Federalist Society SCOTUScast

Kappos v. Hyatt - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 16 May 2012 20:28:13 GMT

On April 18, 2012 the Supreme Court announced its decision in Kappos v. Hyatt. This case involves the Patent Act of 1952, under which an applicant who is denied a patent by the Patent and Trademark Office (PTO) is permitted to challenge that decision by filing a lawsuit in federal court. The question here concerns the extent to which an applicant can introduce in federal court evidence that was not presented to the PTO--and the standard that the court should apply in considering such evidence.

In an opinion delivered by Justice Thomas, the Court held unanimously that when introducing new evidence in federal court, an applicant is not subject to limits beyond those set forth in the Federal Rules of Evidence and of Civil Procedure. The Court further held that if such evidence pertains to disputed issues of fact, it should be assessed by the federal trial court under a de novo standard of review. Justice Sotomayor filed a concurring opinion, in which Justice Breyer joined.

To discuss the case, we have David Olson, who is an Assistant Professor at Boston College Law School.

United States v. Home Concrete & Supply, LLC - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 8 May 2012 15:51:41 GMT

On April 25, 2012, the Supreme Court announced its decision in United States v. Home Concrete & Supply, LLC, a case involving a dispute over the language of certain tax code provisions and regulations. Generally, if the IRS believes that a taxpayer’s return has understated the amount of tax owed, the IRS has three years to assess additional tax. The tax code, however, extends that three-year period to six years when the taxpayer improperly “omits from gross income” a sum that exceeds 25% of the gross income that the taxpayer stated on the return. The question here was whether an understatement of gross income that occurred when a taxpayer overstated the “basis” in sold property should count as an “omission” from gross income that triggers the extended six-year assessment period.

The Court held by a vote of 5-4 that the understatement of gross income does not trigger the extended six-year assessment period. Justice Breyer delivered the majority opinion of the Court, with the exception of Part IV-C. The Chief Justice and Justices Alito and Thomas joined the opinion in full, while Justice Scalia joined the opinion in all except Part IV-C. Justice Scalia also filed an opinion concurring in part and concurring in the judgment. Justice Kennedy filed a dissenting opinion, which was joined by Justices Ginsburg, Sotomayor and Kagan.

To discuss the case, we have Kristin Hickman, who is a Professor of Law at the University of Minnesota Law School.

Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak and Salazar v. Patchak - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 8 May 2012 15:47:27 GMT

On April 24, 2012, the Supreme Court heard oral argument in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak and Salazar v. Patchak. Both cases consider whether an individual may file suit to challenge the federal government’s placement of land into a trust for use by Indian tribes.

In Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, the Court will consider whether the Quiet Title Act’s reservation of sovereign immunity in suits involving “trust or restricted Indian lands” applies when the plaintiff does not actually claim title to the land in question.

In Salazar v. Patchak the Court will consider whether, notwithstanding the Quiet Title Act, the Administrative Procedure Act waives sovereign immunity in a suit challenging the United States’ title to lands held in trust for an Indian tribe.

In both cases the Court will also face a question of “prudential standing”; namely, whether the plaintiff can base his standing to sue on an effort to “police” agency compliance with the law, or on interests protected by a statute other than the one on which his suit is based.

To discuss these cases we have Thomas Gede, who is a commissioner on the Indian Law and Order Commission and Of Counsel with Bingham McCutchen LLP.

United States v. Jones - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 2 May 2012 16:18:14 GMT

On January 23, 2012, the Supreme Court announced its decision in United States v. Jones. The question in this case is whether police officers’ warrantless installation and use of a GPS tracking device on a suspect’s vehicle violates the Fourth Amendment. A lower court had reversed the defendant’s conviction on the grounds that admission of the evidence obtained from the GPS violated the Fourth Amendment.

By a vote of 9-0, the Supreme Court affirmed the lower court’s judgment. Justice Scalia, joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor, held for the majority that the government’s attachment and use of the GPS was a search for purposes of the Fourth Amendment. Justice Sotomayor also filed a separate concurring opinion. Justice Alito, joined by Justices Ginsburg, Breyer, and Kagan, filed an opinion concurring in the judgment but relying upon a different rationale.

To discuss the case, we have Paul Rosenzwieg, who is the Principal and founder of Red Branch Law and Consulting, PLLC.

Wood v. Milyard - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 27 Apr 2012 22:58:33 GMT

On April 24, 2012, the Supreme Court announced its decision in Wood v. Milyard. The question in this case concerns the authority of a federal court to raise, on its own initiative, a statute of limitations defense to a habeas corpus petition.

In an opinion delivered by Justice Ginsburg, the Court held that a federal court may generally raise a statute of limitations defense on its own initiative--but may not do so where the State was aware of the defense and intelligently chose not to rely upon it in the court of first instance. Because the State had deliberately waived the limitations defense in this case, the Court explained, the U.S. Court of Appeals for the Tenth Circuit abused its discretion by resurrecting the defense on appeal. Accordingly, the Supreme Court reserved the Tenth Circuit’s dismissal of the habeas petition and remanded the case for further proceedings.

Chief Justice Roberts and Justices Kennedy, Breyer, Alito, Sotomayor, and Kagan joined Justice Ginsburg’s opinion. Justice Thomas filed an opinion concurring in the judgment, which was joined by Justice Scalia.

To discuss the case, we have Brian Means, who is a federal habeas corpus litigator in the Eastern District of California, the U.S. Court of Appeals for the Ninth Circuit, and the United States Supreme Court.

Dorsey v. United States and Hill v. United States - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 27 Apr 2012 00:36:34 GMT

On April 17, 2012 the Supreme Court heard oral argument in Dorsey v. United States and Hill v. United States. Both cases involve the Fair Sentencing Act of 2010 (FSA), which dramatically increased the quantities of crack cocaine that must be involved in various drug trafficking offenses before certain mandatory minimum penalties will be triggered. The question in Dorsey v. United States is whether the FSA applies to all defendants sentenced after its enactment, even if their crime and conviction occurred prior to its passage. The analogous question in Hill v. United States is whether the relevant date for determining the applicability of the FSA is the date of the underlying offense or the actual date of sentencing.

To discuss the cases, we have William Otis, who is an adjunct professor at Georgetown University Law Center and a former federal prosecutor.

Salazar v. Ramah Navajo Chapter - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 26 Apr 2012 15:01:25 GMT

On April 18, 2012, the Supreme Court heard oral argument in Salazar v. Ramah Navajo Chapter. This case involves the federal Indian Self-Determination and Education Assistance Act, which allows Native American tribes to take over the administration of various federally funded educational and social service programs, and to receive full coverage for the cost of doing so. The question in this case is whether, given that Congress has capped the total amount that may be expended to cover such costs--and that the amount is inadequate to cover all tribes’ costs in full--the government may simply divide the available support funds among the tribes, or must pay the support costs of each tribe in full notwithstanding the statutory cap.

To discuss the case, we have Jonathan Cohn, who is a Partner in the Washington D.C. office of Sidley Austin LLP.

Caraco Pharmaceutical Laboratories, Ltd. v. Novo Nordisk - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 25 Apr 2012 23:31:04 GMT

On April 17, 2012, the Supreme Court announced its decision in Caraco Pharmaceutical Laboratories, Ltd. v. Novo Nordisk. This case involves drug manufacturer “use codes,” which are patent descriptions that brand name drug manufacturers submit to the Food and Drug Administration for use in determining whether a given generic drug, if approved for marketing, will infringe a patent held by a brand name manufacturer. The question in this case is whether a generic drug company can, in the course of a patent infringement suit brought by a brand name drug company, file a counterclaim challenging the accuracy of a particular use code.

In an opinion delivered by Justice Kagan, the Court unanimously held that a generic drug manufacturer may indeed challenge the use code in this manner. Justice Sotomayor filed a concurring opinion.

To discuss the case, we have Gregory Dolin, who is Associate Professor and Co-Director of the Center for Medicine and Law at the University of Baltimore School of Law.

Mohamad v. Palestinian Authority - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 20 Apr 2012 16:52:55 GMT

On April 18, 2012 the Supreme Court announced its decision in Mohamad v. Palestinian Authority. The question in this case was whether organizations, and not merely natural persons, can be held liable for violations of the Torture Victim Protection Act (TVPA).

In an opinion delivered by Justice Sotomayor, the Court held unanimously that the term "individuals" in the Torture Victim Protection Act encompasses only natural persons, such that organizations cannot be held liable for violations of the TVPA. Justice Scalia joined the majority opinion in all except Part III-B, and Justice Breyer filed a concurring opinion.

To discuss the case, we have Eugene Kontorovich, who is a professor at the Northwestern University School of Law.

Christopher v. SmithKline Beecham Corp. - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 19 Apr 2012 15:42:22 GMT

On April 16, 2012, the Supreme Court heard oral argument in Christopher v. SmithKline Beecham Corp. This case presents two questions: first, whether courts must defer to the Department of Labor’s interpretation of its regulations addressing the “outside salesman” exemption from the overtime requirements imposed on employers by the Fair Labor Standards Act; and second, whether pharmaceutical sales representatives, who cannot themselves sell prescription drugs, are considered “outside salesmen” and thus not entitled to overtime pay under the Act.

To discuss the case, we have Anthony Caso, who is an Associate Professor at Chapman University School of Law.

Rehberg v. Paulk - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 13 Apr 2012 16:03:35 GMT

On April 2, 2012 the Supreme Court announced its decision in Rehberg v. Paulk. The question in this case was whether a person who served as a “complaining witness” in a grand jury proceeding, and was later accused of presenting false testimony, was entitled to the same absolute immunity from suit that protects a witness who testifies at trial.

In an opinion delivered by Justice Alito, the Court unanimously held that the a grand jury witness is entitled to the same immunity as a trial witness; namely, absolute immunity from any civil rights claim that is based on the witness’ testimony.

To discuss the case, we have William Thro, who is University Counsel and Associate Professor of Constitutional Studies at Christopher Newport University, and the former Solicitor General of Virginia (2004-08).

Martinez v. Ryan - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 11 Apr 2012 00:38:19 GMT

On March 20, 2012 the Supreme Court announced its decision in Martinez v. Ryan. The question in this case was whether the failure of a state prisoner’s attorney to raise, in state collateral review proceedings, a claim of ineffective assistance of counsel at trial bars a federal court from considering the claim on subsequent federal habeas review.

In an opinion delivered by Justice Kennedy, the Court held by a vote of 7-2 that such a “procedural default” does not bar a federal habeas court from considering a substantial claim of ineffective assistance at trial if, in the initial collateral review proceeding, there was no counsel or counsel in that proceeding was ineffective. The Court therefore reversed the lower court’s ruling to the contrary and remanded the case for further proceedings. Justice Kennedy’s opinion for the Court was joined by the Chief Justice and Justices Ginsburg, Breyer, Alito, Sotomayor, and Kagan. Justice Scalia filed a dissenting opinion, which was joined by Justice Thomas.

To discuss the case, we have Ward Campbell, who is the Supervising Deputy Attorney General at the California Department of Justice.

Coleman v. Maryland Court of Appeals - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 6 Apr 2012 22:20:22 GMT

On March 20, 2012, the Supreme Court announced its decision in Coleman v. Maryland Court of Appeals. The question here was whether Congress, in passing the “self-care” provision of the Family and Medical Leave Act, validly abrogated the sovereign immunity of states. Under the self-care provision, a state worker may sue if the state interferes with the worker’s statutory right to a certain amount of leave due to a personal, debilitating health condition. Here, the lower courts had dismissed such a lawsuit.

By a vote of 5-4 the Court affirmed the judgment of the lower courts, but did so without a majority opinion. Justice Kennedy, joined by Chief Justice Roberts and Justices Thomas and Alito, filed a plurality opinion concluding that sovereign immunity barred the state worker’s suit. Justice Thomas also filed a separate concurring opinion. Justice Scalia filed an opinion concurring in the judgment, but relying upon a different rationale than the plurality. Justice Ginsburg filed a dissenting opinion in which Justice Breyer joined, and in which Justices Sotomayor and Kagan joined as to all except footnote one.

To discuss the case, we have Elizabeth Price Foley, who is a Professor at the Florida International University College of Law.

Florence v. Board of Chosen Freeholders - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 6 Apr 2012 21:36:49 GMT

On April 2, 2012 the Supreme Court announced its decision in Florence v. Board of Chosen Freeholders. The question in this case was whether the Fourth Amendment permits the government to conduct a visual strip search of any person who is admitted to jail, even when there is no reasonable basis for suspecting that the person has hidden weapons or contraband.

In an opinion delivered by Justice Kennedy, the Court held by a vote of 5-4 that the government may conduct a visual strip search of any person who is to be admitted to the general population of a jail. The Chief Justice, as well as Justices Scalia and Alito, joined Justice Kennedy’s opinion in full. Justice Thomas joined that opinion as to all except Part IV. The Chief Justice and Justice Alito also wrote separate concurring opinions. Justice Breyer filed a dissenting opinion, which was joined by Justices Ginsburg, Sotomayor and Kagan.

To discuss the case, we have Sarah Hart, who is a prosecutor in Philadelphia.

Zivotofsky v. Clinton - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 4 Apr 2012 21:02:10 GMT

On March 26, 2012 the Supreme Court announced its decision in Zivotofsky v. Clinton (also known as M.B.Z. v. Clinton). This case presented two questions concerning U.S. citizens born in Jerusalem: (1) whether courts can enforce a federal statute directing the Secretary of State to, if requested, record the birthplace of such citizens on passports and consular reports as “Israel”; and (2) whether that statute improperly interferes with the President’s constitutional authority to recognize foreign sovereigns. The lower appellate court dismissed the case on the grounds that these issues presented a nonjusticeable “political question.”

By a vote of 8-1 the Supreme Court vacated the appellate court’s decision and remanded the case for further proceedings. In an opinion joined by Justices Scalia, Kennedy, Thomas, Ginsburg, and Kagan, Chief Justice Roberts indicated that federal courts “are fully capable of determining whether [the] statute may be given effect, or instead must be struck down in light of authority conferred on the Executive by the Constitution.” Justice Sotomayor filed an opinion concurring in part and concurring in the judgment, in which Justice Breyer joined as to Part I. Justice Alito filed an opinion concurring in the judgment, and Justice Breyer filed a dissenting opinion.

To discuss the case, we have John Elwood, who is a partner at Vinson & Elkins’s appellate group.

Sester v. U.S. - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 2 Apr 2012 22:29:36 GMT

On March 28, 2012, the Supreme Court announced its decision in Sester v. U.S. The question in this case was whether a federal court can order that a federal criminal sentence begin to run after the criminal defendant finishes serving an anticipated state sentence that that has not yet been imposed by the state court.

In an opinion delivered by Justice Scalia, the Court held by a vote of 6-3 that a federal court has discretion to impose such a sentence, and affirmed the judgment of the lower courts. Justice Breyer filed a dissenting opinion, which was joined by Justices Kennedy and Ginsburg.

To discuss the case, we have Allison Larsen, who is an Assistant Professor of Law at William and Mary Law School.

Credit Suisse Securities v. Simmonds - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 30 Mar 2012 21:44:33 GMT

On March 26, 2012, the Supreme Court announced its decision in Credit Suisse Securities v. Simmonds. The question in this case was whether, under the Securities and Exchange Act of 1934, the two-year time limit on filing lawsuits to force a corporate insider to disgorge “short swing” profits only begins to run when the insider files the disclosure statement required by the Act. The U.S. Court of Appeals for the Ninth Circuit had ruled that the limitations period was tolled--and therefore did not begin to run--until the disclosure statement was filed.

In an opinion delivered by Justice Scalia and joined by all other Justices except the Chief Justice (who took no part in the consideration or decision of the case), the Court held that, even assuming the two-year limitations period could be extended, the Ninth Circuit erred in determining it was tolled until the disclosure statement was filed. The Court further indicated that it was divided 4-4 on whether the Ninth Circuit erred in rejecting the claim below that the two-year time limit created a “period of repose” not subject to equitable tolling. As a result, the Court affirmed that determination without precedential effect, but otherwise vacated the Ninth Circuit ruling and remanded the case for further proceedings.

To discuss the case, we have Deanne Maynard and Jordan Eth, who are both Partners and Morrison & Foerster, LLP.

Federal Aviation Administration v. Cooper - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 30 Mar 2012 20:23:39 GMT

On March 28, 2012 the Supreme Court announced its decision in Federal Aviation Administration v. Cooper. This case involves the Privacy Act, which governs the manner in which executive branch agencies collect, use and disseminate records containing information about individuals. The Act authorizes an award of money damages to an individual who establishes that government misuse of such records was intentional or willful and resulted in the individual suffering “actual damages.” The question here was whether mental and emotional injuries qualify as “actual damages” under the Privacy Act.

In an opinion delivered by Justice Alito, the Court held by a vote of 5-3 that mental and emotional distress does not constitute “actual damages” under the Privacy Act. Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas joined Justice Alito’s opinion. Justice Sotomayor field a dissenting opinion, which was joined by Justices Ginsburg and Bryer. Justice Kagan did not participate in the consideration or decision of the case.

To discuss the case, we have Richard Peltz-Steele, who is an Associate Professor at the University of Massachusetts School of Law-Dartmouth.

Fla. v. Dept. of Health and Human Services & Nat'l Fed. of Ind. Business v. Sebelius - Severability - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 30 Mar 2012 19:39:54 GMT

On March 28, 2012, the Supreme Court heard oral argument in Fla. v. Dept. of Health and Human Services and Nat'l Fed. of Ind. Business v. Sebelius, two of the three cases before the Court involving the Patient Protection and Affordable Care Act of 2010, sometimes referred to as Obamacare or the Healthcare Act. Both cases raise the question whether, if the individual mandate requiring Americans to obtain health insurance or pay a penalty is deemed unconstitutional, the remainder of the Healthcare Act still survives. This is commonly referred to as a question of severability.

Both cases further raise the question whether Congress can lawfully withhold federal Medicaid funds from States that do not comply with the requirements of the Healthcare Act, or whether this amounts to unlawful coercion. That issue will be the subject of a separate podcast.

To discuss the issue of severability, we have David Rivkin, who is a Partner at Baker Hostetler, and Ian Millhiser, who is a policy analyst at the Center for American Progress.

Lafler v. Cooper and Missouri v. Frye - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 30 Mar 2012 16:55:20 GMT

On March 21, 2012 the Supreme Court announced its decisions in Lafler v. Cooper and Missouri v. Frye. The questions in both cases revolved around what happens when a criminal defendant receives deficient legal advice. In Lafler v. Cooper, the Court considered whether a criminal defendant who rejects a favorable plea offer based on his lawyer’s advice and later is convicted and received a harsher sentence can seek to overturn that sentence on the grounds that his attorney was unconstitutionally deficient. Missouri v. Frye considered whether a criminal defendant whose lawyer failed to communicate a plea offer from the prosecution can successfully claim ineffective assistance of counsel if he is later convicted and sentenced more harshly under a less favorable plea agreement.

In Lafler v. Cooper, the Court vacated and remanded the judgment of the lower court, holding by a vote of 5-4 that a criminal defendant who (a) rejects a plea offer based on legal advice so deficient that it violates the Sixth Amendment, and (b) later is convicted at trial and receives a harsher sentence, can (c) seek reconsideration of his sentence if he can show a reasonable probability that, but for the ineffective assistance of counsel, (1) the plea agreement would have been presented to and accepted by the court, and (2) the subsequent conviction and sentence (or both) under that plea agreement would have been less severe than the judgment and sentence that were actually imposed. Justice Kennedy delivered the opinion of the Court, which was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Scalia filed a dissenting opinion that was joined by Justice Thomas in full and by the Chief Justice as to all except Part IV, and Justice Alito filed a separate dissenting opinion.

The Court likewise vacated and remanded the judgment of the lower court by a vote of 5-4 in Missouri v. Frye, holding that the Sixth Amendment right to effective assistance of counsel in criminal cases includes the right to notice from one’s attorney of the terms of a plea offer from the prosecution. Failure to convey such terms to the defendant violates that right. To obtain relief, however, the defendant must still establish a reasonable probablility that, had he received effective assistance of counsel, (a) the defendant would have accepted the plea offer, (b) the resulting plea agreement would have been entered by the court, and (c) that agreement would have resulted in a plea to a lesser charge or a lighter sentence than was actually imposed. Justice Kennedy delivered the opinion of the Court, which was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Scalia, joined by the Chief Justice and Justices Thomas and Alito, filed a dissenting opinion.

To discuss the cases, we have Kent Scheidegger, who is the Legal Director of the Criminal Justice Legal Foundation.

U.S. Department of Health and Human Services v. Florida - Individual Mandate - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 30 Mar 2012 16:02:09 GMT

On March 26-27, 2012, the Supreme Court heard oral argument in U.S. Department of Health and Human Services v. Florida, which is one of three cases before the Court involving the Patient Protection and Affordable Care Act of 2010, sometimes referred to as Obamacare or the Healthcare Act. This case presents the question whether Congress has power under the Constitution to require that virtually all Americans either obtain health insurance or pay a penalty. This requirement is commonly referred to as the individual mandate.

The case also raises the question whether the Anti-Injunction Act prohibits a challenge to the validity of the Healthcare Act until the individual mandate takes effect in 2014. This question will be the subject of a separate podcast.

To discuss the individual mandate we have Ilya Somin, who is an Associate Professor at the George Mason University School of Law, and Orin Kerr, who is a Professor of Law at the George Washington University Law School.

U.S. Department of Health and Human Services v. Florida - Anti-Injunction - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 29 Mar 2012 15:53:31 GMT

On March 26, 2012, the Supreme Court heard oral argument in U.S. Department of Health and Human Services v. Florida, which is one of three cases before the Court involving the Patient Protection and Affordable Care Act of 2010, sometimes referred to as Obamacare or the Healthcare Act. This case presents the question whether the Anti-Injunction Act prohibits a challenge to the validity of the Healthcare Act until certain provisions take effect in 2014.

This case also presents the question whether Congress has power under the Constitution to require that virtually all Americans either obtain health insurance or pay a penalty. This requirement is commonly referred to as the individual mandate, and will be the subject of a separate podcast.

To discuss the Anti-Injunction Act issue we have Kevin Walsh, who is an Assistant Professor of Law at the University of Richmond Law School, and Steve Johnson, who is a Professor at the Florida State University College of Law.

Jackson v. Hobbs and Miller v. Alabama - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 28 Mar 2012 20:28:53 GMT

On March 20, 2012 the Supreme Court heard oral argument in Jackson v. Hobbs and Miller v. Alabama. The question in both cases is whether a sentence of life in prison without possibility of parole, imposed for a murder committed when the defendant was fourteen years old, constitutes “cruel and unusual punishment” in violation of the Eighth and Fourteenth Amendments.

To discuss the cases, we have John Stinneford, who is an assistant professor at the University of Florida Levine School of Law.

Astrue v. Capato - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 28 Mar 2012 20:26:45 GMT

On March 19, 2012 the Supreme Court heard oral argument in Astrue v. Capato. The question in this case is whether twins who were conceived in vitro after the death of their biological father, and who cannot inherit the father’s personal personal property under state law, are nevertheless eligible for Social Security child survivor benefits.

To discuss the case, we have Adam White, who is Counsel at the Washington law firm Boyden Gray and Associates.

Fla. v. Dept. of Health and Human Services & Nat'l Fed. of Ind. Business v. Sebelius - Coercion - Pre-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 27 Mar 2012 22:04:41 GMT

On March 28, 2012, the Supreme Court will hear oral argument in Fla. v. Dept. of Health and Human Services and Nat'l Fed. of Ind. Business v. Sebelius, two of the three cases before the Court involving the Patient Protection and Affordable Care Act of 2010, sometimes referred to as Obamacare or the Healthcare Act. A common question raised in these two cases is whether Congress can lawfully withhold federal Medicaid funds from States that do not comply with the requirements of the Healthcare Act, or whether this amounts to unlawful coercion.

Both cases also raise the question whether, if the individual mandate requiring Americans to obtain health insurance or pay a penalty is deemed unconstitutional, the remainder of the Healthcare Act still survives. That issue will be the subject of a separate podcast.

To discuss the coercion issue, we have Richard Epstein, professor at New York University School of Law and professor emeritus at the University of Chicago Law School, and Michael Greve, who is the John G. Searle Scholar at the American Enterprise Institute. Dean Reuter, Vice President and Director of the Practice Groups at the Federalist Society for Law and Public Policy Studies, moderates the discussion.

Sackett v. EPA - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 27 Mar 2012 21:56:10 GMT

On March 21, 2012, the Supreme Court announced its decision in Sackett v. EPA. This case involves two landowners who graded a lot in a residential subdivision so that they could build a home there. The Environmental Protection Agency then issued to the landowners an administrative compliance order stating that the graded lot was a wetland, and directing the landowners either to remove the fill and restore the lot to its original condition, or risk civil fines in the amount of thousands of dollars for each day of non-compliance. The question before the Court was whether the landowners may seek judicial review of the EPA’s compliance order before it is actually enforced against them and, if the answer to that question is “no,” whether the compliance order deprives the landowners of due process of law.

In an opinion delivered by Justice Scalia, the Court held unanimously that the landowners may file suit in court to challenge the EPA’s administrative compliance order before it is enforced against them. Justices Ginsburg and Alito each filed concurring opinions.

To discuss the case, we have Elizabeth Papez, who is a Partner at Winston & Strawn, LLP.

Southern Union Company v. United States - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 27 Mar 2012 20:38:03 GMT

On March 19, 2012 the Supreme Court heard oral argument in Southern Union Company v. United States. The question in this case is whether the imposition of criminal fines is subject to the Fifth and Sixth Amendment principles articulated in Apprendi v. New Jersey, which holds that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

To discuss the case, we have Ryan Scott, who is an Associate Professor at Indiana University Maurer School of Law.

Mayo Collaborative Services v. Prometheus Laboratories, Inc. - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 26 Mar 2012 19:54:06 GMT

On March 20, 2012 the Supreme Court announced its decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc. The question in this case was whether a patent can be issued for an observed correlation between blood test results and patient reactions to prescription drugs.

In an opinion delivered by Justice Breyer, the Court unanimously held that such a patent effectively attempts to claim underlying laws of nature, and is therefore invalid.

To discuss the case we have Adam Mossoff, who is a professor at George Mason University School of Law.

Reichle v. Howards - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 23 Mar 2012 22:19:46 GMT

On March 21, 2012, the Supreme Court heard oral argument in Reichle v. Howards. This case concerns an incident that occurred when a citizen briefly touched Vice President Cheney during a public appearance, made an anti-war remark to him, and was arrested some time later by Secret Service agents but was not ultimately prosecuted. The question in this case is twofold: (1) whether, if probable cause to make the arrest did exist, the citizen may nevertheless sue the agents for retaliatory conduct in violation of the First Amendment; and (2) whether the agents were entitled to immunity from such a lawsuit under federal law.

To discuss the case, we have Scott Broyles, who is an Assistant Professor at Charlotte School of Law.

Roberts v. Sea-Land Services - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 22 Mar 2012 22:21:23 GMT

On March 20, 2012, the Supreme Court announced its decision in Roberts v. Sea-Land Services. This case involves the Longshore and Harbor Workers’ Compensation Act, which provides compensation in cases of disability but caps benefits at twice the national average weekly wage for the fiscal year in which the injured worker is “newly awarded compensation.” The question here was whether the determination as to when the worker is “newly awarded compensation” is affected by the issuance of a compensation order on the worker’s behalf.

In an opinion delivered by Justice Sotomayor, the Court held by a vote of 8-1 that a worker is ”newly awarded compensation” when the worker “first becomes disabled and thereby becomes statutorily entitled to benefits, no matter whether, or when, a compensation order issues on his behalf.” Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, Breyer, Alito, and Kagan joined Justice Sotomayor’s opinion. Justice Ginsburg filed an opinion concurring in part and dissenting in part.

To discuss the case, we have Rod Sullivan, who is an assistant professor at the Florida Coastal School of Law.

Armour v. Indianapolis - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 14 Mar 2012 16:36:45 GMT

On February 29, 2012, the Supreme Court heard oral argument in Armour v. Indianapolis. The question presented in this case is whether a local government violated the U.S. Constitution’s Equal Protection Clause when it forgave the obligations of taxpayers who had elected to pay on a multi-year installment plan, but refused to refund payments made by similarly situated taxpayers who had paid their assessments up front and in full.

To discuss the case, we have Shay Dvoretzky, who is a Partner at Jones Day.

Martel v. Clair - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 14 Mar 2012 16:33:22 GMT

On March 5, 2012, the Supreme Court announced its decision in Martel v. Clair. The question in this case was whether a state prisoner on death row is entitled to replace his court-appointed attorney with a new court-appointed attorney on the grounds that--according to the prisoner--the first court-appointed attorney had failed to pursue potentially important evidence relating to prisoner’s case. The federal district court had denied the prisoner’s request, but the U.S. Court of Appeals for the Ninth Circuit determined that the “interests of justice” standard applied in non-capital cases should govern the prisoner’s request for substitution of counsel, and directed the lower court to reconsider the prisoner’s request.

In a unanimous opinion delivered by Justice Kagan, the Supreme Court reversed the judgment of the Ninth Circuit and remanded the case for further proceedings. The Court agreed that the “interests of justice” should apply, but held that the federal district court had not abused its discretion in denying the prisoner’s request for new counsel.

To discuss the case, we have Ronald Eisenberg, who is the Deputy District Attorney for the Law Division at the Philadelphia District Attorney’s Office.

Marmet Health Care Center, Inc. v. Brown - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 12 Mar 2012 22:40:29 GMT

On February 21, 2012, the Supreme Court announced its decision in Marmet Health Care Center, Inc. v. Brown. The question in this case was whether the Federal Arbitration Act (“FAA”) preempted a determination by West Virginia courts that, as a matter of state public policy, pre-dispute arbitration agreements are not enforceable with respect to claims made against nursing homes for injury or wrongful death resulting from negligence.

In a unanimous per curiam opinion, the U.S. Supreme Court vacated the decision of the West Virginia Supreme Court of Appeals, holding that the state public policy was preempted by the FAA. The high Court also remanded the case, however, so that the West Virginia court could determine whether the arbitration agreement at issue was otherwise unenforceable under state common law principles that are not specific to arbitration.

To discuss the case, we have Christopher Kratovil, who is a litigation partner at Dykema Gossett, PLLC.

PPL Montana, LLC v. Montana - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 12 Mar 2012 19:41:22 GMT

On February 22, 2012, the Supreme Court announced its decision in PPL Montana, LLC v. Montana. This case involved a dispute over title to portions of various riverbeds in the State of Montana, riverbeds now occupied by hydropower projects owned by a utility company. The dispute turns on the extent to which the rivers involved are deemed “navigable,” because States generally take title to lands beneath navigable waters. The question before the Court was whether the test for navigability looks only to the navigability of a river at the time the State joined the Union, or also includes subsequent and present-day use. The Montana Supreme Court ruled that the state of Montana owns and may charge the hydropower projects rent for use of riverbed.

In an opinion delivered by Justice Kennedy, the Court unanimously reversed the decision of the Montana Supreme Court, declaring it “based on an infirm legal understanding of the Court’s rules of navigability for title under the equal-footing doctrine.” The proper test, the Court concluded, is whether, at the time of statehood, the pertinent segments of the river in question allowed the passage of a commercial vessel or instead required a portage.

To discuss the case, we have Thomas Merrill, who is the Charles Evans Hughes Professor of Law at Columbia Law School.

Messerschmidt v. Millender - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 9 Mar 2012 21:39:50 GMT

On February 22, 2012, the Supreme Court announced its decision in Messerschmidt v. Millender. This case presented two questions. The first was whether police officers are entitled to immunity from suit when their search of a gang member’s residence, for firearms and gang-related items, was based on a warrant that a court later determined to be overly broad and not reasonably supported by probable cause. The second question was whether the standard applicable to immunity determinations in such circumstances--a standard that asks whether the warrant was so lacking in indicia of probable case as to render official belief in its existence entirely unreasonable--is problematic and should be altered.

In an opinion delivered by Chief Justice Roberts, the Court held by a vote of 6-3 that the officers searching the residence were entitled to immunity from suit with respect to their search for firearms and gang-related materials. The Court also declined to refashion the “lacking indicia of probable cause” standard. Justices Scalia, Kennedy, Thomas, Breyer, and Alito joined the majority opinion. Justice Breyer also filed a concurring opinion, and Justice Kagan filed an opinion concurring in part and dissenting in part. Justice Sotomayor, joined by Justice Ginsburg, filed a dissenting opinion.

To discuss the case, we have Joshua Skinner, a member at Fanning Harper Martinson Brandt & Kutchin, P.C.

Kurns v. Railroad Friction Products Corp. - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 9 Mar 2012 18:58:10 GMT

On February 29, 2012, the Supreme Court announced its decision in Kurns v. Railroad Friction Products Corp. The question in this case was whether the federal Locomotive Inspection Act (LIA) preempted design-defect and failure-to-warn claims brought under state law for injuries relating to asbestos contained in locomotive parts.

In an opinion delivered by Justice Thomas, the Court held by a vote of 6-3 that the LIA did preempt such state law claims. Chief Justice Roberts and Justices Scalia, Kennedy, Alito, and Kagan joined Justice Thomas’ opinion. Justice Kagan also filed a concurring opinion. Justice Sotomayor, joined by Justices Ginsburg and Breyer, filed an opinion concurring in part and dissenting in part.

To discuss the case we have Mark Behrens, who is a partner at Shook, Hardy & Bacon, L.L.P.

Howes v. Fields - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 8 Mar 2012 22:16:53 GMT

On February 21, 2012, the Supreme Court announced its decision in Howes v. Fields. The question in this case was whether a prisoner who was removed from the general prison population for the purpose of being questioned about outside events was “in custody” during his interrogation, and therefore entitled to Miranda warnings.

In an opinion delivered by Justice Alito, the Court held by a vote of 6-3 that, under the facts of this case, the prisoner was not “in custody” for Miranda purposes. Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Kagan joined Justice Alito’s opinion. Justice Ginsburg filed an opinion concurring in part and dissenting in part, which was joined by Justices Breyer and Sotomayor.

To discuss the case, we have Mark Brnovich, who is the Director of the Arizona Department of Gaming and a former federal and state prosecutor.

Elgin v. Dep't of the Treasury - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 8 Mar 2012 21:11:03 GMT

On February 27, 2012, the Supreme Court heard oral argument in Elgin v. Dep’t of the Treasury. This case involves federal employees who contend that their employment was improperly terminated in violation of the Constitution and are seeking reinstatement, an equitable form of relief. The question is whether federal district courts have jurisdiction under the Civil Service Reform Act to address constitutional claims for equitable relief.

To discuss the case, we have Thomas Merrill, who is the Charles Evans Hughes Professor of Law at Columbia Law School.

Douglas v. Independent Living Center of Southern California - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 7 Mar 2012 20:04:05 GMT

On February 22, 2012, the Supreme Court announced its decision in Douglas v. Independent Living Center of Southern California, et al. The question in this series of cases was whether Medicaid providers and recipients can bring suit under the U.S. Constitution’s Supremacy Clause to enforce a federal Medicaid law. In their view that law preempts state Medicaid statutes that would reduce payments to providers, and the U.S. Court of Appeals for the Ninth Circuit agreed.

In an opinion delivered by Justice Breyer, the Court by a vote of 5-4 vacated the Ninth Circuit decisions and remanded the cases for further proceedings. Because a federal agency had approved the state statutes at issue during the course of the litigation, the Court held, the cases should be remanded to the Ninth Circuit for determination as to whether the parties’ dispute should be resolved under the Administrative Procedure Act. Justices Kennedy, Ginsburg, Sotomayor and Kagan joined Justice Breyer’s opinion. Chief Justice Roberts filed a dissenting opinion, which was joined by Justices Scalia, Thomas, and Alito.

To discuss the case, we have Rick Hills, who is the William T. Comfort III Professor of Law at New York University School of Law.

United States v. Alvarez - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 7 Mar 2012 18:14:41 GMT

On February 22, 2012, the Supreme Court heard oral argument in United States v. Alvarez. The question in this case is whether a federal statute that makes it a crime to represent falsely that one has received military medals or decorations violates the First Amendment.

To discuss the case, we have Aaron Street, who is a Partner at Baker Botts, LLP.

Kiobel v. Royal Dutch Petroleum and Mohamad v. Rajoub - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 7 Mar 2012 18:11:23 GMT

On February 28, 2012 the Supreme Court heard oral argument in Kiobel v. Royal Dutch Petroleum and Mohamad v. Rajoub. Kiobel v. Royal Dutch Petroleum involves the Alien Tort Statute (ATS), which permits non-U.S. citizens to bring a lawsuit in federal court in order to seek relief for certain violations of international law. The question is whether corporations, and not merely individuals, can be held liable in an ATS lawsuit--and whether that issue affects the jurisdiction of the court even to hear the case. Mohamad v. Rajoub involves the Torture Victim Protection Act (TVPA), and presents a similar question: whether corporations, and not merely natural persons, can be held liable for violations of the TVPA.

On March 5, 2012, however, the Supreme Court put the Kiobel case back on the calendar for re-argument, and directed the parties to brief whether and under what circumstances the ATS allows courts to address violations of the law of nations that occur outside the United States.

To discuss the cases, we have Eugene Kontorovich, who is a professor at the Northwestern University School of Law.

Magner v. Gallagher - Post-Order SCOTUScast

info@fed-soc.org (The Federalist Society) — 6 Mar 2012 20:16:12 GMT

On February 10, 2012, the Supreme Court case Magner v. Gallagher was dismissed by agreement of the parties involved. This case presented two questions: (1) whether rental property owners in St. Paul, Minnesota could, under the Fair Housing Act, challenge the city’s “aggressive enforcement” of its housing code on the theory that such enforcement constituted “disparate impact” race discrimination; and (2) if so, how those disparate impact claims should be analyzed.

To discuss the case, we have Roger Clegg, who is President and General Counsel of the Center for Equal Opportunity.

Holder v. Gutierrez, Holder v. Sawyers and Vartelas v. Holder - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 21 Feb 2012 16:11:59 GMT

On January 18, 2012 the Supreme Court heard oral argument in Holder v. Gutierrez and Holder v. Sawyers, as well as Vartelas v. Holder. Non-citizens may be able to avoid deportation if they have lived in the United States for at least seven years and have been lawful permanent residents for at least five years. The central issue in Holder v. Gutierrez and Holder v. Sawyers is whether a non-citizen who cannot himself meet these requirements can nevertheless avoid deportation if while still a minor he lived with a parent who could meet these requirements.

The issue in Vartelas v. Holder is whether a statute providing for the denial of reentry to a lawful permanent resident who travels abroad after having been convicted of certain offenses can be applied retroactively to a legal permanent resident who was convicted prior to the passage of the statute.

To discuss these cases we have Michael Scaperlanda, who is a professor at the University of Oklahoma College of Law.???

Perry v. Perez - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 3 Feb 2012 20:31:10 GMT

On January 20, 2012, the Supreme Court announced its decision in Perry v. Perez. This case involved efforts to redraw Texas’ electoral districts due to an increase of four million residents identified by the 2010 Census. Texas proposed a new electoral plan, but as a “covered jurisdiction” was required by the Voting Rights Act to obtain preclearance from a special court in Washington, D.C. before the plan could take effect. While Texas’ petition for preclearance was pending, several groups challenged the proposed plan in federal court in Texas, which then drafted an interim electoral plan for use in upcoming 2012 elections. The question before the Supreme Court was whether this interim plan improperly disregarded details of the plan proposed by Texas.

In a per curiam opinion, the Court unanimously held that it was unclear whether the federal court in Texas had followed appropriate standards in drafting its interim plan. The Court therefore vacated the interim plan and remanded the case for further proceedings. Justice Thomas filed a concurring opinion.

To discuss the case, we have Ilya Shapiro, who is a senior fellow in constitutional studies at the Cato Institute.

National Meat Association v. Harris - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 2 Feb 2012 23:21:49 GMT

On January 23, 2012, the Supreme Court announced its decision in National Meat Association v. Harris. The question in this case was whether the Federal Meat Inspection Act (FMIA) preempts a California statute prescribing what slaughterhouses must do with pigs that are unable to walk. The lower court determined that the state statute did not regulate the inspection or slaughtering process itself, and therefore was not preempted by the FMIA.

In an opinion delivered by Justice Kagan, the Supreme Court unanimously voted to reverse the decision of the lower court, holding the FMIA does indeed preempt the California statute at issue.

To discuss the case we have John Ohlendorf, who is an Olin-Searle-Smith Fellow in Law at Northwestern University School of Law.

Filarsky v. Delia - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 2 Feb 2012 23:20:08 GMT

On January 17, 2012, the Supreme Court heard oral argument in Filarsky v. Delia. The question in this case is whether a lawyer retained to assist government employees with an internal affairs investigation may, in a subsequent lawsuit against the lawyer arising out of the lawyer’s conduct during the investigation, assert the “qualified immunity” defense available to government employees in such circumstances.

To discuss the case, we have Scott Martin, who is an associate in the DC office of Gibson, Dunn, and Crutcher.

Reynolds v. United States - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 1 Feb 2012 18:30:02 GMT

On January 23, 2012, the Supreme Court announced its decision in Reynolds v. United States. The question in this case concerns whether the Sex Offender Registration and Notification Act (SORNA) requires an offender who was convicted before the passage of SORNA to register thereunder even though the legislation appears to leave that determination to the Attorney General. A lower court determined that SORNA itself required pre-SORNA offenders to register even if the Attorney General had not yet deemed that requirement applicable to them.

In an opinion delivered by Justice Breyer, the Supreme Court reversed the lower court’s decision and remanded the case for further proceedings. By a vote of 7-2, the Court held that SORNA’s registration requirements, properly interpreted, do not apply to pre-SORNA offenders until the Attorney General so specifies. Justice Scalia filed a dissenting opinion, which was joined by Justice Ginsburg.

To discuss the case, we have Michael DeBow, who is a professor at the Samford University Cumberland School of Law.

FCC v. Fox - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 1 Feb 2012 18:27:21 GMT

On January 10, 2012 the Supreme Court heard oral argument in FCC v. Fox. The question in this case is whether the Federal Communications Commission’s standards for indecency are too vague to be constitutional.

To discuss the case we have Erik Jaffe, a Washington, D.C. attorney who specializes in appellate litigation, and Patrick Brennan, who is Associate Dean of Academic Affairs and Professor at the Villanova University School of Law.

Bluman v. FEC - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 1 Jan 2012 18:20:40 GMT

On January 9, 2012, the Supreme Court issued its decision in Blumen v. FEC. The question in this case was whether a federal statute that prohibits foreign nationals, who in this case were present in the United States on temporary work visas, from making contributions to candidates or to political parties, or from making express advocacy expenditures with respect to U.S. elections, violated these persons’ First Amendment rights. A three-judge panel in the lower court rejected the foreign nationals’ claim that their rights had been violated. In a one-sentence order, the Supreme Court unanimously affirmed the lower court’s judgment.

To discuss the case, we have Allison Hayward, the Vice President of Policy at the Center for Competitive Politics.

Perry v. New Hampshire - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 31 Jan 2012 17:00:46 GMT

On January 11, 2012, the Supreme Court announced its decision in Perry v. New Hampshire. The question here was whether, in a criminal case, the Due Process Clause of the Constitution requires a court to evaluate the reliability of an eyewitness identification of the defendant when the circumstances under which the identification occurred were suggestive, regardless of how those circumstances came about. The lower court rejected the defendant’s argument in favor of such a rule, concluding that a court is required to assess the reliability of identification evidence only when law enforcement employs suggestive identification techniques.

In an opinion delivered by Justice Ginsburg, the Supreme Court affirmed the decision of the lower court by a vote of 8-1. Where there is no improper law enforcement activity involved, the Court held, it suffices to test reliability through the normal rights and opportunities afforded for that purpose, such as the presence of counsel at post-indictment lineups and vigorous cross-examination. Justice Thomas filed an opinion concurring in the judgment, and Justice Sotomayor filed a dissenting opinion.

To discuss the case, we have Jessie Liu, who is a partner at Jenner & Block, LLP.

Smith v. Cain - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 30 Jan 2012 19:08:52 GMT

On January 10, 2012, the Supreme Court announced its decision in Smith v. Cain. The question in this case was whether a murder suspect’s Brady rights were violated because his attorney’s office failed to hand over evidence that could have helped in his defense.

In an opinion delivered by Chief Justice Roberts, the Supreme Court reversed the decision of the lower courts, and held by a vote of 8-1 that the petitioner’s Brady claims demand a reversal of his conviction. Justice Thomas filed a dissenting opinion.

To discuss the case, we have Adam Conrad, an associate at King and Spaulding.

Golan v. Holder - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 30 Jan 2012 19:06:46 GMT

On January 18, 2012, the Supreme Court announced its decision in Golan v. Holder. The question in this case is whether Congress has the power to restore copyright protection to certain works that have entered the public domain.

In an opinion delivered by Justice Ginsburg, the Court affirmed by a vote of 6-2 that Congress does have the authority to put certain works that have entered the public domain back under copyright protection. Justice Breyer, joined by Justice Alito, filed a dissenting opinion. Justice Kagan took no part in the consideration or decision of the case.

To discuss the case, we have Christopher Newman, who is an Assistant Professor at the George Mason University School of Law.

Knox v. SEIU - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 26 Jan 2012 21:56:19 GMT

On January 10, 2012, the Supreme Court heard oral argument in Knox v. SEIU. This case presents two questions. The first is whether a state may lawfully require that state employees who are not union members pay a special union assessment intended for ideological political expenditures, without first providing notice and an opportunity to object. The second question is whether a state my lawfully require that state employees who are not union members pay union fees to finance political expenditures for ballot measures.

To discuss the case we have John Eastman, who is a professor at the Chapman University School of Law.

Minneci v. Pollard - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 26 Jan 2012 18:15:39 GMT

On January 10, 2012, the Supreme Court announced its decision in Minneci v. Pollard. The question in this case was whether prison inmates may invoke the Bivens doctrine to bring suit against the employees of a private company hired by the federal government to provide services for the prison.

In an opinion delivered by Justice Breyer, the Court held by a vote of 8-1 that it could not imply a Bivens remedy here because state law authorized alternative damages actions that provide both significant deterrence and compensation. Justice Scalia, joined by Justice Thomas, wrote an opinion concurring in the Court’s judgment. Justice Ginsberg filed a dissenting opinion.

To discuss the case, we have Alexander Volokh, who is an assistant professor at Emory University School of Law.

Sackett v. EPA - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 25 Jan 2012 23:21:24 GMT

On January 9, 2012, the Supreme Court heard oral argument in Sackett v. EPA. This case involves two landowners who graded a lot in a residential subdivision so that they could build a home there. The Environmental Protection Agency then issued to the landowners an administrative compliance order stating that the graded lot was a wetland, and directing the landowners either to remove the fill and restore the lot to its original condition, or risk civil fines in the amount of thousands of dollars for each day of non-compliance. The question before the Court is whether the landowners may seek judicial review of the EPA’s compliance order before it is actually enforced against them and, if the answer to that question is “no,” whether the compliance order deprives the landowners of due process of law.

To discuss the case, we have Elizabeth Papez, who is a Partner at Winston & Strawn, LLP. ??

Gonzalez v. Thaler - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 25 Jan 2012 17:58:06 GMT

On January 10, 2012, the Supreme Court announced its decision in Gonzalez v. Thaler. This case presents two questions arising under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). The first is whether a judge’s failure, when issuing a certificate of appealability under AEDPA, to “indicate” the constitutional issue that a state prisoner has raised deprives a court of subject-matter jurisdiction to hear that prisoner’s habeas appeal. The second question involves how to determine when a judgment became “final” for purposes of calculating the one-year limit that state prisoners have in which to file a federal habeas petition.??

In an opinion delivered by Justice Sotomayor, the Court held by a vote of 8-1 that (1) a judge’s failure to “indicate” the requisite constitutional issue raised by a state prisoner does not deprive a court of appeals of jurisdiction to hear a state prisoner’s habeas appeal, and (2) for a state prisoner who does not seek review in the state’s highest court, judgment becomes final on the date that the time for seeking such review expires. On that basis, the Court affirmed the decision of the lower court that the state prisoner’s federal habeas petition was time-barred. Justice Scalia filed a dissenting opinion.

To discuss the case, we have Ozan Varol, who is a Visiting Assistant Professor at the Chicago-Kent College of Law.

CompuCredit v. Greenwood - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 22 Jan 2012 19:09:03 GMT

On January 10, 2012, the Supreme Court announced its decision in CompuCredit Corp. v. Greenwood. This case involved the Credit Repair Organizations Act, or CROA, which requires credit repair organizations to provide consumers with a disclosure informing them that they have a right to sue credit repair organizations that violate the Act. At issue was whether a credit repair company that is being sued by former customers under CROA can force those customers to arbitrate their claims based on an arbitration provision contained in the customers’ credit card applications.

In an opinion delivered by Justice Scalia, the Court held by a vote of 8-1 that CROA does not address the arbitrability of claims made under thereunder, and the Federal Arbitration Act therefore requires the arbitration agreement in this case to be enforced according to its terms. Justice Sotomayor filed a concurring opinion, joined by Justice Kagan. Justice Ginsburg filed a dissenting opinion.

To discuss the case, we have Christopher Drahozal, a professor at the University of Kansas School of Law.

Coleman v. Maryland Court of Appeals - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 19 Jan 2012 17:01:55 GMT

On January 11, 2012, the Supreme Court heard oral argument in Coleman v. Maryland Court of Appeals. The question before the Court is whether Congress, in passing the “self-care” provision of the Family and Medical Leave Act, validly abrogated the Eleventh Amendment sovereign immunity of states. Under the self-care provision, a state worker may sue if the state interferes with the worker’s statutory right to a certain amount of leave due to a personal, debilitating health condition.

To discuss the case, we have Elizabeth Price Foley, who is a Professor at the Florida International University School of Law.

Pacific Operators Offshore, LLP v. Valladolid - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 18 Jan 2012 16:53:42 GMT

On January 11, 2012, the Supreme Court announced its decision in Pacific Operators Offshore LLP v. Valladolid. The question in this case was whether an employee who spent nearly all his time working on an offshore platform--but was killed in an accident at an onshore facility--suffered his injuries “as the result of” operations conducted on the outer continental shelf, thereby giving his widow a claim for benefits under the Longshore and Harbor Workers’ Compensation Act, by way of the Outer Continental Shelf Lands Act (OCSLA). An administrative law judge and review board denied benefits because the accident occurred onshore, but the U.S. Court of Appeals for the Ninth Circuit reversed, concluding that a benefits claimant need only establish a “substantial nexus” between the injury and extractive operations on the outer continental shelf.

In an opinion delivered by Justice Thomas and joined by Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, the Court affirmed the Ninth Circuit and remanded the case for further proceedings. The OCSLA, the Court held, extends coverage to an employee who can establish a substantial nexus between his injury and his employer’s extractive operations on the outer continental shelf. Justice Scalia filed an opinion concurring in part and concurring in the judgment, in which Justice Alito joined.

To discuss the case, we have Richard Epstein, professor at New York University School of Law and professor emeritus at the University of Chicago Law School.

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 13 Jan 2012 16:42:12 GMT

On January 11, 2012, the Supreme Court announced its decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. This case presents the question whether the “ministerial exception” to federal employment discrimination statutes--an exception that generally shields religious organizations from claims of unlawful discrimination by employees who perform religious functions--applies to a teacher at a religious elementary school who alleged that the termination of her employment violated the Americans with Disabilities Act. The lower appellate court concluded that the teacher did not qualify as a “minister” and that the exception therefore provided no defense against the teacher’s lawsuit.

In an opinion delivered by Chief Justice Roberts the Supreme Court reversed, holding unanimously that the teacher did qualify as a minister and that the “ministerial exception” barred her suit challenging the church’s decision to terminate her employment. Justice Thomas filed a concurring opinion; Justice Alito also filed a concurring opinion, joined by Justice Kagan.

To discuss the case, we have Michael McConnell, a professor at Stanford Law School.

Judulang v. Holder - Post-Decision SCOTUScast

info@fed-soc.org (The Federalist Society) — 12 Jan 2012 00:25:39 GMT

On December 12, 2011 the Supreme Court announced its decision in Judulang v. Holder. This case addresses the policy of the Board of Immigration Appeals regarding when resident aliens convicted of certain offenses may apply to the Attorney General for relief from deportation.

Prior to 1996, denial of entry to aliens who had not been admitted to the United States was described as “exclusion,” while the removal of aliens already admitted to the United States was termed “deportation.” In certain circumstances a provision of immigration law allowed the Attorney General to grant relief to aliens in exclusion proceedings, but this provision did not apply to similarly situated aliens in deportation proceedings. The Board of Immigration Appeals would nevertheless make relief available, but only if the basis for deportation was “substantially equivalent” to an analogous grounds for exclusion. This was known as the “comparable grounds” rule.

Here, petitioner Judulang was subject to deportation and denied the opportunity to seek relief because the Board determined that his underlying offense was not comparable to any of the possible grounds for exclusion. In an opinion delivered by Justice Kagan, the Supreme Court reversed, holding unanimously that the Board’s “comparable grounds” rule was “arbitrary and capricious” under the Administrative Procedure Act.

To discuss the case, we have Jeffrey Pojanowski, who is a professor at the University of Notre Dame Law School.

PPL Montana, LLC v. Montana - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 20 Dec 2011 16:13:15 GMT

On December 7, 2011, the Supreme Court heard oral argument in PPL Montana, LLC v. Montana. This case involves a dispute over title to portions of various riverbeds in the State of Montana, riverbeds now occupied by hydropower projects owned by a utility company. The dispute turns on the extent to which the rivers involved are deemed “navigable,” because States generally take title to lands beneath navigable waters. The question before the Court is whether the test for navigability looks only to the navigability of a river at the time the State joined the Union, or also includes subsequent and present-day use.

To discuss the case we have Donald Kochan, who is a Professor at the Chapman University School of Law.

Mayo Collaborative Services v. Prometheus Laboratories, Inc. - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 16 Dec 2011 21:00:32 GMT

On December 7, 2011, the Supreme Court heard oral argument in Mayo Collaborative Services v. Prometheus Laboratories, Inc. The question in this case is whether a patent can be issued for an observed correlation between blood test results and patient reactions to prescription drugs.

To discuss the case we have Adam Mossoff, who is a professor at George Mason University School of Law.

Williams v. Illinois - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 15 Dec 2011 16:51:17 GMT

On December 6, 2011, the Supreme Court heard oral argument in Williams v. Illinois. The issue in this case is whether a defendant’s Confrontation Clause rights were violated when an expert witness for the prosecution testified at trial about the results of a DNA test in which the expert witness had not been involved and which had been performed by an out-of-state analyst who was not present at the trial.

To discuss the case we have John O’Quinn, who is a partner at Kirkland & Ellis, LLP.

Martel v. Clair - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 14 Dec 2011 16:50:58 GMT

On December 6, 2011, the Supreme Court heard oral argument in Martel v. Clair. The question in this case is whether a state prisoner on death row is entitled to replace his court-appointed attorney with a new court-appointed attorney on the grounds that--according to the prisoner--the first court-appointed attorney failed to pursue potentially important evidence relating to prisoner’s case.

To discuss the case, we have Ronald Eisenberg, who is the Deputy District Attorney for the Law Division at the Philadelphia District Attorney’s Office.

Messerschmidt v. Millender - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 13 Dec 2011 18:08:06 GMT

On December 5, 2011, the Supreme Court heard oral argument in Messerschmidt v. Millender. This case presents two questions. The first is whether police officers are entitled to immunity from suit when their search of a gang member’s residence, for firearms and gang-related items, was based on a warrant that a court later determined to be overly broad and not reasonably supported by probable cause. The second question is whether the standard applicable to immunity determinations in such circumstances--a standard that asks whether the warrant was so lacking in indicia of probable case as to render official belief in its existence entirely unreasonable--is problematic and should be altered.

To discuss the case, we have Joshua Skinner, a member at Fanning, Harper, Martinson, Brandt & Kutchin, P.C.

Federal Aviation Administration v. Cooper - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 9 Dec 2011 21:21:26 GMT

On November 30, 2011, the Supreme Court heard the oral argument in Federal Aviation Administration v. Cooper. This case involves the Privacy Act, which governs the manner in which executive branch agencies collect, use and disseminate records containing information about individuals. The Act authorizes an award of money damages to an individual who establishes that government misuse of such records was intentional or willful and resulted in the individual suffering “actual damages.” The question here is whether mental and emotional injuries qualify as “actual damages” under the Privacy Act.

To discuss the case, we have Richard Peltz-Steele, who is an Associate Professor at the University of Massachusetts School of Law-Dartmouth.

First American Financial Corp. v. Edwards - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 8 Dec 2011 17:27:20 GMT

On November 28, 2011, the Supreme Court heard oral argument in First American Financial Corp. v. Edwards. The question in this case is whether a private purchaser of real estate settlement services has standing to sue banks and title companies that pay kickbacks for closing a mortgage loan, when there is no claim that the kickbacks affected the price or quality of services provided.

To discuss the case, we have Kevin Walsh, who is an Assistant Professor at the University of Richmond School of Law.

United States v. Jones - Post-Argument SCOTUSCast

info@fed-soc.org (The Federalist Society) — 22 Nov 2011 22:11:07 GMT

On November 8, 2011, the Supreme Court heard oral argument in United States v. Jones. This case presents the question whether police officers’ warrantless installation and use of a GPS tracking device on a suspect’s vehicle violates the Fourth Amendment.

To discuss the case, we have Orin Kerr, who is a Professor of Law at George Washington University Law School.

M.B.Z. v. Clinton - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 21 Nov 2011 15:05:43 GMT

On November 7, 2011 the Supreme Court heard oral argument in M.B.Z. v. Clinton. This case presents two questions concerning U.S. citizens born in Jerusalem: (1) whether courts have jurisdiction to enforce a federal statute directing the Secretary of State to, if requested, record the birthplace of such citizens on passports and consular reports as “Israel”; and (2) whether that statute improperly interferes with the President’s constitutional authority to recognize foreign sovereigns.

To discuss the case, we have John Elwood, who is a partner at Vinson & Elkins’s appellate group.

Perry v. New Hampshire - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 10 Nov 2011 18:55:53 GMT

On November 2, 2011, the Supreme Court heard oral argument in Perry v. New Hampshire. The question here is whether, in a criminal case, the Constitution requires a state court to exclude identification evidence whenever the identification occurred under circumstances suggesting the guilt of the defendant, or whether exclusion is mandatory only when the suggestive circumstances were orchestrated by law enforcement officials.

To discuss the case, we have Jessie Liu, who is a partner at Jenner & Block, LLP.

Lafler v. Cooper and Missouri v. Frye - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 8 Nov 2011 00:01:41 GMT

On October 31, 2011, the Supreme Court heard oral arguments for the cases Lafler v. Cooper and Missouri v. Frye. The question in both cases revolves around what happens when a criminal defendant receives deficient legal advice.

In Lafler v. Cooper, the Court considered whether a criminal defendant who rejects a favorable plea offer based on his lawyer’s advice but who later is convicted and receives a harsher sentence can seek to overturn that sentence on the grounds that his attorney was unconstitutionally deficient.

Missouri v. Frye considered whether a criminal defendant whose lawyer failed to communicate a plea offer from the prosecution can make a claim of ineffective assistance of counsel against the lawyer, and what the courts should do for a defendant in this situation who is later convicted and sentenced.

To discuss the cases, we have Kent Scheidegger, who is the Legal Director of the Criminal Justice Legal Foundation.

Minneci v. Pollard - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 4 Nov 2011 16:22:55 GMT

On November 1, 2011, the Supreme Court heard oral argument in Minneci v. Pollard. The question in this case is whether prison inmates may invoke the Bivens doctrine to bring suit against the employees of a private company hired by the federal government to provide services for the prison.

To discuss the case, we have Alexander Volokh, who is an assistant professor at Emory University School of Law.

Florence v. Board of Chosen Freeholders - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 26 Oct 2011 23:11:57 GMT

On October 12, 2011, the Supreme Court heard oral argument inFlorence v. Board of Chosen Freeholders. The question in this case is whether the Forth Amendment permits the government to conduct a suspicionless strip search of any person who is admitted to jail, even when there is no reasonable basis for suspecting that the person has hidden weapons or contraband.

To discuss the case, we have Sarah Hart, who is a Deputy District Attorney in Philadelphia.

Hosanna-Tabor Church v. EEOC - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 24 Oct 2011 20:14:18 GMT

On October 5, 2011, the Supreme Court heard oral argument in Hosanna-Tabor Church v. EEOC. This case presents the question whether the “ministerial exception” to federal employment discrimination statutes--an exception that generally shields religious organizations from claims of unlawful discrimination by employees who perform religious functions--applies to a teacher at a religious elementary school.

To discuss the case, we have Mark Rienzi, who is a professor at the Columbus School of Law at Catholic University.

Reynolds v. United States - Post-Argument SCOTUSCast

info@fed-soc.org (The Federalist Society) — 19 Oct 2011 21:03:00 GMT

On October 3, the Supreme Court heard oral argument in Reynolds v. United States. The question in this case is whether a sex offender who was convicted before passage of the Sex Offender Registration and Notification Act has standing to challenge the Attorney General’s interim rule making the Act applicable to those who committed offenses before its enactment date.

To discuss the case, we have Michael DeBow, who is a professor at the Samford University Cumberland School of Law.

Golan v. Holder - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 18 Oct 2011 22:46:06 GMT

On October 5, 2011, the Supreme Court heard oral argument in Golan v. Holder. The question in this case is whether Congress has the power to restore copyright protection to works that have entered the public domain.

To discuss the case, we have Christopher Newman, who is an Assistant Professor of Law at the George Mason University School of Law.

Howes v. Fields - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 18 Oct 2011 17:00:36 GMT

On October 4, 2011, the Supreme Court heard the oral argument in Howes v. Fields. The question in this case is whether a prisoner, whenever he is isolated from the prison population for the purpose of being questioned, is considered “in custody” and thus required to be given Miranda warnings.

To discuss the case, we have Mark Brnovich, who is the Director of the Arizona Department of Gaming.

Douglas v. Independent Living Center - Post-Argument SCOTUScast

info@fed-soc.org (The Federalist Society) — 11 Oct 2011 18:02:17 GMT

On October 3, 2011, the Supreme Court heard oral argument in Douglas v. Independent Living Center of Southern California. The question in this case is whether Medicaid recipients and providers can sue a state that does not pay the reimbursement rate required by the Medicaid Act.

To discuss the case, we have Roderick Hills, who is the William T. Comfort III Professor of Law at New York University School of Law.