Showing posts from October, 2017

No Voting For You: Ohio, Voter Rolls, and But-for Causation

This will be a short post on the case itself, but will also introduce you to one of the law's more difficult concepts: causation.  But once you get some idea of causation, this case, and many others, might be a bit more understandable.  Challenging, but worth it.  First, the case (the "Plus One" of my 'Big Seven Plus One" Supreme Court cases). November 8 : Husted v. A. Philip Randolph Institute Ohio has a voter list-maintenance process, through which you are sent a notice if you have not voted for two years.  The notice asks you to confirm your eligibility to vote.  If you fail to respond over the next four years, you are taken off the rolls: your voter registration is canceled.   There are two federal statutes involved here.  The National Voter Registration Act (NVRA) prohibits any state from implementing any program that would " result " in the removal of a person from the voter rolls "by reason of a person's failure to vote."  The

Cell Phones and Emails: Big Case, Big Grant, Big Issues

The Supreme Court has entered the digital age.  Starting on November 13, 2017, filings with the Court will be both the traditional paper and electronic , which means if I have a case there, I will have to file both ways (I've already registered for electronic filing) and you will be able to see the filings in any case after that date, so you too can follow along and read briefs and other papers.   But the Court also has to confront the legal issues that come with the digital age, and they now have before them two cases (one set for argument and one just granted yesterday) that are at the intersection of digital technology and the 4th Amendment  (search and seizure).  And these aren't esoteric cases.  They concern two technologies that you use every day: your cell phone and email.  Believe me when I tell you, you will want to   pay atten tion to these.  This post is a bit long, s o grab a beverage.  November 29 : Carpenter v. United States You know that when you mak

Place Your Bets (Maybe)

In this post, I'll talk about an interesting case that won't be argued till December 4.  I know it's out of order, but it  is college football season.🏈 December 4 :  Christie v. NCAA ;  NJ Thoroughbred Horsemen's Assn. v. NCAA  (consolidated) Let's say you are in New Jersey and want to place a bet on a college football game or a horse race.  Sadly for you, a federal statute prohibits states from authorizing or licensing sports betting.  (Las Vegas is, of course, the exception).  And New Jersey could have been an exception too; the statute gave New Jersey a year to authorize and regulate sports betting at its Atlantic City casinos.  New Jersey missed the one-year deadline but passed the law anyway. The Third Circuit invalidated the law but said New Jersey could repeal the ban on betting in whole or in part without violating federal law.  New Jersey repealed the law in part, but allowed gambling on-site, by people at least 21 years of age, with the owner's con

Your Order Is Up: Order Day At The Supreme Court

Since Monday, October 9, was observed as Columbus Day, the Supreme Court did not issue any orders until Tuesday (10/17).  You can find the order list  on the Supreme Court website  (under "Case Documents" then "Orders of the Court"). Unless you have a case pending, or have a particular interest in a case, or are just a Supreme Court nerd (guilty) you probably won't ever look at an order list.  But since you are following this blog, it is likely that you could fall in category two: some case has grabbed your attention.  (And you can search for a particular case by name or docket number under " Docket Search " ) .  I think a quick review of what the Court does with its orders, and how to read an order list if you ever find yourself looking at one, is useful. I know, a little bit "inside baseball", which I don't often do, but you ought to get a flavor of how the highest court in the land functions. Tuesday's Order document covered 13 p

The Supreme Court: How To Keep Up

The Supreme Court can seem like an institution that is both very important and utterly incomprehensible.  They decide cases that shape our law and society, but only a few know how they work, and even fewer can interpret their decisions.  After all, they do call it "The Marble Palace": beautiful but remote. True, it can be overwhelming, even to someone who went to law school.  The cases are by their very nature complicated, both procedurally (how they got there) and substantively (the issues and law they are arguing about).  Few lawyers really engage in appellate practice: many never argue even one appeal.  I'm lucky to be an appellate lawyer, starting with my clerkship and extending on through my practice, including filing paperwork (though not arguing) in three cases in the Supreme Court.  But you don't have to be an appellate (or any kind) of a lawyer to keep up.  Really!   First, r emember that you can click on the links on this blog to get the relevant d

The Big Seven (Plus One) Supreme Court Cases: Part 3

While I am going to do my best to stick to my original plan for introducing the October 2017 Supreme Court term's major cases, there is just so much going on that some additions and diversions (including not always doing two cases at a time) will be inevitable.  One addition to the blog, starting with this post, is "Cases on My Radar", which will be cases I have learned about that are (1) important, (2) interesting, (3) likely to make it to the Supreme Court, or (4) odd (in a good way).  And by the way, if you see a case that you want to be on this blog's radar, let me know in the "Post a Comment" section. October 11 : Jesner v. Arab Bank, PLC The Alien Tort Statute (ATS) grants jurisdiction to federal district courts to hear cases "of all causes where an alien sues for a tort only, in violation of a law of nations or of a treaty of the United Staes".  A good summary from LLI : "According to Law Professor George Fletcher, “the kind of to

The First Monday in October.

"We are not final because we are infallible, but we are infallible only because we are final'" Justice Robert H. Jackson Brown v. Allen, 344 U.S.443 (1953) I first heard this quote not in law school but from the justice I clerked for on the Pennsylvania Supreme Court.  It was Justice Hutchinson's way of keeping his law clerks, and himself, a bit humble.  And when you sit on (or work for) the highest court in a jurisdiction, especially a major one like Pennsylvania--or the United States--it's a good reminder. Whether this quote was in the minds of the U.S. Supreme Court justices as they started their October 2017 term today, I have no way of knowing.  But given how momentous this term will be--and every court observer of whatever political stripe is unanimous on that--I hope some version of Justice Jackson's quote made its way into their thoughts.  Here is some of what happened today. The Court began the day by issuing a 75-page order covering both pen