Law

We expect the Court to issue opinions tomorrow morning at 10 a.m.  We will be live blogging beginning at around 9 a.m.  (All times are Eastern.) We have put together a list of some of the commonly asked questions about opinion announcements that we have gotten during recent live blogs, along with our responses, but please let us know during the live blog if you have a question that you don’t see answered here. Question: What opinions will the Court issue? Answer: Unlike some other courts, the Court doesn’t announce in advance which cases will be decided on a particular day.  The only time we have a good sense is the very last day, when the Court issues its final rulings. Question:  How many opinions will the Court issue? Answer:  The Court also does not announce in advance how many opinions it expects to release on any particular day. Question: What’s the last day the Court will issue opinions? Answer: We don’t yet know when the last day will be.  Based on past practice, the most likely days are June 26 and 27.  Although we can’t say for sure, we may know more about next week’s schedule as early as today. Question: What cases are still undecided? Answer:  There are still fourteen cases awaiting decision; you can find a full list of the cases in this post by Kedar Bhatia. Question: If a case is not decided by the end of the Term, will it be re-argued? Answer: Ordinarily, yes, the Court will order re-argument during the next Term.  But it’s relatively rare for the Court to order re-argument, particularly if it hasn’t asked the lawyers in the case to address a new question. Question: How likely is it that the affirmative action, voting rights, and same-sex marriage cases will all be decided the same day? Answer: The Court releases opinions as they are ready.  (This includes the majority opinion and any concurring and dissenting opinions as well.)  It is unlikely that all four of these opinions will be ready at once. Conventional wisdom would hold that the cases which were argued earlier in the Term are more likely to be decided before the cases that were argued later in the Term. A list of the cases organized by sitting is here.  (Fisher v. University of Texas is currently the oldest undecided case.) Question: Who announces “per curiam” opinions (that is, opinions without a named author)? Answer: Per curiam opinions are typically issued with the order list and not otherwise announced. Question: How does the Court decide the order in which opinions will be announced on a given day? Answer: The Justices announce their opinions in order of reverse seniority, with the Chief Justice going last. So if Justice Kagan has an opinion to announce, she goes first, followed by Justice Sotomayor, Alito, Breyer, Ginsburg, etc.  The Justice who is announcing a decision will read a summary of the opinion out loud in the courtroom.  Some of the Justices do make these “bench statements” available to the public through the Court’s Public Information Office (PIO); you can also listen to them later on at the Oyez Project’s website.  A Justice who dissents also has the option to read a summary of the dissent from the bench as well, but this is usually done only when the dissenting Justice feels especially strongly about the case; the decision to read a dissent from the bench is generally regarded as a “statement” by the dissenting Justice. Question:  How do you get the results in the cases?  Do you have someone in the courtroom? Answer:  No electronic devices are allowed in the courtroom, and therefore no blogging can be done from the courtroom.  Our reporter, Lyle Denniston, is in the press room.  At the same time that the Court begins to announce an opinion in the courtroom, the Court’s Public Information Office (PIO) hands out paper copies of the opinion to the reporters in the press room.  Lyle quickly reviews the opinion and then relays the outcome to the blog staff, who type the result into the live blog.  Because it can often take a few minutes

The Center for Internet and Society (CIS) at Stanford Law School launched a new online privacy initiative today called the “Cookie Clearinghouse,” which will empower Internet users to make informed choices about online privacy. The Cookie Clearinghouse is being spearheaded by Aleecia M. McDonald, the Director of Privacy at CIS. Read more » about Center for Internet and Society Launches “Cookie Clearinghouse” to Enable User Choice for Online TrackingRelated Topics: cookie clearinghouse

Coverage of and commentary on Monday’s opinions continues apace. The Court’s seven-to-two decision in Arizona v. The Inter Tribal Council of Arizona, Inc., in which the Court held that an Arizona law requiring proof of citizenship for would-be voters is preempted by federal law, continues to provoke interest.  At his Election Law Blog, Rick Hasen discusses the possible reasons why Justices Ginsburg, Breyer, Sotomayor, and Kagan signed on to Justice Scalia’s majority opinion, even though the decision seems to “provide a roadmap for states to implement voter [ID] laws over federal objection.”  Also at the Election Law Blog, Josh Douglas focuses on a passage in which the Court concludes that “Arizona is correct that the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them”; Douglas contends that “Scalia’s push for a renewed focus on state qualification rules might actually be a move in the right direction for voters, at least where it comes to the constitutional right to vote.”  At More Soft Money Hard Law, Bob Bauer notes that “[o]verall, the Court [in Arizona] seems to have shown scant interest in motives and effects [behind state voting laws] and have given the states leeway . . . to stay on their current course.”  Other coverage comes from Chantal Valery of Agence France-Presse (via Global Post); commentary comes from David H. Gans of the Constitutional Accountability Center, who argues that the decision is not a “Pyyrhic victory” but instead a “sweeping reaffirmation that the Constitution gives Congress very broad powers to protect the right to vote in federal elections.” Monday’s other opinions also continued to draw attention yesterday.  At IP Watchdog, Michael Carrier argues that Federal Trade Commission v. Actavis, in which the Court held that the government and private parties can bring lawsuits to challenge payments made by brand-name drug makers to keep would-be competitors who make generic substitutes temporarily out of their markets, is crucial for two related reasons: “First, in one fell swoop, the Supreme Court has dispelled any doubt that pay-for-delay settlements present anticompetitive concern”; and second, “the Court highlighted significant concerns with these agreements pointing to ‘genuine adverse effects on competition.’” Michael Bobelian of Forbes also has coverage.  And at the American Bar Association’s Criminal Justice Section, Rory Little covers Alleyne v. United States, in which the Court held that any fact which increases a mandatory minimum sentence is an “element” of the crime that must be submitted to the jury, and Salinas v. Texas, in which the Court held that prosecutors did not violate a suspect’s constitutional rights by using his pre-arrest silence as evidence against him at trial because he had never expressly invoked his privilege against self-incrimination. Briefly: Nina Totenberg of NPR examines the evolving role of the Foreign Intelligence Surveillance Court in the wake of a 1978 Supreme Court decision ruling that warrantless wiretaps of people in the United States were unconstitutional. At Campaigns and Elections Jeremy P. Jacobs previews McCutcheon v. FEC, in which the Court will consider the constitutionality of federal limits on the total amount that a donor can give to all political recipients during a two-year election cycle. Jeremy Leaming of ACSblog interviews San Francisco City Attorney Dennis Herrera about his office’s role in challenging Proposition 8, California’s ban on same-sex marriage. In the wake of the Court’s dismissal of Boyer v. Louisiana – in which the Court granted review to decide whether the state’s failure to fund indigent counsel in a capital case for five years should count against it for speedy trial purposes – G. Ben Cohen previews another capital case out of Louisiana – Garcia v. Louisiana, which the Justices will consider at their Conference tomorrow – at ACSblog, At idibon, Tyler Schnoebelen examines

(Eugene Volokh) The Lachlan Markay (Washington Free Beacon) reports on the Tester/Murphy amendment, which would provide: Section 1. We the people who ordain and establish this Constitution intend the rights protected by this constitution to be the rights of natural persons. Section 2. The words people, person, or citizen as used in this Constitution do not include corporations, limited liability companies or other corporate entities established by the laws of any State, the United States, or any foreign state, and such corporate entities are subject to such regulation as the people, through their elected State and Federal representatives, deem reasonable and are otherwise consistent with the powers of Congress and the States under this Constitution. Section 3. Nothing contained herein shall be construed to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, freedom of association and all such other rights of the people, which rights are unalienable. The proposed amendment would authorize Congress, states, and local governments to, for instance, (1) restrict what most newspapers publish, (2) restrict what most advocacy groups, such as the ACLU, the Sierra Club, and the NRA, say, (3) restrict what is said and done by most churches, and (4) seize the property of corporations without just compensation. (It might also allow restrictions on the speech of unions, depending on whether they are seen as “corporate entities.”) Nearly all major newspapers and magazines are owned by corporations; the same is true of book publishers, movie studios, record labels, and broadcasters. Indeed, if you want such entities to be able to raise money for their operations through the stock market, you have to have them be organized as corporations. Likewise, most nonprofit organizations are organized as corporations — that, too, makes sense, since it makes sense to have the ACLU run as a corporate entity rather than as a sole proprietorship owned by one person, or a partnership owned by a few people. Churches are likewise often organized as corporations, sometimes with a special sort of corporate status. Under the proposed amendment, all these groups — as well as ordinary businesses — would lose all their constitutional rights. Instead of “strict scrutiny” for content-based regulations of the press or of nonprofit advocacy groups, Congress and state and local governments would be free to impose any restrictions they “deem reasonable.” And section 3 will do nothing to reinstate any such rights, because it protects only “the people’s” rights, and “the people” is defined in section 2 to expressly exclude corporations. Nor would section 3 protect corporate-run newspapers or advocacy groups on the theory that restriction those organizations’ speech would deny the constitutional rights of individual reporters or organization leaders. The government would still be freed to restrict those reporters and leaders from speaking using corporate resources, which is to say speaking in the pages of the newspaper or using the offices or assets of the organization. (After all, when corporations speak about elections — the thing that the Senators are, I assume, trying to stop — it is also individual managers who speak using the corporate form; but the argument for restricting such speech is that the managers should speak only using their own resources, not corporate funds.) So goodbye, First Amendment protection for the New York Times, CNN, the ACLU, the NRA, and the Catholic Church. Goodbye, any right to just compensation when a corporation’s property is taken — whether the corporation is a large business or a small mom-and-pop company. Goodbye, any rights to due process when a corporation’s property is seized. Goodbye, any protection for corporations (again, even small family-run businesses) from unreasonable searches and seizures, or excessive fines. That’s what Senator

Aloni on “Relationship Recognition Madness” Erez Aloni (Whittier) has published an op-ed,  “Relationship Recognition Madness.” at Huff Po.  Here is an excerpt. He takes on the new FAFSA rules that take account the income of co-habitating unmarried parents in determining a student’s eligibility for financial aid. Under the purview of the Department of Education, the new Free Application for Federal Student Aid (FAFSA) will now include in its calculation of students’ eligibility for financial aid the income of cohabiting, unmarried parents — including same-sex spouses that are generally unrecognized by the federal government due to the Defense of Marriage Act. LGBTQ organizations have long fought for this legal change; indeed, our community has accepted it as a political victory….. This new policy, advocated by LGBTQ organizations, ultimately penalizes unmarried (and same-sex) parents just as do laws that do not recognize these couples (and to clarify, the rule targets only parents who live together to the exclusion of others). When combined, these two practices — the nonrecognition of unmarried couples in the allocation of rights and benefits and the recognition of them in the calculation of student financial aid — result in a functional financial penalty to nonmarried couples. The net result is economic maldistribution. No law or policy can be judged “fair” or “unfair” without considering this fact. Read the full piece here. -Bridget Crawford Feminist Law Professors

Paul Horwitz (University of Alabama School of Law) has posted Freedom of the Church Without Romance (Journal of Contemporary Legal issues, Forthcoming) on SSRN. Here is the abstract: This Article is part of a symposium issue titled "Freedom of the Church in the Modern Era." Freedom of the church, roughly, connotes the independent nature or sovereignty of the church. The most dramatic moment in its development was the eleventh century Investiture Controversy, with its confrontation between Pope Gregory VII and Emperor Henry IV at Canossa, but it has a long prior and subsequent history. Recently, with the renewed scholarly interest in the institutional rights of churches and religious organizations and the Supreme Court's decision affirming the "ministerial exception" doctrine in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the idea of "freedom of the church" has taken on new champions -- and critics. This Article, from an author who has written supportively about freedom of the church and/or religious institutionalism in prior work, takes a deliberately unromantic look at freedom of the church. It evaluates it through two useful disciplinary lenses: history, and the economics of religion. Both historical and economic analysis of the concept of "freedom of the church" suggest the following conclusions: (1) The concept should be treated carefully and with a full awareness of its mixed history, without undue romanticism on the part of its champions, or a confident conclusion on the part of its critics that it is no longer necessary. (2) Whatever the concept of "freedom of the church" means today, the present version is decidedly diminished and chastened, a shadow of the medieval version. Supporters of freedom of the church should welcome that fact. Freedom of the church persists, and may have continuing value, precisely because it has become so domesticated. (3) There are solid historical and economic grounds for some form of freedom of the church or religious institutional autonomy. In particular, religion's status as a credence good, whose value and reliability is certified by religious agents such as ministers, strongly suggests that state interference with religious employment relations can be dangerous to a church's well-being and long-term survival. (4) The history and economics of religion also teach us something about the optimal conditions for freedom of the church -- the conditions under which it is likely to do the most good and the least harm. In particular, they suggest that champions of freedom of the church ought to welcome religious pluralism and a strong non-establishment regime. The Article closes with some speculation about why there has been a recent revival of interest in freedom of the church, including the possibility that its resurgence, even if it is fully justified, also involves an element of rent-seeking by religious institutions. There are two broader underlying suggestions as well. First, there are good reasons to support some version of freedom of the church, but it deserves a more critical and nuanced examination by friends and adversaries alike. Second, legal scholars writing on church-state issues have paid far too little attention to the literature on the economics of religion. Highly recommended.

George Bush was rightfully denounced for his Administration’s false statements to both the public and the United Nations on weapons of mass destruction in Iraq — the rationale for our invasion of that country. There was little apparent concern from Bush or his aides over the veracity or proof of their assertions as opposed to the desired outcome. The same mentality is in open display with President Obama this month as he and his aides continue to increase the claims of “successes” from the warrantless surveillance programs as public opposition grows. In this case, the increasing claims are being made in a war on privacy, including an effort to redefine privacy in a new surveillance-friendly image. We are now up to over 50 “potential plots” and Obama is sounding distinctly Bush-like in statements today about how these programs “saved lives.” The public, which learned this month that it was openly lied to about the programs in earlier hearings, is expected to accept these assurances on faith alone. Speaking Wednesday morning during a press conference in Berlin with German Chancellor Angela Merkel, Obama repeated the new “over 50″ claim and said “this is a circumscribed, narrow system directed at us being able to protect our people.” Once again, he considers not violating the fourth amendment directly by simply listening to calls is an admirable compromise on his part. He again cited the FISA court in a ludicrous suggestion that the court offers any meaningful review. He then added that putting the entire country under these surveillance programs was beneficial. He insisted that by effectively issuing a national security letter for the entire country, he stopped dozens of attacks and “as a consequence, we’ve saved lives.” Once again, there is very little push back on such claims by the media and even less from Congress. Before we get into the latest round of claims to justify these programs, it is worth noting again that the success of any program does not excuse its unconstitutionality. While, as previously discussed, the Supreme Court (unwisely) stripped pen register evidence of protections under the fourth amendment, it has never signed off on this type of massive data collection and monitoring of all citizens. Now to the current count. You will recall that allies of the White House originally claimed one thwarted plot. They then increased that number to two and then to four. As opposition mounted, they started to claim “dozens” of “potential” plots. Now we are up to over 50 according to NSA chief Gen. Keith Alexander. This is getting to look like those old Joe Isuzu commercials where a spokesman openly inflates claims to sell a car. The problem is that we were just lied to. Not only did the Administration lie about the programs but these very senators eliciting the new claims were the same who remained silent in the face of testimony that they knew was false. James R. Clapper Jr., the director of national intelligence, to the Senate in March. Clapper said unequivocally that the N.S.A. was not gathering data on millions of Americans. That is obviously false and Senators hearing the testimony knew that the public was being lied to. Senator Wyden asked Clapper: “Does the N.S.A. collect any type of data at all on millions or hundreds of millions of Americans?” Clapper responded: “No, sir. Not wittingly.” However, it was done “wittingly” when you demand all of the calls for all citizens, right? Clapper will argue that he simply defines collecting data differently from the vast majority of humanity. However, courts regularly reject such subjective views of the truth. The point of the answer was to assure the public that they have nothing to worry about — the same message being given by members now that the truth has come out. Clapper’s testimony was for the public to hear a

Lauren Salins and Shepard Simpson have posted Efforts to Fix a Broken System: Brown v. Plata and the Prison Overcrowding Epidemic (Loyola University Chicago Law Journal, Vol. 44, No. 4, 2013) on SSRN. Here is the abstract: Excessive incarceration is...

(David Post) My fears that we were facing a summer without top-class futbol have proven unfounded.  The Confederations Cup tournament, now underway in Brazil, has been a nice reminder that in just over a year or so, there will come a moment when 30 or 40 percent of the world’s population will be simultaneously engaged in the same activity – watching the World Cup final.  (And you heard it here first:  Spain v. Argentina.) If there is a wisdom of crowds, surely this is telling us something about the species, no? The Confederations Cup is a weird and interesting tournament.  It’s held every 4 years, one year prior to the World Cup, in the host country – it serves as a kind of tuneup for the Big Show, both in terms of seeing whether the logistics (tickets, transport, field conditions, etc.) are all working well, and also to give the national team a first-class workout. [This is a strange feature of the World Cup qualifying process.  The host team -- Brazil, in this case - gets the home field advantage in the tournament, of course, which, in soccer, appears to be an even-more-prevalent phenomenon than in other major sports.  But they suffer a serious disadvantage as well:  Because they don't have to qualify for the tournament (they're given an automatic spot as the host), they don't have to go through a hard-fought qualifying campaign, a grueling series of high-pressure games that all of the rest of the world's countries are now going through.  It can make it very, very difficult to forge a team -- or even to figure out who should be on the team -- when it hasn't played in any tough matches with the pressure turned up.  So the Confederations Cup is designed to alleviate that problem a bit.] It’s the host country plus the winners of the individual continent-wide national team tournaments:  first and second place from Europe (Spain and Italy), plus the winners of N. America/Caribbean (Mexico), S. America (Uruguay), Africa (Nigeria), Asia (Japan), and Oceania (Tahiti — Tahiti!!). It sets up, this year, some pretty tasty matchups.  Sometimes, the teams that show up for tournaments like this are sub-par –a coach unwilling to risk injury to players in a tournament that doesn’t, after all, really “mean” anything (unlike the WC qualifiers, which matter a lot).  But for various reasons, that didn’t happen this year – Brazil, Italy, Mexico, Uruguay, and Japan defiinitely have their first teams on hand, and from the action thus far (the first-round games are still available, I think, at ESPN3.com) it looks like they’re all playing as though they mean it.  The Brazilians have a lot to prove, too – they’re in a bit of a transition at the moment from old to young, and the pressure on them to perform well before the home crowds is beyond imagining. And then there’s Spain.  What Spain has been doing to world football over the past six years or so is truly breathtaking.  They have not only won the last 3 major international tournaments — the Euro Championship in 2008, the 2010 World Cup, and the Euros again in 2012 — they have done so by obliterating their opponents, outscoring them 32-6 (!!) over the three tournaments, a ridiculous goal differential that has never been equaled at this level (not to mention humiliating Italy in the Euro 2012 final 4-0, the largest margin of victory in a major international final for over 75 years).  They’ve brought a top-flight squad to Brazil this year – Spain has the luxury of being able to leave at home world-class talent (David Villa, Xabi Alonso) and still have world-class talent on the bench (Javi Martinez, Santi Cazorla, Fernando Torres) while fielding a fabulous team that goes out and demolishes a decent Uruguay squad.  If you want to see what all the fuss over Spain and Spanish soccer is about, watch the replay of the Spain-Uruguay match – the words “utter domination” d

Posted by D. Daniel Sokol Peter D. Camesasca, Johan Ysewyn (Clifford Chance), Thomas Weck and Brian Bowman ask Cartel Appeals to the Court of Justice: The Song of the Sirens? ABSTRACT: This article reviews the cartel precedent of the General...