Posts filtered by tags: Kagan[x]


 

Herrera v. Wyoming: A Cautionary Encounter with Careless Repudiation

Daniel B. Rice and Jack Boeglin The law of repudiating precedent is hopelessly muddled.  The Supreme Court often simply overrules decisions whose reasoning it chooses to disavow.  But it sometimes stops just short of doing so—repudiating the principle underlying a case without explicitly overruling the case itself.  When those enfeebled decisions are invoked in later litigation, how should the Court understand their residual force?  Have they been “effectively” overruled, overruled sub silent...
Tags: London, Minnesota, Justice, Supreme Court, Court, United States, Wyoming, Branding, Guest Blogger, Ward, Covington, Breyer, Kagan, Mille Lacs, Kavanaugh, Herrera


Broadcast mergers were huge in 2018, which means cable bills could skyrocket — but there's a silver lining for consumers

2018 was an active year for broadcast-station M&A, with $8.9 billion in deal volume, the second-biggest year in the past decade. Consolidation among broadcasters means that station ownership is concentrated among fewer broadcast groups. It also gives them more leverage in negotiating fees, which are then passed down to consumers in the form of higher cable and satellite bills. Consolidation among TV broadcasters and distributors ends up soaking consumers as cable and satellite bills ba...
Tags: Apple, Verizon, Time Warner Cable, US, Trends, Comcast, Xiaomi, Jennifer Lopez, Nielsen, Tribune Media, Nexstar, Tribune, Verizon FIOS, SVP, Sinclair Broadcast Group, Charter Communications


Reargument analysis: Justices seek a “middle position” in takings litigation case

During yesterday’s argument in Knick v. Township of Scott – the second time the court has heard the case this term – the justices seemed to be looking for a compromise position. The court granted review in the case to decide whether to overrule a 1985 precedent, Williamson County Regional Planning Commission v. Hamilton Bank, which requires local-government takings plaintiffs to follow the state’s compensation procedures before alleging a taking in federal court. Williamson County is controversi...
Tags: Featured, Law, Congress, San Francisco, Pennsylvania, United States, Francisco, Sachs, Sonia Sotomayor, John Roberts, Roberts, Alito, Sotomayor, Stephen Breyer, Breyer, Elena Kagan


Argument analysis: Justices have strong views about removal of class actions

Yesterday morning’s argument in Home Depot U.S.A. v. Jackson was a notable one, as Justice Elena Kagan brought a strong view of the case to the bench and proceeded to dominate the argument. The case involves the removal of litigation from state court to federal court. Under Section 1441 (and predecessor provisions dating back to the 18th century), “the defendant or the defendants” generally has a right to remove “any civil action brought in a State court of which the [federal] district courts ha...
Tags: Home Depot, Featured, Law, Congress, Citibank, Jackson, Sonia Sotomayor, John Roberts, Alito, Sotomayor, Stephen Breyer, Breyer, Elena Kagan, Kagan, Samuel Alito, Goldstein Russell


Argument analysis: Justices weigh text and history of 21st Amendment in challenge to state residency requirement for liquor licenses

Ratified in 1933, the 21st Amendment ended Prohibition – which (fun fact!) was established by the 18th Amendment, ratified 100 years ago today. It also gave states broad power to regulate alcoholic beverages. At today’s oral argument in Tennessee Wine and Spirits Retailers Association v. Blair, the justices considered exactly how expansive that regulatory power is. In particular, does the 21st Amendment allow Tennessee to impose a two-year residency requirement for anyone who wants a retail lice...
Tags: Amazon, Utah, Featured, Supreme Court, Law, Tennessee, Nashville, Ruth Bader Ginsburg, Memphis, Wilson, Sonia Sotomayor, John Roberts, Phillips, Blair, Howe, Alito


Argument analysis: Justices grapple with notice-and-comment rulemaking for Medicare and beyond

Medicare was before the Supreme Court yesterday in a case that could have significant implications for administrative law. At the granular level, the case, Azar v. Allina Health Services, concerns whether the Department of Health and Human Services was permitted to change, without notice and comment, an important reimbursement formula for hospitals that treat many low-income patients. That question alone determines the fate of $3 to $4 billion. But the stakes are higher because the case requires...
Tags: Featured, Supreme Court, Law, Congress, Medicare, Ruth Bader Ginsburg, National Labor Relations Board, Shah, Thomas, Sonia Sotomayor, APA, HHS, D C Circuit, Department of Health and Human Services, Sotomayor, Bowen


Argument analysis: When is the government not really the government for immunity from tort liability?

In Thacker v. Tennessee Valley Authority, the government contends (and the lower courts agreed) that the TVA should be immune from tort liability to shield executive policy-making, even when the TVA is engaged in arguably commercial activity. The petitioner, Gary Thacker, argues that an entirely different analysis applies to the TVA, which Congress has made broadly subject to suit without expressly preserving policy immunity. Ann O’Connell Adams, assistant to the U.S. solicitor general (Art Li...
Tags: Featured, Supreme Court, Law, Congress, United States, Adams, Sonia Sotomayor, TVA, John Roberts, Roberts, Alito, Rouse, Tennessee River, Sotomayor, Stephen Breyer, Breyer


Argument analysis: Quiescent bench dubious about broad fee awards in copyright cases

The week’s second argument, Rimini Street v. Oracle USA, has the justices considering the scope of fees available to a prevailing party in litigation under the federal Copyright Act. Sitting for the second week without Justice Ruth Bader Ginsburg, the bench was remarkably quiescent. To the extent the justices evinced any strong interest in the case, they seemed skeptical about allowing broad fee awards. The case calls for a reading of Section 505 of the Copyright Act, which defines the recove...
Tags: Featured, Law, Congress, Court, Ruth Bader Ginsburg, Paul Clement, Sonia Sotomayor, John Roberts, Perry, Roberts, Sotomayor, Elena Kagan, Kagan, RIMINI, Clement, Mark Perry


Argument analysis: The familiar yet fresh debate in Franchise Tax Board of California v. Hyatt

Federal courts aficionados have been looking forward to the oral argument in Franchise Tax Board of California v. Hyatt, and the event did not disappoint. The question was whether to overrule the decades-old precedent Nevada v. Hall, which held that states lack sovereign immunity in one another’s courts. The argument largely broke down according to familiar ideological lines, but the discussion still had verve and creativity, in part thanks to the performances of veteran advocates Seth Waxman an...
Tags: Featured, Supreme Court, Law, California, Nevada, Ruth Bader Ginsburg, Hall, Hyatt, Sachs, Sonia Sotomayor, John Roberts, Waxman, Alito, William Rehnquist, Sotomayor, Stephen Breyer


Argument analysis: Searching for the least unnatural reading

The second argument on Monday was in Obduskey v. McCarthy Holthus LLP, a case about whether law firms that handle nonjudicial foreclosures are “debt collectors” within the meaning of the Fair Debt Collection Practices Act. If the argument clarified anything, it’s that the FDCPA is a messy statute. This case arises from a crowded corner of consumer law involving significant state and federal regulations that do not always play well together. Colorado foreclosure law requires a firm initiating a n...
Tags: Featured, Law, Congress, Colorado, United States, Ruth Bader Ginsburg, Bond, Mccarthy, Wells Fargo, Fdcpa, Sonia Sotomayor, John Roberts, Sotomayor, Stephen Breyer, Breyer, Elena Kagan


Argument analysis: Justices wade deep into the copyright weeds

Tuesday’s argument in Fourth Estate v. Wall-Street.com featured competing interpretations of the phrase “registration of the copyright claim has been made” in 17 U.S.C.§ 411(a), which requires copyright registration as a prerequisite for filing an infringement suit. Because much of the argument focused on niceties of textual interpretation, I’ll quote the language of the relevant subsection: [N]o civil action for infringement of the copyright in any United States work shall be instituted until p...
Tags: Featured, Supreme Court, Law, Congress, United States, Ruth Bader Ginsburg, Copyright Office, Sonia Sotomayor, John Roberts, Ellis, U S Court of Appeals, Elena Kagan, Kagan, Kavanaugh, 11th Circuit, Fourth Estate


Argument analysis: Gleaning the FDA’s meaning for impossibility pre-emption

Much of the federal government may be in shutdown mode, but the Supreme Court is still open for business. The Supreme Court opened its January session Monday morning with argument in Merck Sharp & Dohme Corp. v. Albrecht, a case about the workings of the Food & Drug Administration (still partially open) and when the agency’s actions may insulate drug manufacturers from state tort suits through “impossibility pre-emption.” An important and often-used litigation defense for manufacturers, impossib...
Tags: Featured, Supreme Court, Law, Merck, United States, Fda, Sonia Sotomayor, Stewart, John Roberts, Albrecht, Roberts, Ginsburg, Levine, Sotomayor, Stephen Breyer, Breyer


Purported SCOTUS originalists and liberals, showing yet again that they are faint-hearted, refuse to consider extending jury trial rights to restitution punishments

I noted in this post the array of per curiam rulings and statements that the Supreme Court released today to get 2019 off to an interesting criminal justice start.  Regular readers will not be surprised to learn that one particular decision, namely the decision to deny certiorari in Hester v. US, has me revved up.  Hester involves a claim that the Sixth Amendment jury trial right recognized in Apprendi, Blakely, Booker and Southern Union is applicable to cases in which findings are essential for...
Tags: Supreme Court, Law, Washington, US, America, United States, Smith, Kennedy, Jones, Commonwealth, Thomas, Henry Viii, State, Somerville, Roberts, Ginsburg


Supreme Court order list full of (state-friendly) criminal justice per curiams and notable cert denial with statements

The Supreme Court is full back in action for the New Year, beginning with this new long order list with the always-expected long list of denials of certiorari and denials of rehearing. But the list also includes these two notable per curiam rulings: City of Escondido v. Emmons, No. 17-1660, which summarily reverses/vacates a Ninth Circuit ruling that two officers were not entitled to qualified immunity in a excessive force case. Shoop v. Hill, No. 18-56, which summarily vacates a Sixth Circuit ...
Tags: Sixth Circuit, Supreme Court, Law, US, Georgia, Ohio, Ginsburg, Alito, Ninth Circuit, Sotomayor, Emmons, Kagan, Escondido, Hester, Shoop, Gorsuch


Government asks justices to intervene on asylum ban

Last month President Donald Trump blasted a ruling by a federal judge in San Francisco that blocked the government from enforcing a rule that would prohibit immigrants who enter the country illegally from requesting asylum. Trump criticized U.S. District Judge Jon Tigar, who issued the order, as an “Obama judge” and predicted that the government would “win that case in the Supreme Court of the United States.” Trump’s comments elicited a rare public rebuke from Chief Justice John Roberts, and tod...
Tags: Featured, Supreme Court, Law, Obama, California, San Francisco, United States, Donald Trump, Francisco, Trump, John Roberts, Howe, U S Court of Appeals, Elena Kagan, Kagan, Jon Tigar


Morning Docket: 12.07.18

* Which Supreme Court justice is apparently the best at throwing shade at her colleagues during oral arguments? It's Justice Kagan. Sick burn, Your Honor. [National Law Journal] * "Presidential harassment"? President Trump is blaming special counsel Robert Mueller's election interference probe for his low Rasmussen Reports approval rating of 50 percent. Damn, when a pollster known for favoring the president is only giving him a 50 percent rating, you know it's pretty bad. [POLITICO] * Speaking...
Tags: Supreme Court, Law, Women's Issues, Donald Trump, Weight Gain, Biglaw, Trump, Michael Cohen, Elena Kagan, Kagan, Rasmussen Reports, Which Supreme Court, Quinn Emanuel, Robert Mueller, Morning Docket, Partner Issues


Argument analysis: Majority appears ready to uphold “separate sovereigns” doctrine

When Terance Gamble was pulled over by police in Alabama three years ago for having a faulty headlight, he probably didn’t think that prosecutors would make a federal case out of it. And he certainly wouldn’t have imagined that his case would make national headlines – not so much for its own sake, but because of what a win for Gamble might mean for prosecutions arising from Special Counsel Robert Mueller’s investigation into possible Russian interference in the 2016 election. Both of these thing...
Tags: England, Featured, Supreme Court, Law, Alabama, United States, Donald Trump, Ruth Bader Ginsburg, John Roberts, Louis, Roberts, Gamble, Howe, Ginsburg, Alito, Stephen Breyer


Argument analysis: Justices wrestle with scope of cross-examination of social security experts

On Tuesday, the Supreme Court heard argument in an important Social Security Disability Insurance case, Biestek v. Berryhill. At issue was whether the Social Security Administration may ground a decision to deny benefits on the opinion of a vocational expert who refuses to disclose the data on which that opinion relies. Under the regulations, once a claimant has demonstrated that a severe impairment prevents her or him from returning to past relevant work, the agency must show that jobs exist in...
Tags: Featured, Supreme Court, Law, Social Security, Social Security Administration, Ruth Bader Ginsburg, Sonia Sotomayor, John Roberts, SSA, Yang, Roberts, Ginsburg, Alito, Sotomayor, Stephen Breyer, Elena Kagan


Argument analysis: Justices debate revised language in patent-priority statute

This morning’s argument in Helsinn v. Teva Pharmaceuticals brought the justices their first patent case of the year. As expected, this argument included little of the technical concerns that so often dominate patent cases.  This case comes to the court as a simple and confined question of statutory language, and the argument suggested that the court will resolve it from that perspective. The dispute involves provisions of the Patent Act that “bar” an inventor from obtaining a patent if the inven...
Tags: Featured, Law, Congress, AIA, Sonia Sotomayor, Stewart, Stephen Breyer, Kagan, Samuel Alito, Teva, Kavanaugh, U S Court of Appeals for the Federal Circuit, Teva Pharmaceuticals, Merits Cases, Leahy Smith America, William Jay


Of Brownies and Other Nutty Desserts: Supreme court considers whether the “on sale” bar is limited to public sales

Guest Post by Dmitry Karshtedt, Professor at GW Law.  Prof. Karshtedt attended the Supreme Court oral arguments in Helsinn v. Teva, and provides the following discussion.  A transcript of the arguments is available here: Helsinn Transcript. The oral argument in Helsinn Healthcare v. Teva Pharmaceuticals had a little bit of everything. First, the Court extensively aired the statutory interpretation question whether the phrase “otherwise available to the public” in the America Invents Act (AIA) ex...
Tags: Supreme Court, Law, Congress, Court, United States, Jay, AIA, Patent, Ginsburg, Alito, PTO, Sotomayor, Breyer, Kagan, Teva, Kavanaugh


Argument analysis: What would John Marshall do?

“[I]n McCulloch vs. Maryland, the court said that in general we don’t want to be micromanaging all the details of state taxation,” attorney Lawrence Rosenberg told the justices at the end of Monday’s oral argument in Dawson v. Steager. That’s not the way that McCulloch is usually remembered—far more famous is Chief Justice John Marshall’s statement in the 1819 case equating “the power to tax” with “the power to destroy.” But in any event, it was apparent by the end of the argument that the curre...
Tags: Featured, Maryland, Law, Senate, West Virginia, United States, Ruth Bader Ginsburg, Charleston, Sonia Sotomayor, John Roberts, Roberts, Ginsburg, Lindsay, Rosenberg, Sotomayor, Stephen Breyer


Argument analysis: Justices appear divided in debate over anti-fraud securities rules

The dividing lines were apparent at Monday’s argument in Lorenzo v Securities and Exchange Commission, as several justices seemed to think it self-evident that the conduct of petitioner Francis Lorenzo amounted to a fraudulent scheme under the federal securities laws, while at least one justice, Neil Gorsuch, appeared ready to rule for Lorenzo. To understand the debate, some background is useful. This case follows from the Supreme Court’s 2011 decision in Janus Capital v First Derivative Traders...
Tags: Featured, Supreme Court, Law, SEC, Janus Capital, Securities And Exchange Commission, Sonia Sotomayor, Alito, Sotomayor, Kagan, Lorenzo, Janus, Robert Heim, Gorsuch, Merits Cases, Heim


Justice Insider: Verbal Tics Of The Nation’s Highest Court

WASHINGTON (AP) — Justice Sonia Sotomayor wants you to know she’s sorry. Justice Neil Gorsuch is only asking for some help. When you sit through almost all the Supreme Court arguments in a week, a month or even a term (as The Associated Press does), you hear the same phrases over and over. Some justices have a sort of verbal signature, phrases they employ to disagree — more or less politely — with a lawyer arguing in front of them. Some can occasionally be jarring, as when Sotomayor interrupt...
Tags: Apple, News, Supreme Court, Washington, Ap, Associated Press, Ruth Bader Ginsburg, Sonia Sotomayor, John Roberts, Blatt, Sotomayor, Stephen Breyer, Breyer, Frederick, Elena Kagan, Kagan


SCOTUS Map: November 2018

With its newest member seated on the Supreme Court (and officially included in the latest class picture), the justices continued to project a united front, emphasizing their familial bonds and eschewing the labels of “conservative” and “liberal” altogether. “It was Justice Thomas who tells me that when he first came to the court, another justice approached him and said, ‘I judge you by what you do here. Welcome,’” Justice Sonia Sotomayor recounted in a recent interview with CNN’s David Axelrod...
Tags: Florida, Featured, Supreme Court, Law, Washington, France, Cnn, United States, Paris, Michigan, Globe, University of Toronto, Kennedy, Thomas, Harvard Law School, Sonia Sotomayor


Argument analysis: Court appears ready to rule that Constitution’s bar on excessive fines applies to the states

Petitioner Tyson Timbs outside court after oral argument Today the Supreme Court heard oral argument in the case of Tyson Timbs, an Indiana man who lost his 2012 Land Rover after he pleaded guilty to drug charges. The state argued that it could seize the car because it had been used to transport drugs, but Timbs countered that requiring him to forfeit the $42,000 car – which he had purchased with the proceeds from his father’s life insurance policy – would violate the Eighth Amendment’s ban o...
Tags: Featured, Supreme Court, Law, Indiana, Kia, Sonia Sotomayor, John Roberts, Fisher, Roberts, Howe, Alito, Stephen Breyer, Breyer, Elena Kagan, Kagan, Indiana Supreme Court


Argument analysis: Laughing and tolling the time to appeal class certification orders

Anyone who believes civil procedure is not funny should read the transcript of Tuesday’s argument in Nutraceutical Corp. v. Lambert, which showed eight interruptions for laughter in a case considering whether the 14-day period for appealing a class-certification decision is subject to equitable tolling based on concerns for fairness and justice. No one knew interlocutory appeals could be so humorous. The main provision at issue in the case is Federal Rule of Civil Procedure 23(f), which provides...
Tags: Featured, Law, Congress, California, Ruth Bader Ginsburg, Sonia Sotomayor, John Roberts, Roberts, Ginsburg, Alito, Lambert, U S Court of Appeals, Sotomayor, Breyer, Elena Kagan, Kagan


Argument analysis: Justices dubious about ramifications of broad Indian reservation in Oklahoma

This morning brought the justices a capital case of a different kind. Carpenter v. Murphy doesn’t raise issues of actual innocence, ineffective assistance of counsel or permissible methods of execution. Rather, it presents the justices with a different kind of question: whether the location in eastern Oklahoma where Patrick Murphy is alleged to have committed murder still lies within the borders of a reservation granted to the Creek Nation when it was forcibly relocated to that territory in the ...
Tags: Featured, Supreme Court, Law, Congress, Sherlock Holmes, Oklahoma, Ruth Bader Ginsburg, John Roberts, Creek Nation, Murphy, Blatt, Alito, Carpenter, Stephen Breyer, Elena Kagan, Kagan


Argument analysis: “Contempt of cop” — Justices search for compromise standard for First Amendment retaliatory arrests

In Monday’s argument in Nieves v. Bartlett, the justices pushed all sides for a compromise approach to handle the broad range of cases that might qualify as First Amendment retaliatory arrests, an approach that would neither allow all claims nor defeat all claims. The case arises from the arrest of respondent Russell Bartlett at Alaska’s Arctic Man Festival, which Chief Justice John Roberts described as “10,000 mostly drunk people in the middle of nowhere” patrolled by eight police officers. In ...
Tags: Featured, Supreme Court, Law, Congress, United States, Alaska, Ruth Bader Ginsburg, Wall, Wilson, Sonia Sotomayor, John Roberts, 9th Circuit, Moore, Roberts, Ginsburg, Alito


Argument analysis: Justices poised to allow antitrust dispute against Apple over apps to go forward

The Supreme Court heard oral argument this morning in a dispute between technology giant Apple and a group of iPhone users over the sale of apps from Apple’s App Store. The iPhone users are seeking massive damages from Apple, complaining that the company is violating federal antitrust laws by requiring the users to buy apps exclusively from the App Store. But as it comes to the justices, the case is about whether the iPhone users can bring their lawsuit at all: Apple contends that they cannot, b...
Tags: Apple, Featured, Supreme Court, Law, Congress, United States, Illinois, Wall, Sonia Sotomayor, John Roberts, Howe, Alito, Joe Smith, Sotomayor, Stephen Breyer, Breyer