: Justices grapple with meaning of final decision made after a hearing

In Monday’s oral argument in Smith v. Berryhill, the justices confronted a split among the courts of appeals as to whether an SSI disability claimant can obtain judicial review of the Social Security Appeals Council’s dismissal of his appeal as untimely under 42 U.S.C. sec. 405(g). Section 405(g) provides that “[a]ny individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, … may obtain review of such decision by a civil action.” ...
Tags: Featured, Supreme Court, Law, Congress, Social Security, Commission, Smith, Social Security Administration, Ruth Bader Ginsburg, Sonia Sotomayor, John Roberts, Roberts, Ginsburg, U S Court of Appeals, Sotomayor, Kimberly


Case study on the Ginsburg conspiracy theories in action

#WheresRuth. Even as the answer – working from home while recovering from cancer surgery – was covered by journalists and confirmed by the Supreme Court itself, this hashtag and similar ones populated Twitter in January and February. False allegations about Justice Ruth Bader Ginsburg’s status ranged from standard political rumors (e.g., that she planned to announce her retirement soon) to massive conspiracy theories (e.g., that she was in a medically induced coma or that her death was being hid...
Tags: Post, Featured, Nbc, Supreme Court, Law, Washington Post, Washington, Fox News, Ruth Bader Ginsburg, Collins, ABA Journal, Woods, James Woods, Miller, Ruth, Ginsberg


SCOTUS Map: February and March 2019

At a February 1 Hastings Law Journal symposium honoring retired Justice Anthony Kennedy’s 43 years as a federal judge, Kennedy bemoaned what he sees as the lack of “rational, enlightening dialogue” and the dissipation of the “social framework of decency.” Of the Supreme Court’s two newest justices (and former Kennedy clerks), Justices Neil Gorsuch and Brett Kavanaugh, Kennedy had only ringing endorsements: “[Gorsuch is] going to be a wonderful judge, just like Brett.” The San Francisco Chronic...
Tags: New York, Featured, Supreme Court, Law, Congress, California, Ruth Bader Ginsburg, Kennedy, Sonia Sotomayor, Brown, John Roberts, Board of Education, Brett, Roberts, San Francisco Chronicle, Ginsburg


Supreme Court Requires Completed Copyright Registration Before Filing Suit–Fourth Estate Public Benefit v. Wall-Street (Guest Blog Post)

Guest Blog Post by Tyler Ochoa On March 4, 2019, the U.S. Supreme Court decided Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, No. 17-571, 139 S.Ct. ____, 2019 U.S. LEXIS 1730.  The case involved the interpretation of section 411(a) of the Copyright Act, which provides:  “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.”  The questi...
Tags: Supreme Court, Law, Congress, Court, Copyright, United States, Library Of Congress, Oracle, Slip, Beard, Copyright Office, U S Supreme Court, Roberts, Congressional, Ginsburg, Ninth Circuit


Opinion analysis: The doctrine that dare not speak its name

A laid-off railroad worker goes head to head with the world’s fourth-largest publicly traded corporation over a $3,765 payment that — the worker says — is owed to him because the corporation’s negligence caused him to fall through a snow-covered drainage grate and suffer a severe knee injury. The Trump administration backs the corporation, while a trial lawyers’ group with close ties to the Democratic Party comes in to support the worker. The Supreme Court sides with the corporation, but only ov...
Tags: Featured, Supreme Court, Law, Congress, United States, Social Security, Wisconsin, Berkshire Hathaway, Warren Buffett, Ruth Bader Ginsburg, Chevron, Justice Department, Irs, National Labor Relations Board, Bnsf, Trump


A “view” from the courtroom: Third Mondays

The title above is not a new Supreme Court podcast, to replace the recently shelved “First Mondays” (which we hold out hope will be unshelved someday). No, it refers to days like today, when the court meets on a Monday after hearing two weeks of arguments to issue orders and opinions. Such days often get a bit less attention than argument days, or opinion days later in the term when bigger decisions tend to be announced. But they have their charms. Today we will have three opinions from the benc...
Tags: England, Featured, Supreme Court, Law, Congress, Washington, Nasa, United States, Cbs, Mars, Ruth Bader Ginsburg, Oracle, Mother Teresa, Copyright Office, John Roberts, Sally


Opinion analysis: A copyright owner can’t sue for infringement before the Register has processed its copyright registration application

In Fourth Estate Public Benefit Corporation v. Wall-Street.com, a unanimous court held today that although the copyright statute confers exclusive rights upon the author of a work as soon as the work is created, a copyright owner may not file an infringement suit until the Register of Copyrights has acted on the owner’s application to register the copyright in the work. The result turned on the meaning of the phrase “registration of the copyright claim has been made” in Section 411(a) of the sta...
Tags: Featured, Supreme Court, Law, Congress, Wall Street, United States, Ruth Bader Ginsburg, Copyright Office, Ginsburg, U S Court of Appeals, Fourth Estate, Merits Cases, Courts of Appeals, Register, Fourth Estate Public Benefit Corporation, Moreover Congress


Friday round-up

At Take Care, Nelson Tebbe and Micah Schwartzman worry that “some liberal justices might refuse to call out th[e] egregious violation of Establishment Clause principles in The American Legion v. American Humanist Association, a challenge to a World War I memorial shaped like a cross on public property, “[i]n an effort to gain concessions or to limit the possible damage that this case might do to decades of Establishment Clause precedent.” Additional commentary comes from Andrew Seidel at Rewire....
Tags: Justice, Supreme Court, Law, Congress, Oregon, Politico, Court, Alabama, Los Angeles, Bloomberg, United States, Idaho, Ford, Liberty, Ruth Bader Ginsburg, Madison


Argument analysis: Peace cross appears safe, if not stable

For nearly a century, a 40-foot-tall stone and concrete cross has stood on a traffic median in the Washington, D.C., suburbs, just a few miles from the Supreme Court. But seven years ago, a group of local residents filed a lawsuit seeking to have the cross removed. They argue that the presence of the cross on public land violates the Constitution, which bars the government from establishing an official religion and favoring one religion over another. The state of Maryland, which owns and maintai...
Tags: New York, Featured, Maryland, Supreme Court, Greece, Law, Washington, David, United States, Wall, Lemon, Gettysburg, Miller, American Legion, George Washington, Sonia Sotomayor


Argument analysis: Court poised to rule for challenger in dispute over constitutionality of sex-offender law

This morning the Supreme Court heard oral argument in a dispute over the constitutionality of a federal law that requires convicted sex offenders to return to prison for at least five years – and possibly for the rest of their lives – if a judge finds that they have committed certain crimes. The defendant in the case, an Oklahoma man who served time for possessing child pornography and was then sent back to prison after he violated the terms of his supervised release, argues that the law violate...
Tags: Featured, Supreme Court, Law, Congress, United States, Oklahoma, Ruth Bader Ginsburg, Sonia Sotomayor, John Roberts, Howe, Ginsburg, Sotomayor, Elena Kagan, Kagan, Samuel Alito, Kavanaugh


Tuesday round-up

This morning the justices will hear oral argument in two criminal cases, both involving federal supervised release. First up is United States v. Haymond, a constitutional challenge to a statutory provision that requires judges to impose additional prison time on sex offenders who violate the terms of their supervised release. Amy Howe had this blog’s preview, which first appeared at Howe on the Court. Matt Farnum and Trevor O’Bryan preview the case for Cornell Law School’s Legal Information Inst...
Tags: Supreme Court, Law, California, Washington Post, Ap, United States, New York Times, Fox News, Jackson, Ruth Bader Ginsburg, Wall Street Journal, Cornell, Hyatt, American Legion, Round-up, National Review


Argument analysis: No clear resolution on whether First Amendment applies to public-access channels

The Supreme Court heard oral argument today in a case involving whether a private nonprofit corporation that runs a public-access TV channel is a “state actor,” who can be sued for violations of the First Amendment. After roughly an hour of debate, there was no clear winner in the case: The justices who spoke appeared to be divided, and two justices – Clarence Thomas and Neil Gorsuch – asked no questions at all. The events leading up to today’s case began back in 2012, when DeeDee Halleck, an aw...
Tags: Facebook, New York, Featured, Supreme Court, Law, Youtube, Manhattan, Ruth Bader Ginsburg, Sonia Sotomayor, John Roberts, Hughes, Howe, Ginsburg, U S Court of Appeals, Stephen Breyer, Breyer


Empirical SCOTUS: Amid record-breaking consensus, the justices’ divisions still run deep

How divided is the current Supreme Court? On the surface the answer appears mixed. Much conversation over the past several years surrounding the court’s decisions has had to do with partisan and ideological divisions among the justices. These divisions and the court’s rightward shift appear a reality as of the court’s conservative wing in ideologically divided 5-4 decisions from last term. These divisions do not necessarily define the court, however. Along with clear divisions, the Supreme Cou...
Tags: Supreme Court, Law, Kentucky, Donald Trump, Ruth Bader Ginsburg, United, White, Trump, Thomas, Sonia Sotomayor, John Roberts, Roberts, Ginsburg, Alito, William Rehnquist, Sotomayor


Argument analysis: Meandering argument suggests justices likely to narrow bankrupts’ power to rescind licenses in bankruptcy

The second and last argument of the week came in the Supreme Court’s most important bankruptcy case of the year, Mission Product Holdings Inc. v. Tempnology, LLC. The case presents a problem that has confused lower courts for more than 30 years: What happens when a debtor exercises its statutory right to reject a contract in bankruptcy? It is plain from the language of the statute that the debtor’s rejection should be treated as a “breach” of the contract, and that the counterparty can sue the b...
Tags: Featured, Supreme Court, Law, Congress, Ruth Bader Ginsburg, Sonia Sotomayor, Ginsburg, U S Court of Appeals, Sotomayor, Stephen Breyer, Elena Kagan, Kagan, 7th Circuit, Samuel Alito, Sunbeam, 4th Circuit


Supreme Court rules against "excessive" police seizures and sales of property

Philly.com: Justice Ruth Bader Ginsburg wrote the court's opinion in favor of Tyson Timbs, of Marion, Indiana. Police seized Timbs' $40,000 Land Rover when they arrested him for selling about $400 worth of heroin. Reading a summary of her opinion in the courtroom, Ginsburg noted that governments employ fines "out of accord with the penal goals of retribution and deterrence" because fines are a source of revenue. The 85-year-old justice missed arguments last month following lung cancer surgery, ...
Tags: Post, News, Supreme Court, Law, B-side, Times, Ruth Bader Ginsburg, Philly, The Supreme Court, Ginsburg, Tyson Timbs of Marion Indiana Police


Supreme court curbs states' power to levy fines and seize property through civil forfeiture

The Supreme Court today unanimously rules for Tyson Timbs, a small-time drug offender whose $42,000 Land Rover was seized by the state of Indiana as a civil forfeiture. In its opinion, the Supreme Court rules that the U.S. Constitution's 8th amendment clause on excessive fines clause applies to states and local governments, and curbs their power to levy fines and seize property. Here is a link to the full Opinion by Justice Ginsburg. This is the first time the highest court of the nation has...
Tags: Post, News, Justice, Supreme Court, Law, Scotus, US news, Indiana, Civil Forfeiture, Mark Joseph Stern, Robert Barnes, Ginsburg, Steven Mazie, Clarence Thomas, Gorsuch, Picks


Wednesday round-up

This morning, in Mission Product Holdings Inc. v. Tempnology LLC, the justices will consider whether a trademark licensee retains any rights under a licensing agreement when the licensor goes bankrupt. Ronald Mann previewed the case for this blog. Cecelia Bruni and Brady Plastaras have a preview at Cornell Law School’s Legal Information Institute. Yesterday the court released additional orders from Friday’s conference, adding an important Clean Water Act case to their docket for next term and in...
Tags: Texas, Mississippi, Maryland, Supreme Court, Law, Kentucky, Court, Cnn, Atlantic, New York Times, Epa, Flowers, Ruth Bader Ginsburg, American Legion, Trump, Round-up


Supreme Court rules unanimously in Timbs that Excessive Fines Clause of Eighth Amendment applies to the states (and says little else)

The Supreme Court this morning made quick work of the contention by the state of Indiana in Timbs v. Indiana, No. 17-1091 (S. Ct. Feb 20, 2019) (available here), that it is not bound by the Excessive Fines Clause of the Eighth Amendment.  In a short unanimous ruling authored by Justice Ginsburg explains why "the historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming."  Here is a key passage from the start of he Timbs opini...
Tags: Supreme Court, Law, Indiana, Chicago, United States, Thomas, McDonald, Ginsburg, Clarence Thomas, Gorsuch, Douglas A Berman, Timbs, Tyson Timbs Land Rover SUV Timbs


Return Mail: We start from the baseline that the government is not a person

by Dennis Crouch [Oral Arguments Transcript] Today, the Supreme Court heard oral arguments in the business method review case of Return Mail Inc. v. U.S. Postal Service.  The basic question in the case is whether the United States government (here the USPS) counts as “a person who is not the owner of a patent.”  If the US is a person, then it has standing to file a petition for inter partes review, post grant review, covered business method review. See 35 U.S. Code § 321.* Question presented: Wh...
Tags: Supreme Court, Law, Congress, US, United States, US Postal Service, Usps, Uspto, AIA, Patent, Ginsberg, Stewart, Stevens, Ginsburg, U S Postal Service, PTO


Argument analysis: Justices seem divided about government right to challenge patents in administrative process

The justices have a light calendar this week, with only two arguments. If the first argument of the week (Return Mail Inc. v. U.S. Postal Service) is any guide, they’ve spent their extra time focusing carefully on the relatively thin session. At first glance, Return Mail is a simple statutory case, involving another in a long line of drafting flaws in the AIA (Congress’ 2011 patent-reform bill, the Leahy-Smith America Invents Act). But the argument presented a highly engaged bench, with all of t...
Tags: Featured, Law, Congress, Post Office, Postal Service, AIA, Stewart, John Roberts, Cato Institute, Ginsburg, U S Postal Service, Alito, PTO, Sotomayor, Stephen Breyer, Breyer


A “view” from the courtroom: Back to the bench for Justice Ginsburg

The court is returning to the bench this morning after its usual four-week winter recess. The recess, marked by noteworthy “shadow docket” actions on the death penalty, abortion rights and other matters, may have offered more news than the relatively sleepy February sitting. Today, though, the press section is filling up, and it is not because there is a groundswell of interest in today’s lone case for argument – a thorny patent dispute between a private business and the U.S. Postal Service over...
Tags: New York, Hollywood, Featured, Law, Congress, Abc, California, Washington, Alabama, Los Angeles, Syria, Cnn, Commerce, Oscar, Npr, Ross


Tuesday round-up

This morning the justices will return from a four-week break to hear oral argument in Return Mail Inc. v. United States Postal Service, in which they will consider whether the federal government can challenge patents under the America Invents Act. Ronald Mann previewed the case for this blog. Garion Liberti and Tayler Woelcke have a preview at Cornell Law School’s Legal Information Institute. Subscript Law offers a graphic explainer for the case. First Mondays (podcast) previews both of this wee...
Tags: New York, Supreme Court, Law, America, Georgia, Atlantic, Ford, New York Times, Npr, Louisiana, Donald Trump, Ruth Bader Ginsburg, Economist, Trump, Round-up, United States Postal Service



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