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SCOTUS Orders 3/2/2015

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by Publius
Posted March 02, 2015, 11:43 AM

Today the Court granted cert in two cases. The order list is here.  The Court has not yet announced the release of opinions this week, but an opinionless week at this point in the term would be unusual so we'll be keeping any eye out.

(1) Ocasio v. United States: Whether a conspiracy to commit extortion requires that the conspirators agree to obtain property from someone outside the conspiracy.

(2) Hawkins v. Community Bank of Raymore: (1) Whether “primarily and unconditionally liable” spousal guarantors are unambiguously excluded from being Equal Credit Opportunity Act (ECOA) “applicants” because they are not integrally part of “any aspect of a credit transaction”; and (2) whether the Federal Reserve Board has authority under the ECOA to include by regulation spousal guarantors as “applicants” to further the purposes of eliminating discrimination against married women.

Categories: SCOTUSreport

SCOTUS Opinions 2/25/2015

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by Publius
Posted February 25, 2015, 10:47 AM

SCOTUS Opinion 2/25/2015Today the Supreme Court decided two cases:

(1)  First is the Florida grouper/Sarbanes Oxley case, Yates v. United States.  Yates won a reversal of the conviction he had challenged, by a vote of 5-4, but without a majority opinion.

To prevent federal authorities from confirming that he had harvested undersized grouper, Yates ordered crew to toss the suspect catch back into the sea.  He was charged and convicted under several provisions of federal law, including the Sarbanes Oxley prohibition on destruction of "tangible object[s]" with intent to impede a federal investigation (18 USC 1519).  The Eleventh Circuit affirmed on the grounds that a fish was a "tangible object" within the meaning of the statute.

The Supreme Court reversed the judgment of the Eleventh Circuit and remanded the case for further proceedings, but with no majority opinion.  Justice Ginsburg announced the judgment of the Court and delivered an opinion joined by the Chief Justice, Justice Breyer, and Justice Sotomayor. The plurality concluded that dictionary definitions were not dispositive here, that traditional tools of statutory interpretation counseled against an aggressive interpretation of "tangible object," and that if any doubt remained it would be appropriate to invoke the rule of lenity.

Justice Alito concurred in the judgment, providing the necessary fifth vote to reverse, but on narrower grounds: "[T]raditional tools of statutory construction confirm that John Yates has the better of the argument. Three features of 18 U. S. C. §1519 stand out to me: the statute’s list of nouns, its list of verbs, and its title. Although perhaps none of these features by itself would tip the case in favor of Yates, the three combined do so."

Justice Kagan filed a dissenting opinion, joined by Justices Scalia, Kennedy and Thomas.  Citations include the work of Dr. Seuss: "While the plurality starts its analysis with §1519's heading...I would begin with §1519’s text. When Congress has not supplied a definition, we generally give a statutory term its ordinary meaning. See, e.g., Schindler Elevator Corp v. United States ex rel. Kirk, 563 U. S. ___, ___ (2011) (slip op., at 5). As the plurality must acknowledge, the ordinary meaning of “tangible object” is “a discrete thing thatpossesses physical form.” Ante, at 7 (punctuation andcitation omitted). A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960). So the ordinary meaning of the term “tangible object” in §1519, as noone here disputes, covers fish (including too-small red grouper)."

(2) Second was North Carolina Bd. of Dental Examiners v. FTC.  By a vote of 6-3, the FTC prevailed.

Per Justice Kennedy's opinion for the Court, which was joined by the Chief Justice and Justices Ginsburg, Breyer, Sotomayor and Kagan:

"This case arises from an antitrust challenge to the actions of a state regulatory board. A majority of the board’s members are engaged in the active practice of the profession it regulates. The question is whether the board’s actions are protected from Sherman Act regulation under the doctrine of state-action antitrust immunity....The Sherman Act protects competition while also respecting federalism. It does not authorize the States to abandon markets to the unsupervised control of active market participants, whether trade associations or hybrid agencies. If a State wants to rely on active market participants as regulators, it must provide active supervision if state-action immunity under Parker is to be invoked. The judgment of the Court of Appeals for the Fourth Circuit [(upholding the FTC judgment against the Board)] is affirmed."

Justice Alito filed a dissenting opinion, which was joined by Justices Scalia and Thomas.

Categories: SCOTUSreport

SCOTUS Opinion 2/24/2015

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by Publius
Posted February 24, 2015, 11:27 AM

SCOTUS Opinion 2/24/2015The Supreme Court released one opinion today:

Kansas v. Nebraska

The question in this case was whether Nebraska violated a compact apportioning the waters of the Republican River between Kansas, Nebraska, and Colorado; if so, what relief is appropriate to remedy the violation.

In an original opinion delivered by Justice Kagan, the Court agreed with the Special Master's conclusion that Nebraska "knowingly failed" to comply with its obligations under the Final Settlement Stipulation and adopted his recommendations that Nebraska pay Kansas 1.8 million in disgorgement and that Kansas's request for injunctive relief be denied.

Per Justice Kagan, "...we agree with the Master’s conclusion that Nebraska 'knowingly exposed Kansas to a substantial risk' of receiving less water than the Compact provided, and so 'knowingly failed' to comply with the obligations that agreement imposed...In such circumstances, a disgorgement award appropriately reminds Nebraska of its legal obligations, deters future violations, and promotes the Compact’s successful administration" The Court rejected Kansas's request for an injunction ordering Nebraska to adhere to the Compact and Settlement. Per Kagan, "Kansas wants such an order so that it can seek contempt sanctions against Nebraska for any future breach...But we agree with the Master that Kansas has failed to show, as it must to obtain an injunction, a 'cognizable danger of recurrent violation.'"

Justices Kennedy, Ginsburg, Breyer, and Sotomayor joined the opinion of the Court. Chief Justice Roberts joined as to Parts I and III. Chief Justice Roberts and Justice Scalia filed opinions concurring in part and dissenting in part. Justice Thomas filed an opinion concurring in part and dissenting in part, which Justices Scalia and Alito joined and which Chief Justice Roberts joined as to Part III.

Categories: SCOTUSreport

SCOTUS Opinion 1/26/2015

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by Publius
Posted January 26, 2015, 10:18 AM

SCOTUS Opinion 1/26/2015The Supreme Court released one opinion this morning:

M & G Polymers USA v. Tackett: In an opinion by Justice Thomas, a unanimous Court held that the Sixth Circuit erred in reasoning that collective bargaining agreements created a right to lifetime contribution-free health care benefits for retirees, their surviving spouses, and their dependents. The judgment of the Sixth Circuit was vacated and the case remanded for application of ordinary principles of contract law.  Per Justice Thomas for the Court:

"This case arises out of a disagreement between a group of retired employees and their former employer about the meaning of certain expired collective-bargaining agreements. The retirees (and their former union) claim that these agreements created a right to lifetime contribution-free health care benefits for retirees, their surviving spouses, and their dependents. The employer, for its part, claims that those provisions terminated when the agreements expired. The United States Court of Appeals for the Sixth Circuit sided with the retirees, relying on its conclusion in International Union, United Auto, Aerospace, & Agricultural Implement Workers of Am. v. Yard-Man, Inc., 716 F. 2d 1476, 1479 (1983), that retiree health care benefits are unlikely to be left up to future negotiations. We granted certiorari and now conclude that such reasoning is incompatible with ordinary principles of contract law. We therefore vacate the judgment of the Court of Appeals and remand for it to apply ordinary principles of contract law in the first instance."

Justice Ginsburg filed a concurring opinion, which was joined by Justices Breyer, Sotomayor, and Kagan, suggesting that the employer was not necessarily certain to win on remand.

Categories: SCOTUSreport

SCOTUS Opinions 1/21/2015

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by Publius
Posted January 21, 2015, 11:04 AM

SCOTUS Opinions 1/21/2015The Supreme Court released three opinions this morning:

(1) Hana Financial v. Hana Bank: In an opinion by Justice Sotomayor, the Court held unanimously that the question whether two trademarks may be tacked for purposes of determining priority is a question for the jury. The judgment of the Ninth Circuit was affirmed.  Per Justice Sotomayor:

​"​Rights in a trademark are determined by the date of the​ ​mark’s first use in commerce. The party who first uses a​ ​mark in commerce is said to have priority over other​ ​users. Recognizing that trademark users ought to be​ ​permitted to make certain mo​​difications to their marks​ ​over time without losing priority, lower courts have provided that, in limited circumstances, a party may clothe a​ ​new mark with the priority position of an older mark.​ ​This doctrine is called “tacking,” and lower courts have​ ​found tacking to be available when the original and revised marks are “legal equivalents” in that they create th​e​ same, continuing commercial impression. The question​ ​presented here is whether a judge or a jury should determine whether tacking is available in a given case. Because the tacking inquiry operates from the perspective of​ ​an ordinary purchaser or consumer, we hold that a jury​ ​should make this determination.​"​

(2) Gelboim v. Bank of America: In an opinion by Justice Ginsburg, the Court held unanimously that a lower court order dismissing petitioners' case in its entirety removed petitioners from the consolidated multidistrict litigation proceeding, thereby triggering their right to appeal under §1291. The judgment of the Second Circuit was reversed and the case remanded. Per Justice Ginsburg:

​"​An unsuccessful litigant in a federal district court may​ ​take an appeal, as a matter of right, from a “final decisio[n] of the district cour[t].” 28 U. S. C. §1291. The question here presented: Is the right to appeal secured by​ ​§1291 affected when a case is consolidated for pretrial​ ​proceedings in multidistrict litigation (or MDL) authorized​ ​by 28 U. S. C. §1407?​....The Court of Appeals for the Second Circuit, acting on​ ​its own motion, dismissed the appeal filed by​ [petitioners]​ for want of appellate jurisdiction. We reverse the​ ​Second Circuit’s judgment and hold that the ​petitioners' complaint retained its independent status for​ ​purposes of appellate jurisdiction under §1291. Petitioners’ right to appeal ripened when the District Court dismissed their case, not upon eventual completion of multi​district proceedings in all of the consolidated cases.​"​

(3) Dep't of Homeland Security v. MacLean: In an opinion by Chief Justice Roberts, the Court held by a vote of 7-2 that federal air marshal MacLean's disclosure was not "specifically prohibited by law." The judgment of the Federal Circuit was affirmed. Per the Chief Justice:

​"​Federal law generally provides whistleblower protections to an employee who discloses information revealing​ ​“any violation of any law, rule, or regulation,” or “a substantial and specific danger to public health or safety.” 5​ ​U.​ ​S. C. §2302(b)(8)(A). An exception exists, however, for​ ​disclosures that are “specifically prohibited by law.”​ ​Ibid.​ ​Here, a federal air marshal publicly disclosed that the​ ​Transportation Security Administration (TSA) had decided to cut costs by removing air​ ​marshals from certain​ ​long-distance flights. The​ ​question presented is whether​ ​that disclosure was “specifically prohibited by law.”​"​ ​According to the majority, the disclosure was prohibited neither by TSA regulations on sensitive security information​ (because they did not count as "law" for purposes of the statute in question), nor by the statutory provision that empowers the TSA to prescribe regulations on information disclosure.  Concerns regarding public endangerment as a result of whistleblower disclosures, while legitimate, must be addressed by Congress or the President, not the Court.

Justice Sotomayor dissented, joined by Justice Kennedy.

Categories: SCOTUSreport

SCOTUS Opinions 1/20/15: Holt v. Hobbs & Teva Pharmaceuticals v. Sandoz

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by Publius
Posted January 20, 2015, 12:37 PM

SCOTUS Opinion 1/20/15The Court today issued two merits opinions separately from the order list:

(1)  Holt v. Hobbs, with Justice Alito issuing the opinion for a unanimous Court.  The Court held that an Arkansas correctional policy requiring a Muslim inmate to shave his 1/2 inch beard violated the federal RLUIPA statute.  The Eighth Circuit was reversed and the case remanded for further proceedings:

​"​Petitioner Gregory Holt, also known as Abdul Maalik​ ​Muhammad, is an Arkansas inmate and a devout Muslim​ ​who wishes to grow a​ 1/2​-inch beard in accordance with his​ ​religious beliefs. Petitioner’s objection to shaving his​ ​beard clashes with the Arkansas Department of Correction’s grooming policy, which prohibits inmates from​ ​growing beards unless they have a particular dermatological condition. We hold that the Department’s policy, as​ ​applied in this case, violates the Religious Land Use and​ ​Institutionalized Persons Act of 2000 (RLUIPA)​...which prohibits a state​ ​or local government from taking any action that substantially burdens the religious exercise of an institutionalized​ ​person unless the government demonstrates that the​ ​action constitutes the least restrictive means of furthering​ ​a compelling governmental interest. We conclude in this case that the Department's policy substantially burdens petitioner's religious exercise.​ Although we do not question the importance of the Department’s interests in stopping the flow of​ ​contraband​ ​and facilitating prisoner identification, we do doubt​ ​whether the prohibition against petitioner’s beard furthers​ ​its compelling interest about contraband. And we conclude that the Department has failed to show that its​ ​policy is the least restrictive​ ​means of furthering its compelling interests. We thus reverse the decision of the​ ​United States Court of Appeals for the​ ​Eighth Circuit.​"​

​Justice Ginsburg filed a concurring opinion in which Justice Sotomayor joined, and Justice Sotomayor also filed a concurring opinion.​

​(2) Teva Pharmaceuticals USA v. Sandoz with Justice Breyer issuing the opinion of the Court and holding that a clear error rather than de novo standard applies to appellate review of a trial court's resolution of subsidiary factual matters in the course of construing a patent claim.  By a vote of ​7-2 the decision of the Federal Circuit is vacated and remanded:

​"​I​n ​Markman​ ​v.​ ​Westview Instruments, Inc., 517 U. S.​ ​370 (1996), we explained that a patent claim is that “por­tion of the patent document that defines the scope of the​ ​patentee’s rights.”​ ​Id.,​ ​at 372. We held that “the con­​​struction of a patent, including terms of art within its​ ​claim,” is not for a jury but “exclusively” for “the court” to​ ​determine.​ ​Ibid. That is so even where the construction​ ​of a term of art has “evidentiary underpinnings.”​ ​Id.,​ ​at​ ​390.​ ​Today’s case involves claim​ ​construction with “eviden­tiary underpinnings.​"...​And, it requires​ ​us to determine what standard the Court of Appeals​ ​should use when it reviews a trial judge’s resolution of an​ ​underlying factual dispute. Should the Court of Appeals​ ​review the district court’s factfinding​ ​de novo​ ​as it would​ ​review a question of law? Or, should it review that factfinding as it would review a trial judge’s factfinding in​ ​other cases, namely by taking​ ​them as correct “unless​ ​clearly erroneous?” See Fed. Rule Civ. Proc. 52(a)(6). We​ ​hold that the appellate court must apply a “clear error,”​ not a de novo, standard of review."

​Justice Breyer's opinion for the Court was joined by all justices except Thomas and Alito.  Justice Thomas filed a dissenting opinion in which Justice Alito joined.

Categories: SCOTUSreport

SCOTUS Opinions 1/14/2015

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by Publius
Posted January 14, 2015, 10:39 AM

SCOTUS Opinions 1/14/2015The Court issued two opinions today:

(1) T-Mobile South, LLC v. City of Roswell. (Telecomms case)  By a vote of 6-3 the judgment of the Eleventh Circuit is reversed and the case remanded. The issue and outcome are summarized in the opening paragraph of Justice Sotomayor's opinion for the Court:

"The Telecommunications Act of 1996 provides, in relevant part, that '[a]ny decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.' 110 Stat. 151, 47 U. S. C. §332(c)(7)(B)(iii). The question presented is whether, and in what form, localities must provide reasons when they deny telecommunication companies’ applications to construct cell phone towers. We hold that localities must provide or make available their reasons, but that those reasons need not appear in the written denial letter or notice provided by the locality. Instead, the locality’s reasons may appear in some other written record so long as the reasons are sufficiently clear and are provided or made accessible to the applicant essentially contemporaneously with the written denial letter or notice."

Justice Sotomayor was joined by Justices Scalia, Kennedy, Breyer, Alito, and Kagan.  Justice Alito also filed a concurring opinion.  Chief Justice Roberts dissented, joined by Justice Ginsburg, and by Justice Thomas as to Part I.  Justice Thomas also filed a separate dissenting opinion.

(2) Jennings v. Stephens. (Habeas case).  By a vote of 6-3, the judgment of the Fifth Circuit is reversed and the case remanded. Justice Scalia delivered the opinion of the Court, compressed here into the following summary:

"Petitioner Robert Mitchell Jennings was sentenced to death for capital murder. He applied for federal habeas corpus relief on three theories of ineffective assistance of counsel, prevailing on two. The State appealed, and Jennings defended his writ on all three theories. We consider whether Jennings was permitted to pursue the theory that the District Court had rejected without taking a cross-appeal or obtaining a certificate of appealability....[A]n appellee who does not cross-appeal may not “attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary....Since Jennings did not cross-appeal the denial of his Spisak theory [rejected below], we must determine whether urging that theory sought to enlarge his rights or lessen the State’s under the District Court’s judgment granting habeas relief....Because Jennings’ Spisak theory would neither have enlarged his rights nor diminished the State’s rights under the District Court’s judgment, he was required neither to take a cross-appeal nor to obtain a certificate of appealability. We reverse the judgment of the Fifth Circuit and remand the case for consideration of Jennings’ Spisak claim."

Justice Scalia was joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan.  Justice Thomas filed a dissenting opinion, which Justices Kennedy and Alito joined.

Categories: SCOTUSreport

SCOTUS Orders: One Grant (Two Consolidated Cases), One Per Curiam Opinion

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by Publius
Posted November 17, 2014, 10:02 AM

SCOTUS Orders: One Grant (Two Consolidated Cases), One Per Curiam OpinionThe Order List is here.

(1) The Court granted cert today in Bank of America v. Caulkett and Bank of America v. Toledo-Cardona.  The question presented in those cases is: "Whether, under Section 506(d) of the Bankruptcy Code, which provides that “[t]o the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void,” a Chapter 7 debtor may “strip off” a junior mortgage lien in its entirety when the outstanding debt owed to a senior lienholder exceeds the current value of the collateral."

(2) The motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument was granted in several cases: B&B Hardware v. Hargus Indus., Alabama Dept of Revenue v. CSX Transp., and Hana Financial v. Hana Bank.

(3) Prof. Jeffrey Fisher (Stanford) was appointed counsel in Ohio v. Clark.

(4) The Court issued a per curiam opinion reversing the Ninth Circuit in Glebe v. Frost, a habeas case.  Frost had been convicted of several bank robberies but argued that his state trial court improperly forced him to chose between a theory of duress and contesting criminal liability.  The state supreme court (Washington) agreed, but deemed the error non-structural and ultimately harmless in light of the evidence presented and the proper jury instructions issued.  The District Court dismissed Glebe's habeas petition but the Ninth Circuit reversed, finding structural error  Per SCOTUS' reversal of the Ninth Circuit today:

"Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the Court of Appeals had power to grant Frost habeas corpus only if the Washington Supreme Court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U. S. C. §2254(d). Here, the Ninth Circuit held that the Washington Supreme Court unreasonably applied clearly established federal law by failing to classify the trial court’s restriction of closing argument as structural error. That decision cannot stand. Assuming for argument’s sake that the trial court violated the Constitution, it was not clearly established that its mistake ranked as structural error. Most constitutional mistakes call for reversal only if the government cannot demonstrate harmlessness. Neder v. United States, 527 U. S. 1, 8 (1999). Only the rare type of error—in general, one that “‘infect[s] the entire trial process’” and “‘necessarily render[s] [it] fundamentally unfair’”—requires automatic reversal. Ibid. None of our cases clearly requires placing improper restriction of closing argument in this narrow category."

Categories: SCOTUSreport

SCOTUS Orders: No new grants, one original action, no action on King v. Burwell

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by Publius
Posted November 03, 2014, 10:35 AM

SCOTUS OrdersThere were no new cert grants today (though the Court did grant the filing of a complaint in an original action involving the states of Florida and Georgia, see below).  No action was taken on the latest Affordable Care Act case (King v. Burwell)--the Court may be waiting to see what the DC Circuit does en banc. The order list is here.

There were a few notable orders in pending cases:

1) Texas v. New Mexico (original action): A. Gregory Grimsal was appointed special master

2) Florida v. Georgia (original action): Florida's motion for leave to file a bill of complaint was granted.  The question presented is whether Florida is entitled to equitable apportionment of the waters of the Apalachicola-Chattahoochee-Flint River Basin and appropriate injunctive relief against Georgia to sustain an adequate flow of fresh water into the Apalachicola Region.

3) Young v. UPS:  Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument is granted.  The question presented in this case is whether, and in what circumstances, the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”

Notable cert denials included: The Episcopal Church v. The Episcopal Diocese of Fort Worth:  Questions presented: (1) Whether the First Amendment or Jones v. Wolf requires courts to enforce express trusts recited in general-church governing documents (as some jurisdictions hold), or whether such a trust is enforceable only when it would otherwise comply with state law (as others hold); (2) whether retroactive application of the neutral-principles approach infringes free-exercise rights; and (3) whether the neutral-principles approach endorsed in Jones remains a constitutionally viable means of resolving church-property disputes, especially in light of Hosanna-Tabor v. EEOC.

Categories: SCOTUSreport

New Post-Decision SCOTUScast: Halliburton Co. v. Erica P. John Fund, Inc.

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by SCOTUScaster
Posted July 23, 2014, 1:31 PM

On June 23, 2014, the Supreme Court issued its opinion in Halliburton Co. v. Erica P. John Fund, Inc. This case presented two questions. The first was whether the Supreme Court should overrule or modify its decision in Basic Inc. v. Levinson, to the extent that it recognizes a presumption of classwide reliance derived from the “fraud-on-the market theory,” which posits that a company’s material misrepresentation regarding a security traded in the open market that affects the price of the security is presumed to have been relied on by a plaintiff who purchased the security and suffered a loss; and second whether, in a case where the plaintiff invokes the presumption of reliance to seek class certification, the defendant may rebut the presumption and prevent class certification by introducing evidence that the alleged misrepresentations did not distort the market price of its stock.

In a unanimous opinion delivered by Chief Justice John Roberts, the Court noted that under section 10(b) of the Securities Exchange Act of 1934 and the SEC’s rule 10(b)(5), investors can recover damages in a private securities fraud action only if they prove that they relied on the defendant's misrepresentation in deciding to buy or sell a company's stock. In Basic, the Court held that investors could satisfy this reliance requirement by invoking a presumption that the price of stock traded in an efficient market reflects all public, material information-including material misstatements. Given that Congress can change the law, Halliburton failed to provide the “special justification” necessary for the Court to overrule its prior decision in a statutory case. For the same reason, class action plaintiffs may rely on the Basic presumption to avoid having to directly prove in the first instance that the misrepresentation affected the stock price at the class certification stage. But nothing in Basic or any other Supreme Court decision prevents defendants from defeating this presumption at the class certification stage through evidence that the misrepresentation did not in fact affect the stock price, and courts should give them the opportunity to do so. The Court vacated and remanded the decision of the Fifth Circuit.

To discuss the case, we have Adam Pritchard, who is the Frances and George Skestos Professor of Law at the University of Michigan School of Law.

Click here to view this article on the source site »

Categories: SCOTUSreport

Is Stanley Fish a Generation Behind on Textualism?

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by Publius
Posted July 20, 2012, 9:28 AM

At FedSoc's SCOTUSreport site, John Ohlendorf, an Olin-Searle-Smith Fellow at Northwestern University School of Law, responds to Stanley Fish's recent review of Reading Law, a new book Justice Scalia and Bryan A. Garner.  Ohlendorf writes:

Despite his qualms about [Reading Law's] central position, Fish has high praise for the book, which he calls entertaining and “wonderful.” Along the way, he also dispatches Living Constitutionalism as “a form of political gerrymandering rather than as a form of interpretation.”

In this post, I’d like to respond to Fish’s critique. In brief, Fish articulates two lines of attack: 1) Statutory meaning is not “‘in the text’ in the sense Scalia and Garner insist on,” and 2) All interpretation “begins and ends” with “the assumption or specification of an intention without which there would be no text . . . .” Both arguments draw on Fish’s influential body of scholarship dating back to the 1970s; both arguments show their age. The first argument has teeth only against an archaic version of statutory formalism that has been roundly rejected by modern textualists; the second has little relevance to the “second generation” of textualism that has emerged over the last decade. . . .

Read the full post here.

Categories: SCOTUSreport

Did Roberts Underestimate the Effect of His Decision on Medicaid?

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by Publius
Posted July 12, 2012, 4:14 PM

At SCOTUSreport, Steven Teles--professor political science at Johns Hopkins and author of The Rise of the Conservative Legal Movement--points to what he believes is a largely neglected aspect of Chief Justice Roberts' decision in the ACA case:

the Medicaid part of the decision, which was probably extracted from some of the liberals as Roberts’ pound of flesh for upholding the mandate, really is a big deal in raw policy terms. At least in the short term, it really throws a monkey wrench in the basic structure of Obamacare, although I’m not quite sure that Roberts appreciated how much. Expansion of Medicaid is, at least in the short term, the most important mechanism in the law for getting to universal coverage, and it would have its greatest impact on reducing the uninsured in states with relatively stingy Medicaid eligibility (like Texas and Florida)—the same states that are now threatening not to participate. That creates a potentially very weird vacuum in those states, between the very poor (and, remember, senior citizens in nursing homes) on traditional Medicaid and those higher up the income scale who will be in the exchanges. You could solve that problem by pulling those who would have been in expanded Medicaid into the exchanges, but I’m not 100% sure that HHS will be able to get away with doing so. Furthermore, the structure of federal-state aid conditionality is at the core of how we’ve chosen to organize a big chunk of the American welfare and regulatory state. While I’m sympathetic to Michael Greve’s argument in his recent, fantastic book The Upside Down Constitution, that this structure is deeply screwed up, it is also quite deeply embedded. If Roberts is using the decision in NFIB v. Sibelius to open up a broader reassessment of federal grants, that would be a very, very big deal.

 

Categories: SCOTUSreport

Is the Criticism of Citizens United Manufactured Hysteria?

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by Publius
Posted July 12, 2012, 7:47 AM

Professor John McGinnins writes at FedSoc's SCOTUSreport:

 

Critics of Citizens United have intimated that it will result in a huge increase of for-profit corporate independent expenditures. President Obama played to such fears when he claimed in his 2010 State of the Union address that the decision “opened the floodgate for special interests–including foreign corporations–to spend without limit on our elections.”

At the time, it was widely reported that the president was falsely characterizing the decision: Citizens United did not invalidate prohibitions on campaign expenditures by foreigners, be they individuals or corporations. But it is also now clear that not many for-profit corporations make independent expenditures directly on behalf a candidate. Moreover, for-profit corporations give less than 20% of so-called Super PAC money used for independent expenditures for direct support of candidates. And many, if not most, of these donating corporations appear to be shells for individual contributions.  (In my view, Congress and state legislatures should require such shell corporations to disclose the individuals behind them: Citizens United expressly permits disclosure laws). Publicly traded corporations appear to give less than 0.5% of all Super PAC funds. Thus, the amount of for-profit corporate treasury funds being spent in elections as a result of Citizens United represents a very small portion of total election expenditures. Citizens United has not released a floodgate of for-profit corporate independent expenditures. The president was in this respect no better a pundit than he was a legal analyst.

The New York Times recently reported that corporations are giving more to 501(c)(4) “social welfare” organizations, which can use a portion of their funds to run issue advertisements in elections. But this increase has nothing to do with the doctrine of Citizens United. . . .

Categories: SCOTUSreport

Was Roberts Wrong to Apply the Canon of Constitutional Avoidance to the Mandate?

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by Publius
Posted July 11, 2012, 7:44 AM

At FedSoc's SCOTUSreport, Georgetown law professor Nicholas Quinn Rosenkranz argues that Chief Justice Roberts should not have applied the "canon of constitutional avoidance" to the individual mandate:

In his ACA decision, Chief Justice Roberts concludes that the individual mandate can be sustained as an exercise of the taxing power, even though he concedes that it is read “more naturally as a command to buy insurance than as a tax.”  His key move is an application of the canon of constitutional avoidance, which he explains as follows: “The text of a statute can sometimes have more than one possible meaning. To take a familiar example, a law that reads ‘no vehicles in the park’ might, or might not, ban bicycles in the park. And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so.”

The Chief Justice’s account of the canon is accurate, but his application of it is exceedingly odd. The canon applies when a statute is ambiguous—when it can plausibly be read to mean two different things. . . . But the individual mandate is not ambiguous in the same sense that “vehicle” is ambiguous. . . . 

Whether the individual mandate is called a “penalty” or a “tax,” it means what it means and requires what it requires.

So when the Chief Justice “interprets” the mandate to be a tax, this is not interpretation in the ordinary sense.  This is, in reality, an issue, not of statutory interpretation, but of constitutional characterization. . . .

You can read is full post here.

Categories: SCOTUSreport

Citizens United—The Most Important Decision of the Roberts Court?

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by Publius
Posted July 10, 2012, 8:59 AM

At SCOTUSreport, Northwestern University law professor John McGinns discusses what he sees as the most important decisions by the Supreme Court under Chief Justice Roberts.  His post begins:

Although it might not be widely recognized, the most important decisions of the Roberts Court to date have been Citizens United v. FEC and American Tradition Partnership v.  Bullock, the case decided in June that reaffirmed Citizens.  Their importance does not lie in what President Obama and much of the press emphasize about them.  The portion of their holdings that permits for-profit corporations to spend money directly advocating the election or defeat of candidates has had little effect on political campaigns. Instead what is crucial about the decisions is that five justices on the Court analyzed political speech at election time through the prism of ordinary First Amendment principles.  One might not think that development extraordinary, except that the dissenters in these cases and campaign finance “reformers” in general want to place election campaigns outside the ordinary protections of the First Amendment.

At stake is nothing less than how much information voters will get and thus how sound our political decisions will be in the long run. . . .

Categories: SCOTUSreport

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