SCOTUScast

On January 14, 2014, the Supreme Court heard oral argument in Marvin M. Brandt Revocable Trust v. United States. The question in the case is Whether the United States retained an implied reversionary interest in rights-of-way created by the General Railroad Right of Way Act of 1875 after the federal government granted the lands underlying the right-of-way to a private party. In short, who owns or controls the lands when the railroads stop using it for rails, stations, and switching yards? -- To discuss the case, we have Richard Epstein who is the Laurence A. Tisch Professor of Law at the New York University School of Law.

On January 14, 2014, the Supreme Court issued its decision in Mississippi ex. rel. Hood v. AU Optronics Corp. The question presented in this case was whether a suit filed by a State as the sole plaintiff constituted a "mass action" removable to federal court under the Class Action Fairness Act. The State, Mississippi, asserted a claim for restitution based on injuries suffered by the State's citizens. The US Court of Appeals for the Fifth Circuit held that the suit was a “mass action.” -- The Supreme Court unanimously reversed that decision and remanded the case for further proceedings. Writing for the Court, Justice Sotomayor held that, because a "mass action" must involve monetary claims brought by 100 or more persons who propose to try those claims jointly as named plaintiffs--and in this case the State of Mississippi was the only named plaintiff--the case must be remanded to state court. -- To discuss the case, we have Brian Fitzpatrick, who is a professor of law at the Vanderbilt University Law School. 

On January 13, 2014, the Supreme Court heard oral argument in National Labor Relations Board v. Noel Canning. This case presents three questions. One, it asks whether the President can exercise the recess appointment power during a temporary recess that occurs while the Senate is still in session, or is instead limited to recesses between enumerated sessions. Two, the case asks whether the President may exercise the recess appointment power to fill any vacancy that exists during a recess--including vacancies that arose before the recess occurred--or whether that power is limited to vacancies that arise during the recess. Finally, the case asks whether the President may exercise the recess appointment power while the Senate, though effectively out of town, continues to convene every three days in brief pro forma sessions. -- To discuss the case, we have John Elwood, a partner at Vinson Elkins.

On December 11, 2013, the Supreme Court heard oral argument in White v. Woodall. The case presents two questions: (1) Whether the Sixth Circuit violated the Anti-Terrorism and Effective Death Penalty Act by granting habeas relief because a Kentucky trial court refused to issue an instruction to the jury telling it not to draw adverse inferences from the defendant's silence at the sentencing phase in a death penalty case, even though no Supreme Court precedent establishes that such an instruction must be given at the penalty phase when a non-testifying defendant has pled guilty to the crimes and aggravating circumstances; and (2) whether the Sixth Circuit violated the harmless error standard in Brecht v. Abrahamson in ruling that the absence of a no adverse inference instruction was not harmless in spite of overwhelming evidence of guilt and in the face of a guilty pleas to the crimes and aggravators. -- To discuss the case, we have Robert Blecker who is a Professor of Law at the New York Law School. 

On December 10, 2013 the Supreme Court heard oral arguments in EPA v. EME Homer City Generation. The case presents three questions: (1) Whether the court of appeals had jurisdiction to consider the challenges to the Clean Air Act on which it granted relief; (2) whether states may wait until after the EPA has adopted a rule which specifies each state’s inter-state pollution obligations to adopt state implementation plans that ban emissions that “contribute significantly” to other states’ air pollution problems; and (3) whether the EPA correctly interpreted the Clean Air Act’s phrase “contribute significantly” by defining each upwind state’s “significant” interstate air pollution contributions in light of the cost-effective emission reductions it can make to improve air quality in polluted downwind areas, or whether the Act instead requires the EPA to simply consider only each upwind state’s physically proportionate responsibility for each downwind air quality problem. -- To discuss the case, we have Mark DeLaquil who is a partner at Baker Hostetler. 

On November 13, 2013, the Supreme Court was less than one month away from hearing arguments in Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc., a case raising the question whether disparate impact claims are cognizable under the Fair Housing Act, when the case settled. As a result, the writ of certiorari was dismissed and the case removed from the Court’s docket. -- To discuss the case and implications of the settlement, we have Ilya Shapiro, Senior Fellow in Constitutional Studies at the Cato Institute.

On December 3, 2013, the Supreme Court issued its decision in Atlantic Marine Construction Co. v. United States District Court for the Western District of Texas. This case involves a forum selection clause, which is contractual language specifying the judicial forum for resolution of any litigation that may arise regarding the contract in question. The question before the Supreme Court was twofold: (1) Does the Court's earlier decision in Stewart Organization, Inc. v. Ricoh Corp. require federal courts to enforce forum selection clauses strictly, or are such clauses subject to a discretionary balancing-of-conveniences analysis; and (2) how should courts allocate the burden of proof between parties seeking to enforce or avoid the clause? -- The Supreme Court unanimously reversed the judgment of the US Court of Appeals for the Fifth Circuit, which had effectively declined to enforce the forum selection clause. In a decision delivered by Justice Alito, the Court held that a forum-selection clause may be enforced by a motion to transfer venue under 28 U.S.C. § 1404(a). When a defendant files such a motion, the Court declared, the lower courts should transfer the case unless extraordinary circumstances unrelated to the convenience of the parties clearly disfavor a transfer. The burden is on the party acting contrary to the selection clause to show that the public interest overwhelmingly disfavors a transfer. The Court remanded the case for the Fifth Circuit to consider that issue in the context of this case. -- To discuss the case, we have Stephen Sachs, who is an Assistant Professor of Law at Duke University School of Law. It should be noted that Professor Sachs submitted an amicus brief in support of neither party.

On December 2, 2013, the Supreme Court heard oral argument in Michigan v. Bay Mills Indian Community. The question in this case is twofold. First, whether a federal court may exercise jurisdiction to prohibit an activity that violates the Indian Gaming Regulatory Act (IGRA), but does not occur on Indian lands; and second, whether tribal sovereign immunity precludes a state from suing a tribe in federal court for violations of IGRA that take place outside of Indian lands. -- To discuss the case, we have Tom Gede, who is a principal in Bingham Consulting and of counsel at Bingham McCutchen.

On December 3, 2013, the Supreme Court heard oral argument in Lexmark International, Inc. v. Static Control Components, Inc. The question in this case is how to appropriately determine a party’s standing to bring a cause of action for false advertising under the Lanham Act. Are the correct factors (1) those set forth in Associated General Contractors of California, Inc. v. California State Council of Carpenters as adopted by the Third, Fifth, Eighth, and Eleventh Circuits; or (2) the categorical test, permitting suits only by an actual competitor, employed by the Seventh, Ninth, and Tenth Circuits; or finally, (3) a version of the more expansive “reasonable interest” test, either as applied by the Sixth Circuit in this case or as applied by the Second Circuit in prior cases? -- To discuss the case, we have David Olson, who is an Associate Professor of Law at the Boston College Law School.

On December 11, 2013, the Supreme Court heard oral argument in Lozano v. Alvarez. The question at issue is whether a federal district court considering a petition under the Hague Convention on the Civil Aspects of International Child Abduction, for the return of an abducted child, may equitably toll the running of the one-year filing period when the abducting parent has concealed the whereabouts of the child from the left-behind parent. -- To discuss the case, we have Margaret Ryznar, who is an Associate Professor of Law and Dean's Fellow at the Indiana University Robert H. McKinney School of Law.