For the first time in history, a federal appeals court on Thursday gave gays and lesbians a broad new form of constitutional protection against discrimination, and extended that protection to their rights when they get married under state law.   The 2-1 decision by the Second Circuit Court in New York City enhances significantly the importance of the ongoing constitutional dispute over gay rights as the Supreme Court seems likely to confront that question anew, in the specific area of same-sex marriage.

The scope of the ruling Thursday was probably more important than the final outcome — a ruling that the federal Defense of Marriage Act is unconstitutional because it denies legally married same-sex couples the benefits and opportunities under federal law that are fully available to opposite-sex married couples.  In fact, the Circuit Court became the tenth federal court to strike down DOMA’s Section 3, in an unbroken recent string.

While one federal district court judge had ruled that gays and lesbians were entitled constitutionally to greater protection against discrimination, none of the other federal courts that voted to strike down the DOMA provision had done so — until the Second Circuit took that stance Thursday.

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Posted in Analysis, Cases in the Pipeline, Featured, Same-Sex Marriage

The petition of the day is:

Posted in Sidamon-Eristoff v. New Jersey Food Council, Cases in the Pipeline

This afternoon the Court declined to stay the execution (and denied the petition for certiorari) of John Ferguson, a Florida death row inmate convicted in 1978 for his role in eight murders on two separate occasions.  In urging the Court to stay his execution and grant review, Ferguson — whose attorneys describe him as having a “history of serious mental illness” and who had been diagnosed as a “paranoid schizophrenic” — had argued that he had been denied due process in his clemency proceedings because (among other things) he never received a clemency hearing.  Ferguson also argued that his execution, after thirty-four years on death row, would violate the Eighth Amendment’s prohibition on cruel and unusual punishment.  Ferguson and his attorneys contended that executing him now would not serve either of the two goals of punishment — deterrence and retribution — advanced by the Court in cases such as Roper v. Simmons and Atkins v. Virginia.

The stay was originally presented to Justice Thomas, who serves as the Circuit Justice for the Eleventh Circuit; he then referred it to the entire Court.  Justice Breyer — who has in the past expressed some sympathy for Eighth Amendment claims like Ferguson’s — indicated that he would have granted the application for a stay.  The Chief Justice did not participate in Ferguson’s case.

Posted in Everything Else

The Court’s November calendar features probably the most important copyright case since its 2003 decision in Eldred v. Ashcroft.  Kirtsaeng v. John Wiley & Sons, Inc. presents one of the fundamental questions for the globalized media world:  whether a U.S. copyright holder can prevent the importation of “gray-market” products manufactured for overseas markets.  When the Court tried to address this question two Terms ago – in Costco Wholesale Corp. v. Omega, S.A. – the Court was equally divided (with Justice Kagan recused) and left the Ninth Circuit’s decision (allowing the copyright holder to bar importation of those goods) undisturbed.  The Court returns to the question in this case, in which all nine of the Justices apparently will participate.

The facts are almost too good to be true.  A Thai national (Kirtsaeng) came to this country to study at Cornell and U.S.C.  To subsidize his educational expenses, he resold textbooks purchased by his family at bookstores in Thailand.  Although the parties have understandably different views about how to describe his operations, it is plain that he sold several hundred thousand dollars of textbooks imported in this way; because the price at which the books were purchased in Thailand was markedly lower than the price at which similar versions of the books were sold in the United States, his profits from the sales were in the range of $100,000.  When his activities came to the attention of Wiley (a major American textbook publisher), a suit for copyright infringement predictably ensued.  The district court found for Wiley and imposed statutory damages of $600,000.   The Second Circuit affirmed.

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Posted in Kirtsaeng v. John Wiley & Sons, Featured, Merits Cases

Justice Breyer yesterday issued a temporary stay of a decision by the U.S. Court of Appeals for the First Circuit, which had rejected a challenge to subpoenas issued by the British government for materials from an oral history project at Boston College on the Irish Republican Army.   Lyle has the details for this blog, while the Associated Press and Travis Anderson of the Boston Globe also have coverage.

Other coverage of the Court continues to focus on last week’s argument in Fisher v. University of Texas at Austin, the challenge to the use of race-based affirmative action in public universities.  In a post for the Opinionator blog of The New York Times, Linda Greenhouse explains why her “primary reaction was one of embarrassment — for the court and also for Texas.”  In his Verdict column for Justia, Michel Dorf discusses the “critical mass” issue from the oral argument, and in a follow-up post at Dorf on Law discusses the issue of narrow tailoring.  And in a column for the Pope Center for Higher Education Policy, Jennifer Gratz — the petitioner in Gratz v. Bollinger, in which the Court struck down the University of Michigan’s affirmative action program for undergraduate admissions – also weighs in on the Fisher case.  Continue reading »

Posted in Round-up

The petition of the day is:

Posted in Unite Here Local 355 v. Mulhall, Cases in the Pipeline

Supreme Court Justice Stephen G. Breyer on Wednesday temporarily blocked subpoenas issued by the British government for papers collected in an academic project at Boston College about the history of the Irish Republican Army’s violent resistance to British rule in Northern Ireland.  The subpoenas are part of a United Kingdom criminal probe into the death of a former IRA member who allegedly had served as an informer for the British government.  Breyer’s order will remain in effect if the two researchers challenging the subpoenas file a formal appeal of the denial of their plea by the First Circuit Court in July.

The subpoenas had been challenged by Boston College, but it has given up at least part of its objection and has turned over some files.  Attempting to continue the challenge are a former member of the IRA, Anthony McIntyre, who served as the lead researcher on the oral history project (the “Belfast Project”), and a New York journalist and writer, Ed Moloney, who directed the Belfast Project.   That academic inquiry is an attempt to reconstruct the IRA rebellion from the perspective of former “foot soldiers” in that conflict, which ended in 1998 with the so-called “Good Friday Agreement.”

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Posted in Cases in the Pipeline, Featured

Lumen N. Mulligan is Professor of Law and Director of the Shook, Hardy & Bacon Center for Excellence in Advocacy at the University of Kansas School of Law.  Glen Staszewski is the A.J. Thomas Faculty Scholar, Associate Dean for Research, and Professor of Law at Michigan State University College of Law.  The full version of our article, The Supreme Court’s Regulation of Civil Procedure: Lessons From Administrative Law, 59 UCLA L. Rev. 1188 (2012), is available on SSRN.

On November 5, in Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, the Supreme Court will hear oral arguments in a case involving the meaning of Federal Rule of Civil Procedure 23(b)(3).*  The parties and various amici argue, to a large degree, that the Court should adopt their proposed readings of the class-certification requirement in light of contested background empirical facts and policy imperatives.  Amgen is not unique in this regard; indeed, Federal Rules questions often present the Court with broad empirical and policy claims.  Just like most administrative agencies – or regulators, if you will – the Court may set civil procedure policy through case-by-case adjudication, as it did in Bell Atlantic Corp. v. Twombly  and Ashcroft v. Iqbal, or by promulgating generally applicable rules through a notice-and-comment rulemaking procedure, as it did when Rule 11 was amended to include safe-harbor and firm-liability provisions.  Although the Court faces this choice between proceeding by rulemaking or adjudication in Amgen, and in every case that addresses a civil procedure issue, it has yet to devise a coherent framework for making this decision.  Drawing lessons from administrative law, we argue in our Article that, unless it can resolve the case by relying exclusively on the traditional tools of statutory interpretation, the Court should route most issues relating to the Federal Rules of Civil Procedure through the notice-and-comment rulemaking process of the Civil Rules Advisory Committee instead of issuing judgments in adjudications.  Continue reading »

Posted in Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, Academic Round-up, Featured

As Lyle reported for this blog, yesterday the Court denied Ohio’s request that it stay the Sixth Circuit’s decision precluding it from closing early voting opportunities to the general public.  Additional coverage of the Court’s order comes from Greg Stohr of Bloomberg News, Adam Liptak of The New York Times, Robert Barnes of The Washington Post, David G. Savage of the Los Angeles Times, Rick Hasen at the Election Law Blog, Dan Burns of Reuters, Ann Sanner of the Associated Press, Emily Deruy of ABC News, Joe Guillen of the Cleveland Plain Dealer, Dan Froomkin and Trymaine Lee of the Huffington Post, Sam Baker of The Hill, Jeremy Leaming at ACSblog, Ruthann Robson at Constitutional Law Prof Blog, and Emily Schultheis at Politico. Continue reading »

Posted in Round-up

The petition of the day is:

Posted in Delling v. Idaho, Cases in the Pipeline