Showing posts from January, 2018

Circuit Assignments/A Death Penalty Case

                                        Map of the Federal Appellate Courts Did you know that the 13 federal circuit courts (11 numbered circuits plus the District of Columbia and the Federal Circuit) each get their own Justice?  They do.  And they have for a long time.  Effective June 27, 2017 (basically at the end of the October 2017 term) the current circuit assignments were issued.  Other than being required by statute ( 28 U.S.C. §42 ), why is this done? As our friends at SCOTUSblog  succinctly put it: "Circuit Justices are responsible for ruling on certain motions arising from their assigned circuits, such as motions for extensions of time.  In the case motions for a stay of execution or other motions relating to death penalty matters, the Circuit Justice ordinarily refers the motion to the Court as a whole, but takes the lead in recommending a disposition of the motion." Justices are quite often assigned a circuit that has some relevance to their background

Update on DACA/How To Tell Who Is Who In An Appeal

As promised, here is an update on the DACA case. (To see the full docket in the Supreme Court, click here .  To see my recent post on the case and DOJ's attempt to obtain certiorari before judgment, click here ). Today (January 23) the Supreme Court issued the following order: ORDER IN PENDING CASE 17-1003 DEPT. OF HOMELAND SEC., ET AL. V. REGENTS OF UNIV. OF CA, ET AL. The motion of petitioners to expedite consideration of the petition for a writ of certiorari before judgment is granted in part. As respondents have agreed, they will file their briefs in  opposition by February 2, 2018.  The "granted in part" refers to the February 2, 2018, date for the respondents (the Regents of the University of California and the named parties with them) to file their brief(s) in opposition to DOJ's petition.  DOJ originally wanted the Court to order respondents to file on January 22.  Obviously, they didn't get the time frame they were seeking.  Failing that, the

Three Opinions And A Grant, Or Peaches,Tasty, And A Frog

As predicted. the Supreme Court handed down opinions today, three of them, one featuring a party thrown by "Peaches" (or maybe "Tasty").  There was also a grant of certiorari that involves a frog. And you thought the law was boring. First, the opinions  [link to Supreme Court website]: National Assn. of Mfrs. v. Department of Defense (16-299): the Court held, by a 9-0 vote, that challenges to the Waters of the United States rule must be filed in federal district court, not federal courts of appeal as is allowed for some challenges under the Clean Water Act.  Takeaway: the opinion by Justice Sotomayor solves this jurisdictional issue by statutory interpretation against the very complex background of how "waters of the United States" is defined and administered.  Major case if you do Clean Water Act work, as I did. Artis v. District of Columbia (16-460): another procedural case, a 5-4 decision, with a majority opinion by Justice Ginsburg, reading

One Lonely Opinion (But Stay Tuned For Monday)

It's late January, and not since the 1860's has the Supreme Court taken so long to issue opinions: only one opinion in an orally argued case.  And even if you take into account non-argued  per curiam opinions (unsigned opinions "by the court"), there have only been a total of five .  And to top it all off, the one opinion that was in an orally argued case, Hamer v. Neighborhood Housing Services of Chicago , was a twelve-page unanimous opinion on the difference between "jurisdictional" deadlines and "claim processing" rules, a discussion only appellate law nerds (ahem) could love.  Why is this? Well, as the least leaked branch of government, we really don't know, but here is one idea.  While the Court has a lighter than average docket by the number of cases, they have more than made up for it with the nature of the cases before them.  Consider these cases, the first two (at least) are in the "landmark case" category, and all o

Can DOJ Skip The Ninth Circuit? Well, They Can Try

You might have heard that the Trump Justice Department is seeking direct review of the district court's decision to enjoin the shutdown of the DACA program and ordering the government to continue to receive renewal applications.  You can read about it here  (a sh ort Politico story) but this post is not about DACA.  It's about what the Justice Department is attempting to do: bypass the Ninth Circuit and have the Supreme Court take the appeal directly.  Can they do that? Yes, they can, but it is (in my opinion) a long shot.  This post will walk you through the rule and the statute.  You'll not only learn to read a citation to a federal law but see how to pick out the operative terms and form your own opinion.  DOJ will be relying on Rule 11 of the Supreme Court of the United States which provides:  Rule 11. Certiorari to a United States Court of Appeals before Judgment A petition for a writ of certiorari to review a case pending in a United States court of appea

On A Lighter Note: Rule Haiku

A lot of my recent posts have been about some pretty heavy duty stuff.  That's to be expected, of course: the docket of the Supreme Court is not known as a source of humor.  But not all things law related have to be deadly serious. I've got an example for you which is both a source of humor, or at least light-heartedness, and even instructional.  Legal education can be fun, too. It is a feed I recently found on Twitter: Rule Haiku.  As the site says, "The Federal rules. Turned into haiku. For no real reason."  What Rule Haiku does is just that: take the Federal Rules (Evidence, Civil Procedure, Criminal Procedure, Appellate Procedure) and convert them into a standard haiku format, three lines of  5-7-5 syllables in each line.  It's very inventive, is in keeping with the traditional haiku format, and is a fairly good summary of the rule in 17 syllables.  Here's an example, from the Federal Rules of Evidence: FRE 702. Qualified expert  Usefulness, fact

Hold On To Your Wallets

Today (January 12) was order day at the Supreme Court, and the Court granted 12 cases, which, barring cases that get an expedited briefing (say, Travel Ban 3.0), fairly well rounds out the Court's docket for this term. (You can read the entire order list here .) You can read Amy Howe's take on the full argument list  here . (She used to be SCOTUSblog and still writes for them along with her own blog, which is well worth your time if you want to follow the Supreme Court in detail). As I mentioned in my last post, 17-494, South Dakota v. Wayfair  was a case to follow and sure enough, the cert petition was granted today after only going through two conferences, and that most likely was only because the reply brief in support of cert was filed by South Dakota the same day it went to the first conference. You can see the whole list of docket entries (but not yet including today's order)  here , which will give you some idea of how much interest this case has already genera

The Return of Officer Friendly and a Fourth Amendment Double Header

On January 9th the Supreme Court heard arguments in two Fourth Amendment cases: Byrd v. United States  and Collins v. Virginia.   That must mean it's time to have another visit from our pal Officer Friendly, our guide to all things Fourth Amendment.  These might not seem like "big" cases at first blush, but I think you will see that they could have a major effect on search and seizure law.  As a bonus, I'll introduce you to a new legal term.  Plus a cert petition to follow.  Byrd v. United States You are driving a rental car near Harrisburg, PA. You get stopped by Officer Friendly for violating a Pennsylvania driving law.  But there are some problems for you. First, you are not listed on the car rental agreement as a driver.  And you have a criminal record including drugs, weapons, and assault.  Officer Friendly and another officer ask for your permission to search the car. (They say you gave it; you say they told you it doesn't matter if you give i

Cakes and BBQ: Masterpiece Cake Shop, Ollie McClung and Piggy Park Enterprises

This post has taken an inordinately long time to write.  Thank you to all my loyal followers for your patience! Aside from the holidays and being sick (which coincided) there is also trying to figure out how to write something about a case that has received so much media attention. And as I stated in a previous post, I claim an exemption from my usual "not taking sides" approach; I just feel too strongly about this case. So here goes.  (If you need a refresher on what this case is about, see my post of 11/9/2017 on Masterpiece Cake Shop). By now you most likely know that the argument split along what is usually called ideological lines, with the conservatives (Roberts, Alito, Gorsuch, and Thomas) being on the side of the baker and the liberal wing (Ginsburg, Breyer, Kagan, and Sotomayor) being on the side of the Colorado Civil Rights Commission, with Justice Kennedy playing the role of the swing vote. You may also have heard that some commentators believe that Kennedy wil