Federalist Society SCOTUScast

SCOTUScast 6-24-09 featuring Peter Jaffe

info@fed-soc.org — 24 Jun 2009 20:24:45 GMT

On Monday, May 4, the Supreme Court announced its decision in Flores-Figueroa v. United States. In this case, the Supreme Court considered whether a criminal must have known that the ID he was using belonged to another person in order to be convicted of aggravated identity theft for "knowingly us[ing] . . . a means of identification of another person." In a decision delivered by Justice Breyer that drew no dissents, the Court held that, following ordinary English grammar, the statute requires the government to demonstrate that the defendant knew the means of identification to belong to another person, thus reversing the Eighth Circuit decision below. Peter Jaffe discusses the decision.

SCOTUScast 6-23-09 featuring David Stras

info@fed-soc.org — 24 Jun 2009 20:24:46 GMT

On Monday, June 8, the Supreme Court announced its decision in Iraq v. Beaty. In this case, the Supreme Court considered whether the now-repealed state sponsor of terrorism exception to the Foreign Sovereign Immunities Act of 1976 gives American courts jurisdiction to hear cases against the Republic of Iraq involving alleged misdeeds of the Saddam Hussein regime. In a unanimous decision delivered by Justice Scalia, the Court held that the Republic of Iraq is no longer subject to suit in federal court, reversing the DC Circuit decision below. University of Minnesota Law Professor David Stras discusses the decision.

SCOTUScast 6-19-09 featuring Ronald Eisenberg

info@fed-soc.org — 19 Jun 2009 21:44:57 GMT

On Monday, January 26, the Supreme Court announced its decision in Arizona v. Johnson. In this case, the Supreme Court considered whether the pat-down search of a passenger from a vehicle stopped for a minor traffic violation violated the Fourth Amendment’s ban on unreasonable searches and seizures. In a unanimous decision delivered by Justice Ginsburg, the Court held that a pat-down search of a passenger believed to be armed and dangerous does not violate the Fourth Amendment, reversing the Arizona Court of Appeals decision below. Deputy District Attorney Ronald Eisenberg of the Philadelphia District Attorney’s Office discusses the decision.

SCOTUScast 6-17-09 featuring Brian Foster

info@fed-soc.org — 17 Jun 2009 20:48:52 GMT

On Monday, May 4, the Supreme Court announced its decision in Carlsbad Technology v. HIF Bio. In this case, the Supreme Court considered whether appellate review of a federal district court order remanding a case to state court after having declined to exercise supplemental jurisdiction is barred because the order is based on a lack of subject matter jurisdiction. In a unanimous decision delivered by Justice Thomas, the Court held that such a remand order is not based on a lack of subject matter jurisdiction and is therefore reviewable on appeal, reversing the Federal Circuit decision below. Covington & Burling attorney Brian Foster discusses the decision.

SCOTUScast 6-17-09 featuring Michael Rappaport

info@fed-soc.org — 17 Jun 2009 20:47:47 GMT

On Tuesday, May 26, the Supreme Court announced its decision in Montejo v. Louisiana. In this case, the Supreme Court considered whether a criminal defendant is protected by the Sixth Amendment right to counsel when he has not taken any affirmative step to invoke said right and has not indicated his acceptance of his court-appointed attorney. Michigan v. Jackson, the controlling precedent, had assumed that anyone with a court-appointed attorney had already affirmatively invoked their right to counsel, ignoring the fact that many states appoint counsel automatically. Finding that this logic could not be reconciled with the facts of the instant case, the Supreme Court overturned Michigan v. Jackson in a 5-4 decision delivered by Justice Scalia and remanded the case for further proceedings. University of San Diego Law Professor Michael Rappaport discusses the decision.

SCOTUScast 6-17-09 featuring Stephen McAllister

info@fed-soc.org — 17 Jun 2009 20:43:13 GMT

On Monday, January 26, the Supreme Court announced its decision in Van de Kamp v. Goldstein. In this case, the Supreme Court considered whether supervising prosecutors are protected by absolute immunity from liability for purportedly improper training, supervising, or policy-making. In a unanimous decision delivered by Justice Breyer, the Court held that the petitioners were so protected by absolute immunity, thus reversing the Ninth Circuit decision below. Kansas Solicitor General Stephen McAllister discusses the decision.

SCOTUScast 6-17-09 featuring Mark Behrens

info@fed-soc.org — 17 Jun 2009 20:42:19 GMT

On Monday, June 1, the Supreme Court announced its decision in CSX Transportation v. Hensley without having heard oral argument in the case. In a per curiam decision, the Court summarily reversed the Tennessee Court of Appeals, holding that the jury instructions for a five million dollar verdict for fear of cancer damages should have included the "genuine and serious" standard.

SCOTUScast 6-15-09 featuring Steven Calabresi

info@fed-soc.org — 15 Jun 2009 21:58:40 GMT

On Wednesday, May 20, the Supreme Court granted certiorari in Free Enterprise Fund v. Public Company Accounting Oversight Board. In this special cert grant episode of SCOTUScast, we take a look ahead to this important case that the Supreme Court will hear during its October 2009 Term. In this case, the Supreme Court will consider whether the Sarbanes-Oxley Act of 2002 unconstitutionally violated the separation of powers or the appointments clause by granting the Public Company Accounting Oversight Board far-reaching executive power and having its members appointed by the Securities and Exchange Commission and removable only for cause. Northwestern University Law Professor and Federalist Society co-founder Steven Calabresi discusses the case.

SCOTUScast 6-15-09 featuring Samuel Estreicher

info@fed-soc.org — 15 Jun 2009 21:57:19 GMT

On Wednesday, April 1, the Supreme Court announced its decision in 14 Penn Plaza LLC v. Pyett. In this case, the Supreme Court considered whether an arbitration clause in a union-negotiated collective bargaining agreement clearly waiving an employee’s right to a judicial forum for statutory discrimination claims is enforceable. In a 5-4 decision delivered by Justice Thomas, the Court held that such a provision clearly and unmistakably requiring a union member to arbitrate his statutory discrimination claims is enforceable as a matter of federal law, thus reversing the Second Circuit decision below. NYU Law Professor Samuel Estreicher discusses the decision.

SCOTUScast 5-28-09 featuring Michael Rosman

info@fed-soc.org — 28 May 2009 18:03:32 GMT

On Wednesday, April 22, the Supreme Court heard oral argument in Ricci v. DeStefano. The Supreme Court here considers the possibly discriminatory effect of trying to avoid disparate impact liability under Title VII. The petitioners, New Haven firefighters who qualified for promotion under specially-devised promotion exams, filed suit against the City of New Haven in federal District Court because the City failed to certify the results of the exams due to the race of the successful applicants and a fear of liability for a disparate impact suit by minorities who did not qualify to be promoted. The District Court granted summary judgment for the City holding that it was not obligated to certify the exam results. The Second Circuit affirmed this ruling and voted 7-6 against rehearing the case en banc over a spirited dissent. The Supreme Court now considers whether the City of New Haven committed racial discrimination in violation of the Equal Protection Clause or Title VII by rejecting the results of an otherwise valid civil service exam because of the racial distribution of the results. Michael Rosman, General Counsel for the Center for Individual Rights, discusses the case.

SCOTUScast 5-28-09 featuring Luke Milligan

info@fed-soc.org — 28 May 2009 17:43:43 GMT

On Wednesday, January 14, the Supreme Court announced its decision in Herring v. United States. In this case, the Supreme Court considered whether the Fourth Amendment requires the exclusion of evidence seized incident to an arrest conducted on the basis of credible, but ultimately erroneous, information negligently provided by another law enforcement agent. In a 5-4 decision delivered by Chief Justice Roberts, the Court affirmed the Eleventh Circuit ruling, holding that the exclusionary rule does not apply to evidence seized in a search whose unlawful nature was “the result of isolated negligence attenuated from the search.” University of Louisville Professor of Law Luke Milligan discusses the decision.

SCOTUScast 5-27-09 featuring Brian Fitzpatrick

info@fed-soc.org — 27 May 2009 15:23:10 GMT

On Wednesday, January 21, the Supreme Court announced its decision in Fitzgerald v. Barnstable School Committee. In this case, the Supreme Court considered whether Title IX’s implied right of action precludes Section 1983 claims to remedy sex discrimination by federally-funded educational insitutions. In a unanimous decision, the Court held that Title IX does not preclude such Section 1983 claims and therefore remanded the case for further proceedings. Vanderbilt University Law School Professor Brian Fitzpatrick discusses the decision.

SCOTUScast 5-27-09 featuring Shay Dvoretzky

info@fed-soc.org — 27 May 2009 15:21:48 GMT

On Tuesday, March 31, 2009, the Supreme Court heard oral argument in Gross v. FBL Financial Services. The Supreme Court here considers the kind of evidence needed in a case of mixed motive non-Title VII discrimination. Petitioner Jack Gross sued his employer, respondent FBL, under the Age Discrimination in Employment Act, alleging that he was demoted in 2003 on account of his age. The district judge at trial gave a mixed motive instruction under which Gross only had to show that age was a “motivating factor” to prevail, unless FBL could prove it would have made the demotion even without considering his age. The jury found in favor of Gross, but the Eighth Circuit overturned the jury verdict on appeal, reasoning that mixed motive instructions in cases of non-Title VII discrimination can only be given if the plaintiff offers "direct evidence" of discrimination. The Supreme Court now considers what kind of evidence a plaintiff must present to obtain a mixed motive instruction in such cases. Jones Day attorney Shay Dvoretzky discusses the case.

SCOTUScast 5-22-09 - Caperton Debate

info@fed-soc.org — 22 May 2009 20:12:31 GMT

On Tuesday, March 3, the Supreme Court heard oral argument in Caperton v. A.T. Massey Coal Company. The Supreme Court here considers the issue of judicial recusal. The case comes to us from the Supreme Court of Appeals of West Virginia. Massey Energy CEO Don Blankenship spent three million dollars supporting Brent Benjamin’s 2004 campaign for a seat on that court—more than 60% of the total amount spent supporting his campaign. Once on the Supreme Court of Appeals of West Virginia, Justice Benjamin refused to recuse himself from this case and cast the deciding vote to overturn a $50 million jury verdict against A.T. Massey Coal Company, a subsidiary of Massey Energy. Petitioners appealed the case to the United States Supreme Court, which now considers whether Justice Benjamin’s failure to recuse himself from his principal financial supporter’s case violated the Due Process Clause of the Fourteenth Amendment. For this edition of SCOTUScast we have John Shu, an attorney at Stradling, Yocca, Carlson, & Rauth, moderating a discussion between Gibson, Dunn & Crutcher Associate Amir Tayrani on the side of petitioners and Capital University Law Professor Bradley Smith on the side of respondents.

SCOTUScast 5-21-09 featuring Sharon Browne

info@fed-soc.org — 21 May 2009 15:22:03 GMT

On Wednesday, April 29, 2009, the Supreme Court heard oral argument in Northwest Austin Municipal Utility District Number One v. Holder. The Supreme Court here considers Congress’s recent extension of Section 5 of the Voting Rights Act of 1965. This section of the Voting Rights Act was extended for another 25 years in 2006 and requires covered jurisdictions to obtain preclearance from a federal court or the Department of Justice whenever making any changes to voting regulations. Northwest Austin Municipal Utility District Number One is one of the covered jurisdictions and sued in federal District Court to be bailed out from Section 5 coverage, or, failing that, to challenge the 2006 extension of Section 5 as an unconstitutional exercise of Congress’s remedial powers under the Reconstruction Amendments. The District Court held that the Utility District was ineligible to be bailed out from Section 5 coverage because it was not a local jurisdiction that registered voters and upheld the constitutionality of the extension of Section 5. Per a jurisdictional grant of the Voting Rights Act, the Utility District filed its appeal directly with the Supreme Court, which noted jurisdiction in January and now considers the Utility District’s suit to be bailed out or have Section 5 struck down as unconstitutional. Sharon Browne, a principal attorney at the Pacific Legal Foundation, discusses the case.

SCOTUScast 5-20-09 featuring Betsy Dorminey

info@fed-soc.org — 20 May 2009 16:43:14 GMT

On Monday, May 18, the Supreme Court announced its decision in AT&T v. Hulteen. In this case, the Supreme Court considered whether employers violate Title VII by not restoring service credit lost while taking pregnancy leave under lawful pre-Pregnancy Discrimination Act policies. In a 7-2 decision delivered by Justice Souter, the Court held that AT&T’s pension benefit calculation rule does not constitute a violation of Title VII, thus reversing the Ninth Circuit decision below. Betsy Dorminey, Of Counsel with Wimberly, Lawson, Steckel, Schneider & Stine P.C. in Atlanta, discusses the decision.

SCOTUScast 5-11-09 featuring Lee Casey

info@fed-soc.org — 11 May 2009 20:18:29 GMT

On Tuesday, December 2, the Supreme Court announced its decision in Hedgpeth v. Pulido, and on Wednesday, January 21, the Supreme Court announced its decision in Waddington v. Sarausad. In both cases, the Supreme Court considered Ninth Circuit rulings in federal habeas review cases involving jury instructions. In Hedgpeth the Supreme Court vacated the Ninth Circuit’s judgment which had held an alternative legal theory error to be structural and remanded the case for further proceedings. In Waddington the Ninth Circuit had granted a writ of habeas corpus to Cesar Sarausad after finding a "reasonable likelihood' that the jury who convicted him had unconstitutionally misapplied their instructions, but the Supreme Court reversed this decision and remanded for further proceedings. Baker Hostetler partner Lee Casey discusses the decisions.

SCOTUScast 4-9-09 featuring Timothy Sandefur

info@fed-soc.org — 9 Apr 2009 17:40:37 GMT

On Tuesday, February 24, the Supreme Court announced its decision in Ysursa v. Pocatello Education Association. In this case, the Supreme Court considered whether the First Amendment prohibits a state legislature from removing its political subdivisions’ authority to make payroll deductions for political purposes. In a 6-3 decision delivered by Chief Justice Roberts, the Court held that Idaho’s ban on payroll deductions for political activities does not violate the First Amendment rights of employee unions and is equally valid at both the state and local levels, thus reversing the Ninth Circuit decision that held the ban unconstitutional at the local level. Pacific Legal Foundation Staff Attorney Timothy Sandefur discusses the decision. [Full disclosure: the Pacific Legal Foundation filed a brief in this case as amicus curiae in support of neither party.]

SCOTUScast 4-3-09 featuring Tom Caso

info@fed-soc.org — 3 Apr 2009 22:20:23 GMT

On Wednesday, February 25, the Supreme Court heard oral argument in Hawaii v. Office of Hawaiian Affairs. The Supreme Court here considers the claims of native Hawaiians to land held by the State of Hawaii. The case involves a dispute over the legal effect of Congress’s 1993 Apology Resolution, which described, and apologized to native Hawaiians for, the overthrow of the Hawaiian monarchy in 1893. When Hawaii was annexed by the United States in 1898, the Hawaiian government ceded almost 2 million acres of land to the United States Government, most of which was later transferred to the State of Hawaii in the act admitting Hawaii as a state in 1959. Under the Admission Act, a portion of funds derived from the sale of these ceded lands must be used for the benefit of native Hawaiians, and the Office of Hawaiian Affairs was established to oversee such funds. Following the Apology Resolution, the Office of Hawaiian Affairs filed suits in state court seeking an injuction to prevent the State of Hawaii from selling any ceded land. Although the trial court did not grant relief, the Supreme Court of Hawaii on appeal ordered the injunction to be issued, arguing that the Congress had acknowledged, in the Apology Resolution, "unrelinquished claims over ceded lands" by native Hawaiians. The Supreme Court now considers whether the 1993 Apology Resolution requires the State of Hawaii to reach a political settlement with native Hawaiians before selling ceded lands. Appellate litigator Tom Caso discusses the case.

SCOTUScast 3-25-09 featuring Tom Gede

info@fed-soc.org — 25 Mar 2009 19:39:33 GMT

On Tuesday, February 24, the Supreme Court announced its decision in Carcieri v. Salazar, originally heard in November as Carcieri v. Kempthorne. In this case, the Supreme Court considered whether the Indian Reorganization Act of 1934 empowers the Secretary of the Interior to take land into trust for Indian tribes that were not recognized tribes in 1934 under federal jurisdiction. In an 8-1 decision, the Court held that the 1934 Act did not so empower the Secretary of the Interior, reversing the First Circuit’s ruling. Six of the justices further held that the Narragansett Tribe specifically was not recognized under federal jurisdiction in 1934, thus holding that the Secretary did not have the authority to take the particular parcel of land at issue in this case into trust. Tom Gede, a principal in Bingham Consulting Group and of counsel to Bingham McCutchen LLP, discusses the decision.

SCOTUScast 3-13-09 featuring Richard Samp

info@fed-soc.org — 13 Mar 2009 21:56:28 GMT

On Monday, December 8, the Supreme Court heard oral argument in Peake v. Sanders. The Supreme Court here considers the administrative process governing veterans’ disability benefits claims. The consolidated cases arise from disability claims filed by respondents Woodrow Sanders and Patricia Simmons under the Veterans Claims Assistance Act. Initially both claims were denied, but respondents later sought to reopen or amend their claims. Both claims were again denied, but in each case the Department of Veterans Affairs failed to provide all of the appropriate notice required by the VCAA. Respondents appealed their cases to the Veterans Court, each arguing that the failure to provide the required notice was prejudicial, with that court drawing a distinction between different types of notice error. On appeal, the Court of Appeals for the Federal Circuit held that all types of notice error would be presumed prejudicial, and the VA petitioned for certiorari in both cases. The Supreme Court thus now considers whether a failure of the VA to give notice required by the VCAA must be presumed to be prejudicial. Richard Samp, Chief Counsel of the Washington Legal Foundation, discusses the case.

SCOTUScast 3-3-09 featuring Tom Gede

info@fed-soc.org — 3 Mar 2009 20:42:49 GMT

On Monday, November 3, the Supreme Court heard oral argument in Carcieri v. Kempthorne. The Supreme Court here considers the Narragansett Tribe of Rhode Island’s rights under the Indian Reorganization Act of 1934 and the Rhode Island Indian Claims Settlement Act. The case arises from a dispute over a 31-acre parcel of land purchased by the Narragansett Tribe in 1991. The tribe began construction on the land without obtaining the relevant permits, and the Town of Charleston obtained an injunction to stop the tribe from building without them. In 1998, the Secretary of the Interior took the land into trust under the Indian Reorganization Act of 1934, a decision which the state appealed unsuccessfully to the Interior Board of Indian Appeals and then challenged in United States District Court. The District Court affirmed the Secretary’s decision, as did the First Circuit on appeal. The Supreme Court now considers whether the 1934 Act applies to tribes that were not federally recognized in 1934 and whether the Rhode Island Indian Claims Settlement Act restricts the tribe’s ability to claim sovereignty over acquired land that was not part of the settlement. Bingham Consulting Group principal Tom Gede discusses the case.

SCOTUScast 3-3-09 featuring James Burling and Brandon Middleton

info@fed-soc.org — 3 Mar 2009 20:41:06 GMT

On Monday, January 12, the Supreme Court heard oral argument in Coeur Alaska v. Southeast Alaska Conservation Council. The Supreme Court here considers the regulation of leftover material created during the process of extracting gold known as tailings. The case involves a dispute over a permit issued to petitioner Coeur Alaska by the Army Corps of Engineers, allowing petitioner to dam Lower Slate Lake and deposit the tailings from a nearby mine in the lake. The Corps issued this permit under Section 404 of the Clean Water Act, which grants it the authority to regulate the discharge of fill material. Southeast Alaska Conservation Council and two other groups appealed the Corps’ decision arguing that Coeur Alaska’s tailings were instead prohibited by a 1982 EPA regulation under Section 402 of the Clean Water Act, which concerns the discharge of pollutants. Coeur Alaska and the State of Alaska filed a motion for summary judgment, which the District Court granted, but the Ninth Circuit reversed and invalidated the permit, relying on Sections 301 and 306 of the Act to hold that the discharge was prohibited despite a 2002 joint regulation that classified the tailings as fill material. The Supreme Court now considers whether the Ninth Circuit erred in holding that the Corps does not exercise exclusive permitting authority over fill material under Section 404. James Burling and Brandon Middleton, both of the Pacific Legal Foundation, discuss the case.

SCOTUScast 2-23-09 featuring Michael Brennan

info@fed-soc.org — 24 Feb 2009 00:11:38 GMT

On Tuesday, January 13, the Supreme Court announced its decision in Jimenez v. Quarterman. In this case, the Supreme Court considered whether the Antiterrorism and Effective Death Penalty Act's one-year limitations period for filing a federal habeas petition begins again upon the expiration of time for seeking review of an out-of-time appeal granted by a state court. In a unanimous decision, the Court held that a criminal defendant's judgment is not final for the purposes of the AEDPA until the conclusion of the out-of-time direct appeal or the expiration of time for seeking review of that appeal, and therefore remanded petitioner Carlos Jimenez's request for a certificate of appealability to the Fifth Circuit for further proceedings. Former Wisconsin Circuit Court Judge and Gass Weber Mullins partner Michael Brennan discusses the decision.

SCOTUScast 2-9-09 featuring Allyson Ho

info@fed-soc.org — 10 Feb 2009 00:20:54 GMT

On Wednesday, November 5, the Supreme Court heard oral argument in Negusie v. Mukasey. The Supreme Court here considers the "persecution bar" of the Immigration and Naturalization Act, which prohibits the granting of asylum to (or withholding of removal of) a refugee who has participated in racial, religious, ethnic, social, or political persecution. The case concerns Daniel Girmai Negusie, an Eritrean man who was imprisoned and otherwise persecuted for his Ethiopian heritage and Christian religion in his native country before being forced to serve as a guard at the very same prison, where others were similarly persecuted. Having escaped to the United States, Negusie applied for asylum. Although an Immigration Judge found him to meet the relevant statutory criteria, the judge concluded he was ineligible for relief because his service as a prison guard constituted disqualifying partcipation in persecution. Negusie appealed, arguing that the "persecution bar" did not apply to him because he had been compelled to serve as a prison guard against his will, but both the Board of Immigration Appeals and the Fifth Circuit affirmed the original ruling. The Supreme Court now considers whether the "persecution bar" prohibits the granting of asylum to those who were compelled to engage in persecution by threats of death or torture. Morgan Lewis Partner Allyson Ho discusses the case.

SCOTUScast 2-8-09 with Andrew Morriss

info@fed-soc.org — 10 Feb 2009 00:15:41 GMT

On Monday, December 15, the Supreme Court announced its decision in Altria Group v. Good, the first case in which it had heard oral argument in the October 2008 term. In this case, the Supreme Court considered whether federal law preempted state law fraud claims regarding statements made in cigarette advertising and authorized by the Federal Trade Commission, either expressly or impliedly. In a 5-4 decision, the Court held that federal law does not expressly—and neither do various FTC decisions impliedly—preempt such challenges, thereby allowing a suit against the tobacco company to go forward. University of Illinois Professor of Law Andrew Morriss discusses the decision.

SCOTUScast 1-30-09 featuring Chris Landau

info@fed-soc.org — 2 Feb 2009 23:20:19 GMT

On Tuesday, November 4, the Supreme Court heard oral argument in FCC v. Fox Television Stations. The Supreme Court here considers the FCC's policy on the broadcast of vulgar words. The case arises from controversy over an omnibus order issued by the FCC in 2006 to punish broadcasters for even single uses of vulgar words—so-called fleeting expletives. This new order was prompted by several high-profile incidents of fleeting expletives at awards shows and represented a break from the FCC's long-standing policy, crafted in the wake of the 1975 case FCC v. Pacifica Foundation, to take action against broadcasters only for the repeated or sustained use of vulgar language. Although the new order was a notice of only "apparent liability" with no corresponding punishment, Fox and other broadcasters petitioned for review by the Second Circuit, which struck the order down as an arbitrary and capricious deviation not allowed under federal communications law, but invited the agency to provide a "reasonable explanation" for changing its mind. Instead, the FCC appealed the case to the Supreme Court, which now considers whether the Second Circuit erred in striking down the FCC's new policy against fleeting expletives. Kirkland & Ellis Partner Chris Landau discusses the case.

SCOTUScast 1-27-09 featuring Erin Glenn Busby

info@fed-soc.org — 29 Jan 2009 00:57:53 GMT

On Monday, November 3, the Supreme Court heard oral argument in Wyeth v. Levine. The Supreme Court here considers state tort claims based on inadequate prescription drug labeling. The case concerns Diana Levine, a Vermont musician, who went into a clinic for headache-related nausea and ended up having her arm amputated. The amputation was a consequence of complications arising from the administration of the antihistamine drug Phenergen by the "IV push" method. The FDA-approved labeling for Phenergen did not prohibit "IV push" delivery, but did warn against it, precisely because of the possibility of such complications. So Levine brought a negligence claim against the drug's manufacturer Wyeth in state court, arguing that the drug's labeling was inadequate for not prohibiting "IV push" delivery. Wyeth argued that such a claim was preempted by federal law, but the jurors, having considered the FDA's approval of the drug's label, ruled in Levine's favor to the tune of more than six million dollars. The Vermont Supreme Court upheld the ruling, and now the United States Supreme Court considers whether prescription drug labeling judgments approved by the FDA preempt state tort claims that these labels were insufficient to make the drugs reasonably safe for use. Appellate litigator Erin Glenn Busby discusses the case.

SCOTUScast 1-27-09 featuring Kristin Hickman

info@fed-soc.org — 29 Jan 2009 00:55:35 GMT

On Tuesday, November 4, the Supreme Court heard oral argument in United States v. Eurodif. In two cases consolidated for argument, the Supreme Court considers the appropriate treatment under the anti-dumping laws of contracts between Eurodif, a foreign uranium enricher, and domestic utilities. Under the contracts at issue, the American utilities provide unenriched uranium to Eurodif and receive enriched uranium back. The enriched uranium is not generally produced from the originally-provided uranium, but the utilities pay Eurodif based on what would be necessary to enrich the uranium they do provide. Following a petition filed by a competitor, the Department of Commerce concluded this transaction was a sale of a good and imposed dumping duties. Eurodif claims to be selling a service rather than a good, and since sales of services are not subject to the anti-dumping statute, but sales of goods are, the case has centered on the Department's construction of the statute to include the transaction at issue. The U.S. Court of International Trade rejected the Department's defense of its construction, and the Federal Circuit affirmed. The Supreme Court now considers whether the Commerce Department is entitled to Chevron deference in its construction, which would subject the transaction to federal anti-dumping statutes. University of Minnesota Law Professor Kristin Hickman discusses the case.

SCOTUScast 1-23-09 featuring John Douglass

info@fed-soc.org — 23 Jan 2009 21:18:15 GMT

On Monday, November 10, the Supreme Court heard oral argument in Melendez-Diaz v. Massachusetts. The Supreme Court here considers the limits of the Confrontation Clause in the wake of its decision in Crawford v. Washington. The case arises from the conviction of Luis Melendez-Diaz on charges of distributing and trafficking crack cocaine. The Commonwealth of Massachusetts submitted as evidence at trial lab reports that showed substances seized at the time of Melendez-Diaz's arrest to be cocaine. Under Massachusetts precedent, such reports were considered a record of primary fact, and in the wake of the Supreme Court's 2004 decision in Crawford, the Supreme Judicial Court of Massachusetts had held in Commonwealth v. Verde that a crime lab report was analogous to a business record and thus would not implicate the Confrontation Clause. In this case, the intermediate appellate court in Massachusetts applied this logic to reject Melendez-Diaz's challenge, and the Supreme Judicial Court denied review. The Supreme Court now considers whether crime lab reports constitute the kind of testimonial evidence which implicates the Sixth Amendment's protection of the accused's right "to be confronted with the witnesses against him." University of Richmond School of Law Dean John Douglass discusses the case.

SCOTUScast 1-23-09 featuring Raymond LaJeunesse

info@fed-soc.org — 23 Jan 2009 20:14:35 GMT

On Monday, December 1, the Supreme Court heard oral argument in 14 Penn Plaza LLC v. Pyett. The Supreme Court here considers the problem of collective bargaining agreements which waive an employee's right to a judicial forum. The case comes to us from Local 32BJ of the Service Employees International Union. Three members of that union were replaced as night watchmen by new, younger employees in 2003 and reassigned to other duties. The collective bargaining agreement in force specified arbitration as the sole remedy for discrimination claims, explicitly including statutory claims of age discrimination. The union, however, declined to arbitrate the plaintiffs' statutory claims, and so plaintiffs filed suit against their employer for age discrimination in the Southern District of New York. The District Court denied motions to dismiss or compel arbitration, following a Second Circuit precedent that a Union cannot waive its members' right to a judicial forum for statutory claims, and on appeal the Second Circuit stood by its precedent and affirmed. The Supreme Court now considers whether an arbitration clause in a union-negotiated collective bargaining agreement clearly waiving an employee's right to a judicial forum for statutory discrimination claims is enforceable. Raymond LaJeunesse, Vice President and Legal Director of the National Right to Work Legal Defense Foundation, discusses the case.

SCOTUScast 1-13-09 featuring Ronald Eisenberg

info@fed-soc.org — 13 Jan 2009 22:04:06 GMT

On Wednesday, November 12, the Supreme Court heard oral argument in Bell v. Kelly, and on Monday, November 17, the Court dismissed the case as improvidently granted. The Supreme Court granted certiorari in this case to consider the application of the deference rule in federal habeas review. The case arose from claims by Edward Bell of ineffective counsel during his sentencing following a 2001 conviction for murder. He was sentenced to death and, after having a habeas petition denied by the Virginia Supreme Court for failing to satisfy either prong of Strickland v. Washington, filed a habeas petition in federal district court alleging ineffective assistance of counsel. The district court considered new evidence not presented at trial and found that, while his counsel had been ineffective, the state court's determination that he had failed to satisfy the prejudice prong of Strickland was reasonable and thus entitled to deference. The district court thus did not grant relief but did allow the case to be appealed. The Fourth Circuit on review considered only the prejudice prong and affirmed. Bell appealed to the Supreme Court, claiming that the deference rule should not apply to a claim based on evidence not heard by a state court, and the Supreme Court granted certiorari. However, after hearing oral argument in this case, the Court dismissed the writ as improvidently granted, without comment. Deputy District Attorney Ronald Eisenberg of the Philadelphia District Attorney's Office discusses the case.

SCOTUScast 1-13-09 featuring Timothy Sandefur

info@fed-soc.org — 13 Jan 2009 22:02:36 GMT

On Monday, November 3, the Supreme Court heard oral argument in Ysursa v. Pocatello Education Association. The Supreme Court here considers the application of the First Amendment to payroll deductions. The case arises from a challenge to the Idaho Voluntary Contributions Act of 2003, which attempted to constrain the participation of labor organizations in political activities. Public employee labor organizations sued state officials in federal district court, claiming several provisions of the act violated their First and Fourteenth Amendment rights. The state conceded the unconstitutionality of all the challenged provisions, except the one prohibiting payroll deductions for political activities. The district court found this provision constitutional as applied to the state government, but unconstitutional as applied to county and local governments. The state appealed this latter ruling, but the Ninth Circuit affirmed it, applying strict scrutiny on the grounds that local governments were not state-controlled nonpublic fora, and reasoning that the challenged provision would unconstitutionally burden political speech. The Supreme Court now considers whether the First Amendment prohibits a state legislature from removing its political subdivisions' authority to make payroll deductions for political purposes. Pacific Legal Foundation Staff Attorney Timothy Sandefur discusses the case.

SCOTUScast 1-12-09 featuring Stephen McAllister

info@fed-soc.org — 13 Jan 2009 22:00:39 GMT

On Wednesday, November 5, the Supreme Court heard oral argument in Van de Kamp v. Goldstein. In this case, the Supreme Court considers the extent of absolute immunity protection for prosecutors. The case arises from the 1980 murder conviction of Thomas Lee Goldstein, which rested on the testimony of a jailhouse informant who had been promised a favorable plea bargain for testifying. This deal was, however, unknown to both Goldstein's attorney and the prosecutor on the case. After being released in 2004, Goldstein filed suit against, among others, John Van de Kamp, who was district attorney at the time of Goldstein's conviction, alleging that he had violated Goldstein's constitutional right to due process by failing to ensure that prosecutors in his office shared information about informants. Van de Kamp sought to dismiss the complaint, claiming absolute prosecutorial immunity; however, the District Court denied the motion, a decision which the Ninth Circuit affirmed, finding that the conduct at issue was not prosecutorial in nature, but administrative. The Supreme Court is now asked to decide whether supervising prosecutors are protected by absolute immunity from liability for purportedly improper training, supervising, or policy-making. Kansas Solicitor General Stephen McAllister discusses the case.

SCOTUScast 12-12-08 featuring Lee Casey

info@fed-soc.org — 12 Dec 2008 16:39:47 GMT

On Wednesday, October 15, the Supreme Court heard oral argument in Waddington v. Sarausad and Hedgpeth v. Pulido. The Supreme Court here considers two federal habeas review cases from the Ninth Circuit involving jury instructions. Waddington centers on the issue of whether the jury that convicted Cesar Sarausad of second-degree murder, attempted murder, and assault was instructed properly on Washington state's accomplice liability law. State courts that heard Sarausad's challenge upheld the conviction, but the Ninth Circuit affirmed the District Court's grant of federal habeas relief, finding a "reasonable likelihood" the jury had unconstitutionally misapplied their instructions to relieve the state of its burden of proof. The Supreme Court thus considers what deference the Anti-Terrorism and Effective Death Penalty Act requires federal courts to give to state court determinations concerning jury instructions. Hedgpeth concerns Michael Pulido's conviction by an erroneously-instructed jury who found a special circumstance of robbery felony-murder. The California Supreme Court affirmed the conviction by applying modern harmless-error jurisprudence , but the Ninth Circuit considered the instructional error to be structural and affirmed again the District Court's grant of federal habeas relief. So the Supreme Court now considers whether clearly established federal law precludes the Ninth Circuit's grant of habeas relief. Baker Hostetler Partner Lee Casey discusses the cases.

SCOTUScast 12-4-08 featuring William Otis

info@fed-soc.org — 4 Dec 2008 22:33:34 GMT

On Tuesday, October 14, the Supreme Court heard oral argument in Oregon v. Ice. In this case, the Supreme Court considers the extent of jury involvement in sentencing required by the Sixth Amendment. The case arises from the imposition of consecutive sentencing totalling 340 months by an Oregon judge following his determination that Thomas Eugene Ice's six convictions on four counts of molestation and two of burglary comprised several separate incidents. Under Oregon law, sentences for multiple crimes are served concurrently by default unless a judge finds the crimes to have been part of different courses of action resulting in separate harms. On appeal, the Oregon Supreme Court read the Apprendi line of cases to preclude the consecutive sentences. The Supreme Court now considers whether Oregon's sentencing regime violates the Sixth Amendment because it authorizes the judge to impose consecutive sentences based on the sentencing judge's determination of a fact neither found by the jury nor admitted by the defendant. Former White House Special Counsel William Otis discusses the case.

SCOTUScast 11-25-08 featuring Jeffrey Clark

info@fed-soc.org — 25 Nov 2008 16:20:26 GMT

On Wednesday, October 8, the Supreme Court heard oral argument in Summers v. Earth Island Institute. In this case, the Supreme Court considers the justiciability of challenges to certain Forest Service regulations authorizing logging in areas damaged by fire without various procedures Congress had generally specified for forest management. The Earth Island Institute and other environmental groups brought a facial and as applied challenge to the regulations. The as applied challenge was settled, but the environmental plaintiffs maintained their facial challenge and obtained a nationwide injunction against application of the rules. The Ninth Circuit upheld the injunction, and the Supreme Court now considers whether the facial challenge presents a proper subject for judicial review, whether the respondents have established standing, whether the subject remains ripe, and whether the nationwide injunction was proper. Kirkland & Ellis partner Jeffrey Clark discusses the case.

SCOTUScast 11-18-08 featuring Hans von Spakovsky

info@fed-soc.org — 18 Nov 2008 23:16:35 GMT

On Tuesday, October 14, the Supreme Court heard oral argument in Bartlett v. Strickland. Here the Supreme Court considers the problem of minority vote dilution in a case arising from a dispute about North Carolina state House District 18, which includes parts of Pender and New Hanover Counties. The district was created as a "cross-over district," with about 39% of the voting population being black, who with "cross-over" votes have been able to elect a black representative for the past 16 years. In 2004 Pender County challenged the district, claiming that as drawn it violated the North Carolina State Constitution by splitting Pender County into multiple districts. The trial court upheld the district as drawn, claiming that it was necessary under the Voting Rights Act to prevent vote dilution of the minority, but the North Carolina Supreme Court overturned the ruling, deciding that only minorities who composed an actual majority of a potential district could state a vote dilution claim. The Supreme Court now considers under what circumstances a minority may state a vote dilution claim under the Voting Rights Act. Former Federal Election Commissioner Hans von Spakovsky discusses the case.

SCOTUScast 11-18-08 featuring Rick Esenberg

info@fed-soc.org — 18 Oct 2008 22:55:02 GMT

On Wednesday, October 8, the Supreme Court heard oral argument in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee. Here the Supreme Court considers the extent of employee protection under Title VII's anti-retaliation provision in a case arising from an internal investigation in Nashville, Tennessee, of Gene Hughes, who had been hired by the school district to oversee and investigate all claims of discrimination and harassment but had himself become the subject of sexual harassment complaints. This investigation of the investigator turned up several women, including Vicky Crawford who had worked with Hughes and claimed that he had sexually harassed them, though they had not made any prior claims of offensive conduct. Shortly after the investigation, these women were fired from their jobs, assertedly for unrelated reasons. After filing a complaint with the Equal Employment Opportunity Commission, Vicky Crawford sued the Metropolitan Government, alleging that it had violated the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964, which protects employees who oppose sexual harassment and those who participate in an investigation. The District Court ruled that her activities were not sufficient to bring her within the protections of these provisions, and the Sixth Circuit affirmed. The Supreme Court now considers whether Title VII protects an employee who participates in an internal investigation under either or both of the opposition or participation clauses from retaliation by her employer. Marquette University Law Professor Rick Esenberg discusses the case.

SCOTUScast 10-31-08 featuring Luke Milligan

info@fed-soc.org — 31 Oct 2008 16:48:18 GMT

On Tuesday, October 7, the Supreme Court heard oral argument in Herring v. United States. In this case, the Supreme Court considers the limits of the exclusionary rule. The case arises from a search incident to the arrest of Bennie Dean Herring by police officers in Coffee County, Alabama. An investigator, suspicious of Herring, checked to see if there was a warrant for his arrest in neighboring Dale County and was informed that there was. So Herring was arrested, and the search incident to arrest turned up methamphetamine and a pistol. In the mean time, however, the Dale County Warrant Clerk discovered that the warrant for Herring's arrest had actually been recalled, but the arrest and search were already complete. Herring was charged and convicted with possession of methamphetamine and being a felon in possession of a firearm. He appealed arguing that the district court had erred in refusing to grant his motion to suppress the evidence from the unconstitutional search, but the Eleventh Circuit affirmed. The Supreme Court is now asked to decide whether the Fourth Amendment requires the exclusion of evidence seized incident to an arrest conducted on the basis of credible, but ultimately erroneous, information negligently provided by another law enforcement agent. University of Louisville Professor of Law Luke Milligan discusses the case.

SCOTUScast 10-22-08 featuring Julian Ku

info@fed-soc.org — 22 Oct 2008 20:12:06 GMT

On Wednesday, October 8, the Supreme Court heard oral argument in Winter v. Natural Resources Defense Council. In this case, affectionately known as the "save the whales case", the Supreme Court deals with the balance between national defense and protecting the environment. The case arises from the use of midfrequency active sonar during United States Navy submarine training exercises. Acknowledging that such sonar "may affect both the physiology and behavior of marine mammals," the Navy issued a required Environmental Assessment under the National Environmental Policy Act, or NEPA. On claims brought by the Natural Resources Defense Council that the Navy was violating both NEPA and the Coastal Zones Management Act, a federal District Court issued a preliminary injunction restricting the Navy's use of the sonar. Neither the District Court nor the Circuit Court was willing to vacate the injunction based on the Navy's argument that it had coordinated "alternative arrangements" with the Council on Environmental Quality due to "emergency circumstances." The Supreme Court now considers whether the grant of injunctive relief was proper. Hofstra University Professor of Law Julian Ku discusses the case.

SCOTUScast 10-17-08 featuring Amy Barrett

info@fed-soc.org — 17 Oct 2008 18:17:44 GMT

On Monday, October 6, the Supreme Court heard oral argument in Vaden v. Discover Bank. In this case, the Supreme Court deals with the question of federal jurisdiction over state-law arbitration obligations. The case arises from a dispute between Discover Bank and Discover cardholder Betty Vaden. When Mrs. Vaden filed class-action counterclaims against Discover in response to their suit against her for non-payment, Discover asked the Federal District Court to compel arbitration per the cardmember agreement. Mrs. Vaden appealed on the grounds that the District Court did not have subject-matter jurisdiction because the arbitration agreement was a matter of state law, but the Fourth Circuit "looked through" the petition to compel and found that the underlying dispute involved federal law, affirming the District Court's decision to compel arbitration. The Supreme Court is now asked to decide whether such a suit brought under the Federal Arbitration Act "aris[es] under" federal law when the petition to compel raises no federal question, but the underlying dispute does involve federal law. University of Notre Dame Professor Law Amy Barrett discusses the case.

SCOTUScast 10-17-08 featuring Andrew Morriss

info@fed-soc.org — 17 Oct 2008 17:22:14 GMT

On Monday, October 6, the Supreme Court officially opened the October 2008 term by hearing oral argument in Altria Group v. Good. This case arises from an attempt by three long-time smokers of light cigarettes to sue the cigarette manufacturers under Maine's Fair Trade Practices Act claiming that the manufacturers knew all along that light cigarettes would not deliver less tar or nicotine to the smoker. The Federal District Court dismissed the case, reasoning that it was based on health-hazard claims preempted expressly by the Federal Cigarette Labeling and Marketing Act and impliedly by Federal Trade Commission policy. The First Circuit reinstated the lawsuit, rejecting both claims of preemption, and now the Supreme Court considers the question of whether federal law in fact preempts such state-law challenges to FTC-authorized statements in cigarette advertising, either expressly or impliedly. University of Illinois Professor of Law Andrew Morriss discusses the case.