Posts filtered by tags: Elena `` Kagan[x]


 

Opinion analysis: Justices narrow bankrupts’ power to rescind contracts in bankruptcy

Yesterday’s opinion in Mission Product Holdings Inc. v. Tempnology, LLC resolved a long-standing disagreement in the lower courts about what happens when a debtor exercises its statutory right to reject a contract in bankruptcy. Section 365 of the Bankruptcy Code gives the debtor an explicit right to “reject” contracts, and tells us that rejection amounts to a “breach” of the contract, which gives the nonbankrupt counterparty a right to sue the bankrupt for damages. The lower courts have struggl...
Tags: Featured, Supreme Court, Law, Congress, Elena Kagan, Kagan, Goldstein Russell, Lubrizol, Merits Cases, Mission Product Holdings Inc, Tempnology LLC, Douglas Baird, Mission Product Holdings, Tempnology, Lubrizol Enterprises, Quoting University of Chicago


Ask the author: “So Long, Earl”

The following is a series of questions prompted by the forthcoming publication of Michael Bobelian’s “Battle for the Marble Palace: Abe Fortas, Earl Warren, Lyndon Johnson, Richard Nixon, and the Forging of the Modern Supreme Court” (Schaffner Press, 2019). As Bobelian reports, soon after President Lyndon Johnson nominated Justice Abe Fortas to replace Chief Justice Earl Warren, Fortas’ clerks began taking over some of the chief justice’s administrative tasks. Their confidence proved misplaced...
Tags: Featured, Supreme Court, Law, Obama, Mexico, Senate, Book Reviews, Barack Obama, Chicago, Ronald Reagan, House, Warren, Mitch McConnell, Michigan, Vietnam, Republican


US Supreme Court decides to let consumers sue Apple over App Store rules

The US Supreme Court on Monday ruled against Apple in a case that could have broad implications for the e-commerce industry and which also means the door is now open for consumers to sue the iPhone maker over its App Store rules and practices.In a 5-4 ruling, with Donald Trump appointee Brett Kavanaugh siding with the court's four liberal justices, the decision essentially clears the way for a class action lawsuit against Apple to proceed. That suit will focus on Apple's rules that devel...
Tags: Apple, News, App Store, Donald Trump, US supreme court, Trump, 9th U S Circuit Court of Appeals, Elena Kagan, Kagan, Brett Kavanaugh, Neil Gorsuch


Is the latest SCOTUS sparring in capital cases only likely to get worse and worse?

The question in the title of this post is prompted by today's Supreme Court developments in older capital cases, some of which I missed when just blogging here about the morning order list.   Specifically, I missed that Justice Alito penned a lenghty dissent to a stay in a capital case from Texas six week ago(!), which in turn prompted a four-page defense of the stay by Justice Kavanaugh.  (This discussion can be found at this link following the original stay.)   Adam Liptak summarizes all the a...
Tags: Texas, Supreme Court, Law, Christopher Lee, Alabama, New York Times, Christian, Thomas, Buddhist, Adam Liptak, Alito, Breyer, Stephen G Breyer, Elena Kagan, Clarence Thomas, Kavanaugh


Opinion analysis: Divided court allows antitrust lawsuit against Apple to continue

This morning a divided Supreme Court handed a major victory to the plaintiffs in a massive antitrust lawsuit against technology giant Apple. By a vote of 5-4, the justices allowed the lawsuit, brought by a group of iPhone users who allege that Apple is violating federal laws by requiring them to buy apps exclusively from Apple’s App Store, to go forward. In an opinion by its newest justice, Brett Kavanaugh, the court rejected Apple’s argument that the lawsuit should be shut down because the comp...
Tags: Apple, Featured, Supreme Court, Law, California, Illinois, Apple Inc, John Roberts, The Supreme Court, Howe, U S Court of Appeals, Elena Kagan, Clarence Thomas, Kavanaugh, Gorsuch, Merits Cases


Ask the authors: “Plain words, easily understood”

The following is a series of questions prompted by the publication of Lee C. Bollinger and Geoffrey R. Stone’s “The Free Speech Century” (Oxford University Press, 2019). As Justice Oliver Wendell Holmes famously suggested in 1919 in Schenck v. United States, the Supreme Court’s first attempt to interpret the First Amendment’s free speech clause, the “most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” But what does free s...
Tags: New York, Featured, Supreme Court, Law, Congress, Book Reviews, Alabama, America, United States, South Africa, United Kingdom, New York Times, Bill Cosby, Cosby, Ohio, Lincoln


Tuesday round-up

Yesterday a unanimous court ruled in Thacker v. Tennessee Valley Authority that the TVA can generally be sued for personal-injury claims, and sent the case back for the lower court to determine whether this particular claim can proceed. Gregory Sisk analyzes the opinion for this blog. Y. Peter Kang and Jimmy Hoover report for Law360 (subscription required) that the ruling “reviv[es] a sports fisherman’s negligence suit against the quasi-government utility.” At Bloomberg Law, Jordan Rubin reports...
Tags: Google, New York, Supreme Court, Law, Bloomberg, New York Times, Joe Arpaio, Oracle, Trump, Round-up, TVA, U S Supreme Court, Howe, Adam Liptak, Department of Commerce, Mark Walsh


Opinion analysis: When the federal government acts as a commercial enterprise, the courthouse doors open wider

In Thacker v. Tennessee Valley Authority, the federal government asked for broad policy immunity to shield choices by the Tennessee Valley Authority about the safety measures the TVA employed when stringing a power line across a river. In today’s decision, the Supreme Court unanimously refused to infer limits on the statutory authorization for suit against the TVA and emphasized the rather ordinary commercial nature of the TVA’s activity. The court reversed the dismissal by the U.S. Court of App...
Tags: Featured, Supreme Court, Law, Congress, United States, Postal Service, Amtrak, TVA, U S Court of Appeals, Elena Kagan, Burr, Federal Housing Administration, Tennessee Valley Authority, Thacker, 11th Circuit, FTCA


Opinion analysis: The meaning of consent to class arbitration

Of the three arbitration cases on the Supreme Court’s docket this term, two were decided unanimously in decisions issued relatively soon after argument. That trend did not hold for Lamps Plus v. Varela: The court split 5-4, with the more conservative justices rejecting the application of the common-law rule that ambiguous contracts are construed against their drafter when the contract in question is an arbitration contract and the ambiguity concerns whether plaintiff-employees may arbitrate on a...
Tags: Featured, Supreme Court, Law, Ruth Bader Ginsburg, Faa, Thomas, Sonia Sotomayor, John Roberts, 9th Circuit, Roberts, Ginsburg, U S Court of Appeals, Stephen Breyer, Elena Kagan, Kagan, Clarence Thomas


Argument analysis: ACCA argument becomes a broader discussion of statutory interpretation

Yesterday’s argument in what appeared to be a relatively routine Armed Career Criminal Act case (see my preview here), developed into a fascinating discussion among the justices about statutory interpretation, led by Justices Elena Kagan and Neil Gorsuch. The justices focused on how best to interpret a federal statute when an issue is presented that was simply not on Congress’ mind when it wrote the statute. They also considered how the Supreme Court should apply a governing precedent when, as K...
Tags: Featured, Supreme Court, Law, Congress, United States, Michigan, Ruth Bader Ginsburg, Taylor, Sonia Sotomayor, John Roberts, Stephen Breyer, Tripp, Elena Kagan, Kagan, Clarence Thomas, Samuel Alito


A “view” from the courtroom: Counting to five

Today is the oral argument in one of the term’s biggest cases, Department of Commerce v. New York, about the Trump administration’s efforts to add a citizenship question to the 2020 census. It is also a rare day for afternoon arguments, and rarer still because there will be two of those. Solicitor General Noel G. Francisco at lectern (Art Lien) When the court squeezed the census case into its already announced April calendar, it made the wise decision to push the two cases that were originall...
Tags: New York, Featured, Supreme Court, Law, Congress, United States, Commerce, House, House Of Representatives, United Nations, Wisconsin, Un, Francisco, Mitchell, Trump, Sonia Sotomayor


Argument analysis: Justices debate warrantless blood draw for unconscious drunk driver

Under Wisconsin law, anyone who drives on the state’s roads is assumed to have consented to have his blood tested for alcohol and drugs. The state’s laws also assume that a driver who is unconscious has not withdrawn that consent. Today – in a rare afternoon session – the Supreme Court heard oral argument in a challenge to the constitutionality of the provision allowing a blood test of an unconscious driver without a warrant. After an hour of debate, it wasn’t entirely clear how the justices mig...
Tags: Featured, Supreme Court, Law, Wisconsin, Ruth Bader Ginsburg, Mitchell, John Roberts, Roberts, Howe, Ginsburg, Department of Motor Vehicles, Alito, Stephen Breyer, Breyer, Elena Kagan, Kagan


Argument analysis: Justices appear likely to endorse broader reading of FOIA exemption for “confidential” commercial information

An observer might be excused if she was confused by Monday’s oral argument in Food Marketing Institute v. Argus Leader Media. The case concerns the application of the term “confidential” commercial or financial information in Exemption 4 of the Freedom of Information Act to grocery-store data collected from transactions involving debit cards issued to Supplemental Nutrition Assistance Program benefits recipients. A South Dakota newspaper had requested the data as part of its investigations into ...
Tags: Featured, Supreme Court, Law, Congress, Usda, National Parks, South Dakota, Foia, Circuit, Ruth Bader Ginsburg, Young, Morton, Sonia Sotomayor, John Roberts, U S Department of Agriculture, Supplemental Nutrition Assistance Program


Afternoon round-up: Oral argument in Department of Commerce v. New York

This morning, the justices heard 80 minutes of argument in one of the term’s highest-stakes cases, Department of Commerce v. New York, a challenge to the Trump administration’s decision to add a question about citizenship to the 2020 census. Amy Howe analyzed the argument for this blog, in a post that originally appeared at Howe on the Court, reporting that “the justices seemed divided along ideological lines, with the conservative justices appearing ready to uphold the use of the question.” Add...
Tags: Usa, New York, Law, Court, Nbc News, Los Angeles, Fox News, Trump, Round-up, Mark Sherman, Sonia Sotomayor, Robert Barnes, Lawrence Hurley, Howe, Adam Liptak, Jess Bravin


Argument analysis: Divided court seems ready to uphold citizenship question on 2020 census

The Supreme Court heard oral argument this morning in the dispute over the Trump administration’s decision to include a question about citizenship on the 2020 census. The federal government says that the Department of Justice wants data about citizenship to better enforce federal voting rights laws. But the challengers in the case counter that asking about citizenship will lead to an inaccurate count, because households with undocumented or Hispanic residents may not respond. After roughly 80 mi...
Tags: Florida, New York, Texas, Featured, Supreme Court, Law, Congress, United States, Ireland, House, United Nations, Ohio, Nancy Pelosi, Department Of Justice, Ruth Bader Ginsburg, Francisco


Conservative Justices Seem Inclined To Keep Citizenship Question On Census

With so much at stake — the apportionment of political power nationwide, the adequate representation of immigrant communities, the scope of executive power —the Supreme Court arguments Tuesday over whether the Trump administration could add a citizenship question to the 2020 census wound up being highly technical. The much-anticipated hearing included ample discussion of phrases like “comparative errors,” “maximal need,” and “credible quantitative evidence.” What was not evident was any un...
Tags: New York, News, Supreme Court, Congress, Commerce, Aclu, United Nations, Dc, Francisco, Justice Department, Ross, Trump, Tierney Sneed, Ho, Sonia Sotomayor, John Roberts


Supreme Court hears arguments over citizenship question on census

By MARK SHERMAN WASHINGTON — Conservative Supreme Court justices were mostly silent Tuesday as a Trump administration lawyer defended the government’s plan to ask about citizenship on the 2020 census , an indication the court’s majority may be inclined to side with the administration. Critics say adding the question would discourage many immigrants from being counted, leading to an inaccurate count, and liberal justices peppered the administration’s top Supreme Court lawyer with questions as the...
Tags: Politics, New York, News, Supreme Court, Congress, Washington, Uncategorized, Sport, Soccer, Commerce, House Of Representatives, Kansas, Donald Trump, Ruth Bader Ginsburg, Francisco, Justice Department


Argument analysis: Court worries that state trust tax may tax trust income that is never distributed to in-state beneficiary

On Tuesday, the Supreme Court heard oral argument in North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust. North Carolina hopes to convince the court that its method of taxing trusts, with jurisdiction based on an in-state beneficiary, passes constitutional muster. The court greeted the state’s arguments with significant skepticism. As a quick recap, North Carolina’s Department of Revenue is defending tax liability imposed on income earned by the Kimberley Rice Kaest...
Tags: New York, Featured, Supreme Court, Law, Virginia, South Dakota, Norfolk, North Carolina, Sonia Sotomayor, John Roberts, Wayfair, Brooke, Sotomayor, Stephen Breyer, Breyer, Elena Kagan


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: “The last Johnson domino to fall”?

Today the Supreme Court considered “the last Johnson domino to fall” (at least potentially). The case, United States v. Davis, involves the possible implications of the Supreme Court’s 2015 decision in Johnson v. United States. Johnson invalidated the residual clause of the Armed Career Criminal Act, a statute that imposes additional punishment on persons with multiple prior convictions for “violent felonies.” Johnson held that the now-defunct residual clause of the ACCA, which defined a viol...
Tags: Featured, Supreme Court, Law, Congress, Beck, United States, Davis, Johnson, Blackstone, Sonia Sotomayor, John Roberts, Roberts, Alito, Sotomayor, Breyer, Elena Kagan


Argument analysis: Justices grapple with immoral and scandalous trademarks

On Monday, the Supreme Court considered the intersection of free speech and trademark law when it addressed the constitutionality of prohibiting trademark registration for offensive trademarks. This case arose in the aftermath of Matal v. Tam. In Tam, the court struck down the Lanham Act’s prohibition on registration of disparaging trademarks, holding that the ban constituted viewpoint discrimination in violation of the First Amendment. The question before the court on Monday was whether the pro...
Tags: Featured, Supreme Court, Law, Congress, California, George Carlin, Miller, Times Square, Tam, Sonia Sotomayor, Stewart, John Roberts, Roberts, Alito, PTO, U S Patent and Trademark Office


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


Friday round-up

For the Los Angeles Times, David Savage reports that “Wedding cakes and same-sex marriages are back before the Supreme Court, and this time the justices are being asked to rule broadly that the 1st Amendment’s protection of the ‘free exercise’ of religion shields conservative Christians from state civil rights laws.” At Rewire.News, Jessica Mason Pieklo writes that the petitioners in Klein v. Oregon Bureau of Labor and Industries, which stems from two bakery owners’ refusal on religious grounds ...
Tags: Supreme Court, Law, Washington, United States, Ruth Bader Ginsburg, Border Patrol, Trump, Round-up, U S Supreme Court, John Roberts, Roberts, Robertson, Swartz, Rodriguez, Elena Kagan, Nogales


Ask the author: “Mr. Everything” – Joan Biskupic on Chief Justice John Roberts

The following is a series of questions posed by Ronald Collins to Joan Biskupic about Biskupic’s book “The Chief: The Life and Turbulent Times of Chief Justice John Roberts” (Basic Books, 2019, 432 pp., cloth: $32.00). Joan Biskupic is a legal analyst at CNN and the author of three previous biographies of Supreme Court justices. She has also served as the Supreme Court correspondent for The Washington Post and USA Today. Welcome Joan, and thank you for taking the time to participate in this qu...
Tags: Featured, Supreme Court, Law, Washington Post, Boston, Court, Book Reviews, America, Barack Obama, Reagan, Cnn, Harvard, Citizens United, Arizona, Republican, Usa Today


Argument preview: Who’s afraid of the categorical approach?

Next Wednesday, the Supreme Court will hear argument in United States v. Davis. Davis is the latest in a string of cases stemming from Johnson v. United States, the 2015 decision invalidating the Armed Career Criminal Act’s residual clause (Section 924(e)(2)) as unconstitutionally void for vagueness. ACCA imposes additional punishment on certain individuals convicted of being a felon in possession of a firearm. That crime typically carries a maximum of 10 years’ imprisonment. ACCA imposes a 15-y...
Tags: Featured, Supreme Court, Law, United States, Davis, Johnson, Thomas, Alito, Dean, Stephen Breyer, Elena Kagan, Clarence Thomas, Samuel Alito, Anthony Kennedy, Davis Davis, United States the Supreme Court


Newtonian and Anti-Newtonian Political and Judicial Polarization

For the symposium on Neal Devins and Lawrence Baum's new book, The Company They Keep: How Partisan Divisions Came to the Supreme Court (Oxford University Press, 2019). The PEW Research Group’s surveys of public opinion in the United States document the fundamental regime change that has taken place over the last half century. Public opinion surveys taken during the Great Society found that elite Republicans and elite Democrats were more likely to agree with each other than with less educated and...
Tags: Supreme Court, Congress, Elizabeth Warren, Barack Obama, United States, Republican Party, Donald Trump, Ruth Bader Ginsburg, Newton, Branding, Democratic, Democratic Party, John Roberts, Roberts, Harvard Law Review, Roe


Relist Watch

John Elwood previews next Monday’s likely relists. This week’s installment is going to be brief, but at least it won’t be funny. It’s not just that I’m pressed for time, though I am: As I type this, the power is out for my entire neighborhood, and I sit hunched over my laptop in inky blackness. Apparently, the universe has decided that my gratuitous hyperlinks need to be given a rest. There was one grant out of last week’s relists, pushing the Kansas Supreme Court into an early lead as the most-...
Tags: Featured, Supreme Court, Law, Congress, Oregon, Time, Indiana, Dhs, United States, Portland, Nielsen, Box, Smith, Naacp, Department Of Homeland Security, University Of California


Opinion analysis: Court rejects per se rule on cross-examination in Social Security disability cases

The Supreme Court yesterday turned down a Social Security Disability Insurance plaintiff’s proposal to establish a per se rule effectively requiring vocational experts to turn over the data underlying their opinions in every case. Michael Biestek had asked the court to decide that testimony from such an expert who declined a request to turn over underlying data could never suffice to meet the Social Security Administration’s statutory obligation to support its decisions with “substantial evidenc...
Tags: Featured, Supreme Court, Law, Social Security, Social Security Administration, Ruth Bader Ginsburg, Sonia Sotomayor, SSA, U S Court of Appeals, Elena Kagan, Kagan, ALJ, Social Security Disability Insurance, Gorsuch, Merits Cases, Neil Gorsuch


Opinion analysis: The justices wish Sturgeon “good hunting” in Sturgeon v. Frost

The Supreme Court ruled unanimously yesterday in favor of Alaskan John Sturgeon, who waged a 12-year battle against the National Park Service over its ban on hovercraft in park preserves. As a result of the decision, Sturgeon can once again “rev up his hovercraft in search of moose” on the Nation River in the Yukon Charley Preserve. This is the second time this fight has come before the Supreme Court. On one hand, it involves important legal issues affecting public lands, federalism and water ri...
Tags: Featured, Supreme Court, Law, Congress, United States, Alaska, Epa, Frost, Ruth Bader Ginsburg, Sturgeon, National Park, Federal Government, National Park Service, Nps, Sonia Sotomayor, 9th Circuit