Argument transcripts
The transcript of oral argument in Frank v. Gaos is available on the Supreme Court’s website; the transcript in Jam v. International Finance Corp. is also available.
October 2018 Archive
Showing 1–50 of 117 items published in October 2018, most recent first.
Argument analysis: Justices conflicted in clash between fuel tax and Yakama Treaty
The oral argument on Tuesday in Washington State Department of Licensing v. Cougar Den Inc. showed yet again that federal Indian law cases often diverge from familiar progressive-conservative divides.
Argument analysis: Court skeptical that a lawyer may unilaterally countermand client’s instruction to file a criminal appeal
Following Tuesday morning’s argument in Garza v. Idaho, it seems more likely than not that petitioner Gilberto Garza Jr. will get the specific relief he seeks: the reinstatement of his appeal from convictions entered under a plea agreement that contained a waiver of his right to appeal.
Argument preview: Justices consider cap on attorney’s fees for successful representation of Social Security disability claimants (Corrected)
Attorney Richard Culbertson successfully represented several Social Security disability claimants both before the Social Security Administration and in federal court.
Wednesday round-up
This morning the justices wind up the first week of the November sitting with two oral arguments. In the first case, Frank v. Gaos, the court has been asked to make it harder for companies to settle class-action lawsuits without providing direct compensation to class members, through a process known as “cy pres.” Ronald Mann previewed the case for this blog.
OT2018 #5: “Arbitration Nation”
This episode is late, but we have a good reason. We get up to speed on Supreme Court news, as well as some grants with truly great and truly terrible case names. Then, we turn to the week’s arguments, making you an expert in all things arbitration.
Argument preview: Justices to consider another lethal-injection challenge, this time by inmate with complicated medical history
Next week the Supreme Court will hear oral argument in the case of Russell Bucklew, a Missouri death-row inmate who argues that the state’s plan to execute him by lethal injection violates the Constitution’s ban on cruel and unusual punishment because he suffers from a rare medical condition that could lead to his gagging on his own blood.
Relist Watch
John Elwood reviews Monday’s relists. We at Relist Watch tend to prefer the obscure to the obvious – we like the shadow docket shadowy. So we are not going to start this week’s edition talking about such subjects as the three new cases the Supreme Court agreed to review from among last week’s relists.
Argument analysis: Court quiet, but potentially skeptical, on immunity for international organizations
The Supreme Court heard oral argument this morning in a dispute over immunity for the International Finance Corporation, an international organization that makes loans to private businesses to finance projects in developing countries.
Empirical SCOTUS
Empirical SCOTUS: With a little help from academic scholarship
Judges’ citations tell a lot about their dispositions. We can glean relationships between cases, judges’ perspectives on these cases and judges’ relationships with other judges based on case citations.
Argument preview: Please tax me more?
At first glance, BNSF Railway Co. v. Loos looks like an utterly unremarkable case on the docket for the Supreme Court’s November sitting. The petitioner is a frequent litigant before the court; the statute at issue (the Railroad Retirement Tax Act) is frequently litigated; and the amount in controversy ($3,765) is piddling by Supreme Court standards.
Argument analysis: Justices signal opposition to vague exceptions that would limit enforceability of arbitration agreements
The November argument session brought the justices back once again to the Federal Arbitration Act, with a pair of cases on the topic — Henry Schein Inc. v. Archer & White Sales Inc. and Lamps Plus Inc. v. Varela.
Argument analysis: The familiar divide in arbitration cases re-emerges
The Supreme Court’s conservative majority has been consistently skeptical of arguments that individual consumers or employees who have agreed to bring their legal claims in arbitration have a right to do so on an aggregated basis, such as in a class action.
Argument transcripts
The transcript of oral argument in Washington State Department of Licensing v. Cougar Den Inc. is available on the Supreme Court’s website; the transcript in Garza v. Idaho is also available.
Petitions of the week
This week we highlight petitions pending before the Supreme Court that address the requirements a defendant must satisfy to establish a violation of Brady v. Maryland, the application of United States v. Salerno to deny bail to an arrestee when a judge finds clear proof the arrestee committed sexual assault, and the classification of patent eligibility as a question of law or a question of fact.
Tuesday round-up
This morning, the justices will hear oral argument in two cases. First up is Washington State Department of Licensing v. Cougar Den Inc., which asks whether an 1855 treaty created a right for members of an Indian tribe to avoid taxes on off-reservation commercial activities that involve travel on public highways.
Argument preview: Justices may consider role of legislative motive in pre-emption analysis
On November 5, the Supreme Court will hear oral argument in Virginia Uranium, Inc. v. Warren, which could test the extent to which a court will explore a state legislature’s motives when evaluating whether a state statute is pre-empted by federal law.
Monday round-up
This morning the Supreme Court will kick off its November argument session with two arbitration cases. In Henry Schein, Inc. v. Archer & White Sales, Inc., the justices will consider whether a judge or an arbitrator should decide if a particular dispute should be resolved in arbitration rather than in court.
Argument transcripts
The transcript of oral argument in Henry Schein Inc. v. Archer and White Sales Inc. is available on the Supreme Court website; the transcript in Lamps Plus Inc. v. Varela is also available.
Argument preview: Can a hovercraft navigate the shoals of Yukon-Charley?
“Alaska is different.” So said Chief Justice John Roberts when the U.S. Supreme Court last took up this case two years ago in Sturgeon v. Frost (Sturgeon I).
Two new CVSGs, Sotomayor criticizes trial court in capital case
This morning the Supreme Court issued additional orders from last Friday’s conference. The justices had announced three new grants from that conference on Friday, and (as expected) they did not add any more cases to their merits docket today.
Federal government returns in census deposition dispute
The federal government returned to the Supreme Court tonight, asking the justices to intervene once again in a dispute over the Trump administration’s decision to reinstate a question about citizenship on the 2020 census.
This week at the court
The Supreme Court released orders from the October 26 conference on Monday; the justices called for the views of the U.S. solicitor general in Swartz v. Rodriguez and Ariosa Diagnostics Inc. v. Illumina Inc. On Monday, the justices heard oral argument in Henry Schein Inc. v. Archer and White Sales Inc. and Lamps Plus Inc. v. Varela.
Friday round-up
Briefly: For USA Today, Richard Wolf reports that “[c]ases challenging the timing, methods, funding and providers of abortion are headed inexorably toward the high court at a time when Chief Justice John Roberts and his colleagues are seeking a lower profile.” At Law.com, Tony Mauro reports that
Justices add three new cases to this term’s docket
This afternoon the justices announced that they had granted review in three new cases, involving issues ranging from patent and bankruptcy law to the federal law governing sex offenders.
Thursday round-up
Briefly: At Law.com, Erin Mulvaney reports that the “Justice Department told the U.S. Supreme Court on Wednesday that transgender workers are not guaranteed federal anti-discrimination protections, arguing against the views of the U.S. Equal Opportunity Commission and marking the latest clash
Event announcement: Georgetown panel on Apple v. Pepper
On Tuesday, October 30, at 12 p.m. EST in Washington, D.C., the Institute for Technology Law & Policy at Georgetown Law will host a panel entitled “Digital Platforms & The Right to Sue: A Discussion of the Supreme Court Case Apple v. Pepper.” The event includes a debate between Noreen Krall and Mark Rifkin, counsel for the petitioner and the respondent, respectively.
Introducing lecture on World War I draft cases, Kagan lauds O’Connor’s work on civics education
Justice Elena Kagan, speaking on Tuesday at the Supreme Court, briefly addressed “the very sad news” that former Justice Sandra Day O’Connor is “retiring from public life because she is in the early stages of dementia.” “In very typical Justice O’Connor fashion,” Kagan continued, “she used this sad
Argument preview: Court to consider immunity for international organizations
Tata Mundra Plant, image by Joe Athialy In recent years, Supreme Court has cut back drastically on lawsuits that seek to hold corporations responsible in U.S. courts for alleged human rights violations abroad.
Argument preview: Justices to consider propriety of “cy pres” class-action settlements
Wednesday morning the newly constituted bench will consider Frank v. Gaos, the first important class-action case of the term. As most readers of this blog will know, the Supreme Court over the last several years has issued a series of major decisions trimming back the availability of class actions, typically by constraining the broad discretion under which district courts traditionally have supervised those cases.
Wednesday round-up
Yesterday, retired Justice Sandra Day O’Connor, the first woman to serve on the Supreme Court, released a letter announcing that she has been diagnosed with dementia and is withdrawing from public life. Amy Howe has this blog‘s coverage, which first appeared at Howe on the Court.
Event announcement: Supreme Court preview in San Francisco
On October 30 at 12:00 p.m. PDT, the Bar Association of San Francisco will host a preview of the Supreme Court’s October 2018 term. Speakers will include Kristin Linsley, Rory Little, Anna-Rose Mathieson and Judge Marsha Berzon of the U.S. Court of Appeals for the 9th Circuit; Ben Feuer will serve as moderator.
Empirical SCOTUS
Empirical SCOTUS: State fault lines that might lead to big cases before the Supreme Court
The Supreme Court currently has 43 arguments scheduled for this term. For the most part, these cases will go under the radar. Even cases with large sets of amicus briefs, usually a good sign of generalized interest in issues, do not have the same blockbuster quality as those of recent terms.
Argument preview: A tax lion in the Cougar Den? — Treaties versus taxes in federal Indian law
Washington State Department of Licensing v. Cougar Den Inc. pits an 1855 treaty against a 2006 state statute designed to avoid tribal tax immunity. Cougar Den, owned by Yakama tribal citizen Kip Ramsey, imports gasoline from Oregon over 27 miles of Washington state highway into the Yakama reservation for sale at Yakama gas stations.
Argument preview: Can a criminal defense lawyer refuse to file an appeal from a guilty plea because of an appeal waiver? (Corrected)
The last few decades have seen a sharp rise in the number of plea bargains. The Supreme Court itself has estimated that 97 percent of federal prosecutions and 94 percent of state prosecutions end in plea bargains.
Justices block Ross deposition in census dispute
The Supreme Court gave the federal government a partial victory tonight in a dispute over discovery in the challenge to the government’s decision to reinstate a question about citizenship on the 2020 census.
Tuesday round-up
Amy Howe reports for this blog that last night the Supreme Court “gave the federal government a partial victory … in a dispute over discovery in the challenge to the government’s decision to reinstate a question about citizenship on the 2020 census” when, “[w]ithout any publicly recorded
O’Connor announces she has dementia (UPDATED)
UPDATE: This post has been updated to include statements from the eight associate justices and three retired justices.
Petitions of the week
This week we highlight petitions pending before the Supreme Court that address the preclusion of legal damages if the equitable defense of unclean hands is asserted; the constitutionality of the Florida Department of Corrections’ ban on Prison Legal News; and the eligibility of a criminal defendant
Monday round-up
On Friday the Supreme Court released its updated list of circuit assignments, indicating which justices are responsible for disposing of emergency applications and other requests from various geographical areas of the country.
First Mondays, OT2018 #4: “This Is About Frogs”
First Mondays is live from Columbia Law School, where we bring in a ringer: Professor Richard Epstein of NYU. He joins us in discussing the frogs of Weyerhaeuser Company v. United States Fish and Wildlife Service and a very mysterious brief in opposition for United States v. Haymond.
Argument preview: Justices to mull who decides whether to arbitrate – the judge or the arbitrator
The November argument session begins with yet another case under the Federal Arbitration Act — Henry Schein Inc. v. Archer & White Sales Inc. With Henry Schein, New Prime Inc. v. Oliveira (from October) and Lamps Plus Inc. v. Varela (later on Monday morning), the court will have three FAA cases under its belt before the first of November – almost a match for the Armed Career Criminal Act!
Argument preview: How should courts decide if parties to an arbitration contract may aggregate their claims?
The law of individual arbitration clauses has been a recent hot topic both in the courts and among the public. That is in part because of one of last term’s blockbuster cases, Epic Systems Corp. v. Lewis, in which the Supreme Court held that individual arbitration clauses in employment contracts were consistent with the National Labor Relations Act, which protects employees’ ability to engage in collective action.
Masterpiece Cakeshop question returns to the Supreme Court
The Supreme Court has once again been asked to weigh in on the case of a baker who refused to make a cake for a same-sex marriage celebration because doing so would violate the baker’s religious beliefs.
This week at the court
On Friday the justices met for their October 26 conference; that afternoon, the justices granted Return Mail Inc. v. United States Postal Service, Mission Product Holdings Inc. v. Tempnology, LLC and United States v. Haymond.
Government returns in climate change lawsuit (UPDATED)
UPDATE: On Friday, October 19, Chief Justice John Roberts put discovery and the trial on hold until the plaintiffs respond to the government’s request and the justices can rule on that request. The plaintiffs’ response is due on Wednesday, October 24, at 3 p.m.
Friday round-up
Yesterday the federal government asked the justices to halt discovery and an upcoming trial in a lawsuit filed by a group of teenagers who allege that the government’s environmental policies are contributing to climate change.
Court issues new circuit assignments
Thirteen days after Brett Kavanaugh was confirmed as the Supreme Court’s newest associate justice, the court today issued a new set of circuit justice assignments, which take effect immediately.
SCOTUS Map: October 2018
The Supreme Court justices strove to calm the frayed nerves of a nation in the aftermath of the Justice Brett Kavanaugh’s tumultuous confirmation fight, attempting to restore a narrative about a nonpartisan and independent court that had been damaged with each twist of the hearings.
Before lecture on war powers, Gorsuch laments public’s lack of knowledge of the judiciary
On Wednesday night, the Supreme Court Historical Society hosted a lecture by Professor Matthew Waxman on Charles Evans Hughes’ evolving thoughts on the flexibility of constitutional restrictions on government during wartime and peacetime.