17 June 2013

Supreme Court end of term preview (June 17 update)

DECIDED (6/17):

Salinas v. Texas: The Fifth Amendment’s Self-Incrimination Clause does not protect a defendant’s refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights.

Maracich v. Spears: The "litigation exception" in the Driver’s Privacy Protection Act does apply to lawyers that obtained, disclosed, or used personal information solely to find clients to represent in a class action lawsuit.

Alleyne v. United States: The decision in Harris v. United States (in which the Court held that the Constitution does not require facts which increase a mandatory minimum sentence to be determined by a jury) is overruled.

Federal Trade Commission v. Actavis: Reverse payment settlement agreements are not presumptively unlawful,  neither are the drug companies immune from antitrust attack. Such agreements should proceed by applying the “rule of reason" (The "test of legality is whether the restraint imposed is such as merely regulates, and perhaps thereby promotes, competition, or whether it is such as may suppress or even destroy competition.").

Arizona v. The Inter Tribal Council of Arizona, Inc.: Arizona’s evidence-of-citizenship requirement, as applied to Federal Form applicants, is preempted by the NVRA’s mandate that States “accept and use” the Federal Form. As a result, Arizona's evidence-of-citizenship requirement is invalid. Nonetheless, the Court laid out an alternate means by which Arizona (or any other state) could determine voting qualifications. The NVRA permits states to request the federal Election Assistance Commission to include state specific instructions on the Federal Form (in fact, some states have already done this).

REMAINING:

Fisher v. University of Texas at Austin: Does the University's use of race in admissions decisions as a means of affirmative action violate the Equal Protection Clause of the Fourteenth Amendment?

Shelby County v. Holder: Did Congress’ decision to reauthorize Section 5 of the VRA under the pre-existing coverage formula of Section 4(b) of the VRA exceed its authority under the Fourteenth and Fifteenth Amendments and thus violate the Tenth Amendment and Article IV of the United States Constitution?

Hollingsworth v. Perry: (1) Does Hollingsworth have standing to defend Prop 8? and (2) Does the Equal Protection Clause of the Fourteenth Amendment prohibit California from defining marriage as the union of a man and a woman (it is important to note that the first question was threshold question, meaning it must be decided in the affirmative for the Supreme Court to consider the constitutionality question)?

United States v. Windsor: (1) Did the federal government's decision not to defend DOMA take away jurisdiction from the Supreme Court to hear the case? and (2) Does the Bipartisan Legal Advisory Group have standing to defend DOMA? and 93) Is DOMA unconstitutional by violating the Fifth Amendment's guarantee of equal protection?

Agency for Int'l Development v. Alliance for Open Society Int'l, Inc.: Does the U.S. Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act, which contains a provision which requires that recipients of its funding make an explicit policy opposing prostitution and sex trafficking, violate the First Amendment?

Koontz v. St. Johns River Water Management District: (1) Is it a "taking" to deny a development permit for failing to satisfy government-imposed conditions? and (2) Does the taking violate the essential nexus (a sufficient link between the demand on the property owner and the public policy at issue) and rough proportionality (any attempt by a local government to require dedication of a part of private property to a public use has to be proportional to the public impact of the project) tests set out in the Court's prior takings decisions?

Descamps v. United States: Should a state conviction for burglary where the statute is missing an element of the generic crime, may be subject to the "modified categorical approach?"

Adoptive Couple v. Baby Girl: Can a non-custodial parent could invoke the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-63, to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law? and (2) Does the ICWA define “parent” in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent?

American Express Co. v. Italian Colors Restaurant: Does the Federal Arbitration Act (FAA) permit courts, invoking the “federal substantive law of arbitrability,” to invalidate arbitration agreements on the ground that they do not permit class arbitration of a federal-law claim?

Mutual Pharmaceutical Co. v. Bartlett: Did the the First Circuit Court of Appeals err when it held that federal law does not preempt state law design-defect claims targeting generic pharmaceutical products because the conceded conflict between such claims and the federal laws governing generic pharmaceutical design allegedly can be avoided if the makers of generic pharmaceuticals simply stop making their products?

United States v. Kebodeaux: Did the court of appeals errd in conducting its analysis on the premise that respondent was not under a federal registration obligation until the Sex Offender Registration and Notification Act (SORNA) was enacted, when pre-SORNA federal law obligated him to register as a sex offender? and (2) Did the court of appeals err in holding that Congress lacks the Article I authority to provide for criminal penalties as applied to a person who was convicted of a sex offense under federal law and completed his criminal sentence before SORNA was enacted?

Sekhar v. United States: Does the "recommendation" of an attorney, who is a salaried employee of a governmental agency, in a single instance, constitute intangible property that can be the subject of an extortion attempt under the Hobbs Act?

University of Texas Southwestern Medical Center v. Nassar: Does the retaliation provision of Title VII of the Civil Rights Act of 1964 and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action)?

Vance v. Ball State University: Does another employee who was responsible for assigning work on a day-to-day basis, but wasn't otherwise responsible for hiring, firing, transferring, demoting, disciplining, or promoting decisions qualify as "supervisor" which would subject the University to harassment claims?
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