Yates, A Fishy Case

Next week, the Supreme Court will consider whether a fisherman violated an anti-obstruction provision in Sarbanes-Oxley by throwing illegally caught fish overboard. The case is Yates v. United States, and it’s a weird one.

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Filed under Cert Stage, Interpretation

Should Apprendi Apply to Substantive Reasonableness Review?

A couple weeks ago, the Supreme Court narrowly denied cert in Jones v. United States, which raised an important Sixth Amendment sentencing question—namely, whether it is constitutional for judge-found facts to render a defendant’s sentence substantively reasonable. (Here’s some coverage from Doug Berman on Sentencing Law and Policy and more from Will Baude at the Volokh Conspiracy.) Dissenting from the Court’s denial of cert, Justice Scalia suggested that substantive reasonableness review raises fatal constitutional problems under cases like Apprendi v. New Jersey. But I’m not so sure.

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Filed under Cert Stage, Sentencing

Doubts About Jurisdictional Doubts in Dart  

Could there be outside-the-box solutions to the jurisdictional puzzle in Dart Cherokee Basin Operating Company, LLC v. Owens? I recently chatted about this topic with Akhil Amar, one of the five people still interested in it. If you are people three to five, then this is the post for you.

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Filed under Jurisdiction

Supreme Retirements and the Habit of Politics

There’s been a lot of debate over the past year or so about whether Justices Ginsburg and Breyer should or will retire in order to maximize the chances that President Obama will be able to name their successors. In an effort to put out this fire, Justice Ginsburg recently fed the flame by asserting that “If I resign anytime this year,” the President “could not successfully appoint anyone I would like to see in the Court.” Jeffrey Toobin asked the President about this, and he responded with a measure of skepticism, while conceding: “Life tenure means she gets to decide, not anybody else, when she chooses to go.”  Underlying these events is an important question: should supposedly neutral Justices time their retirement decisions based on what seems like political strategy?

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Filed under Judicial Decision-making

Should Lower Courts Facilitate Supreme Court Review?

Last week’s oral argument in Dart Cherokee Basin Operating Co. v. Owens featured a lot of discussion about whether a circuit court had erred by insulating a legal ruling from further review. This possibility raises an interesting question: Do the courts of appeals generally have a responsibility to facilitate Supreme Court review?

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Filed under Judicial Decision-making, Procedure

Ebola, Epidemics, and Federalism

The Ebola epidemic has made emergency public health measures a subject of global importance. Within the US, attention has focused on federal efforts to monitor potentially contagious persons entering the country, and on both state and federal efforts to curb the spread of infection. (Paul Rosenzweig’s post over at Lawfare is a good example.) Clearly, the end of this humanitarian crisis will turn on medicine and public policy. But there is also a set of constitutional doctrines relevant here. In recent years, public health problems have played a significant role in thought experiments regarding the scope of state and federal power. Some of these scenarios don’t seem quite so hypothetical anymore.

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Filed under Federalism, Security

In the Teeth of Humor

This morning, the Court heard argument in North Carolina Board of Dental Examiners v. FTC, an important and fascinating state-action antitrust case featuring Hashim Mooppan’s impressive debut at One First Street. But perhaps the most remarkable feature of the case is that it has spawned so much tooth-based wordplay. Here’s a sample, for your amusement:

  • USA Today: “For Supreme Court, dental case is like pulling teeth”
  • Reuters: “Supreme Court justices chew on teeth-whitening dispute,” which opens: “The U.S. Supreme Court may have bitten off more than it can chew in a North Carolina case….”
  • WSJ: “Smile and Say Price-Fixing”
  • Boston Herald: “High Court has chance to put teeth into free market”
  • National Law Journal: “High Court Drills Dental Examiners Board”

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Filed under Supreme Media