Petitions to watch | Conference of September 26, 2011

The Court is currently in its summer recess. No oral arguments are scheduled until October, and no Conferences are scheduled until Monday, September 26, when the Justices will be formally back at work. At that Conference, they will select cases for review from the summer lists. Because our list of "Petitions to watch" for that Conference will be quite large, we will feature the petitions in installments, as they are distributed for the Court's review. This set of petitions covers issues such as whether Internet-based music services "perform a work 'publicly'" for purposes of the Copyright Act, whether corporations may be sued for torture and extrajudicial killings, and whether the Second Amendment protects the right to carry a handgun outside the home without a carry permit. These are petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues. Title: Magner v. Gallagher Docket: 10-1032 Issue(s): (1) Whether disparate impact claims are cognizable under the Fair Housing Act; and, if so (2) what test should be used to analyze them. Certiorari stage documents: Opinion below (8th Cir.) Petition for certiorari Brief in opposition of respondents Thomas J. Gallagher et al. Petitioners' reply Amicus brief of International Municipal Lawyers Association Title: Williams v. Maryland Docket: 10-1207 Issue(s): Whether the right to carry or transport a registered handgun outside the home without a carry permit is protected by the Second Amendment. Certiorari stage documents: Opinion below (Md. Ct. App.) Petition for certiorari Brief in opposition Petitioner's reply Title: Roth v. United States Docket: 10-1220 Issue(s): Whether a "willful" violation of the complex regulatory provisions of the Arms Export Control Act, 22 U.S.C. § 2778, may be established by proof that a defendant intended to violate any law whatsoever. Certiorari stage documents: Opinion below (6th Cir.) Petition for certiorari Brief in opposition Title: Conway v. Langston Docket: 10-1244 Issue(s): Whether a court of appeals violates the sufficiency-of-the-evidence test laid out in Jackson v. Virginia (1979) when it judges the sufficiency of the evidence by reference to the arguments made in the prosecutor's summation, rather than in light of the evidence presented at trial; and 2) whether the decision below failed to accord the proper deference mandated by 28 U.S.C. § 2254(d)(1) to a state appellate court which held that the evidence was sufficient. Certiorari stage documents: Opinion below (2d Cir.) Petition for certiorari Brief in opposition (forthcoming) Title: Allison v. Diaz Docket: 10-1264 Issue(s): (1) Whether it is necessarily unreasonable under Strickland v. Washington for a state court to deny a defendant's ineffective-counsel claim premised on the theory that, before presenting a defense of consensual sexual relations in a rape prosecution, counsel must secure DNA testing of genetic material obtained from the alleged victim in case it might disclose evidence of somebody else's DNA; and (2) whether it is necessarily unreasonable under Strickland for a state court to reject such an ineffective-counsel claim where the defendant presents no evidence that scientific testing of the genetic material in fact disclosed evidence of DNA from somebody else. Certiorari stage documents: Opinion below (9th Cir.) Petition for certiorari Brief in opposition Amicus brief of the District Attorney of Sacramento County Petitioner's reply Title: Utah Highway Patrol Ass'n v. American Atheists Docket: 10-1276 Issue(s): (1) Which Establishment Clause test should be applied when analyzing passive public displays; (2) does the Establishment Clause forbid roadside memorial crosses marking the site of death for state highway troopers killed in the line of duty; and (3) is a collection of memorials owned by a private organization, disclaimed by the state, and located on both private and public property properly classified as government speech? Certiorari stage documents: Opinion below (10th Cir.) Petition for certiorari Brief in opposition Amicus brief of New Tribes Mission Amicus brief of Utah Sheriffs' Association Amicus brief of the Foundation for Moral Law Amicus brief of the Becket Fund for Religious Liberty Amicus brief of Robert E. Mackey Petitioner's reply Title: Davenport v. American Atheists, Inc. Docket: 10-1297 Issue(s): (1) What is the appropriate test for evaluating whether a passive display with religious imagery violates the Establishment Clause; (2) whether this Court should set aside the "endorsement test" in favor of the "coercion test"; and (3) whether a memorial cross placed on state land by a private organization to commemorate fallen state troopers is an unconstitutional establishment of religion. Certiorari stage documents: Opinion below (10th Cir.) Petition for certiorari Brief in opposition Petitioners' reply Amicus brief of the American Center for Law and Justice Amicus brief of the Family Research Council et al. Amicus brief of Mothers Against Drunk Driving Amicus brief of Louisiana et al. Amicus brief of the American Legion Amicus brief of New Tribes Mission Amicus brief of Becket Fund for Religious Liberty Amicus brief of Utah Sheriffs' Association Amicus brief of American Civil Rights Union Title: BDO Seidman, LLP v. Khan Docket: 10-1331 Issue(s): (1) Whether, on a motion to compel arbitration, the Prima Paint doctrine of "separability" should be extended to gateway challenges to arbitrability on the basis of the scope, as opposed to the validity, of an arbitration clause; and (2) whether, on a motion to compel arbitration, a court, in classifying the general scope of an arbitration clause, is restricted to the two categories of broad and narrow. Certiorari stage documents: Opinion below (Ill. App. Ct. 4th Dist.) Petition for certiorari Brief in opposition Petitioners' reply (forthcoming) Title: American Society of Composers, Authors and Publishers v. United States Docket: 10-1337 Issue(s): Does an Internet-based music service "perform a work 'publicly'" for purposes of the Copyright Act when it transmits a performance of a copyrighted musical work to the public by means of a digital download? Certiorari stage documents: Opinion below (2d Cir.) Petition for certiorari Brief in opposition Amicus brief of Twelve Foreign Performing Societies Amicus brief of Broadcast Music, Inc. Amicus brief of Independent Music Publishers et al. Amicus brief of Ralph Oman Petitioner's reply Title: Lockwood v. Sheppard, Mullin, Richter & Hampton, LLP Docket: 10-1339 Issue(s): Whether under the implied preemption principles in Buckman Co. v. Plaintiffs' Legal Committee (2001), federal patent law bars an aggrieved patent owner-plaintiff from asserting a state law claim seeking relief for harm to patent property rights caused by a private party maliciously initiating a sham administrative patent reexamination proceeding before the U.S. Patent and Trademark Office, where "fraud on the agency" is not an element of the claim, and where the agency itself cannot remedy the harm addressed by state law. Certiorari stage documents: Opinion below (Fed. Cir.) Petition for certiorari Brief in opposition Petitioners' reply Amicus brief of iRunway India Private, Ltd. Amicus brief of Law Professors Amicus brief of the TPL Group et al. Title: Fast Break Foods LLC v. Saudi Arabian Oil Co. Docket: 10-1393 Issue(s): (1) Whether the political question doctrine deprives the federal courts of jurisdiction to adjudicate a Sherman Act and Clayton Act damage case against both private and state-owned businesses operating in the United States; and (2) whether the act of state doctrine bars antitrust claims against defendants whose conduct was commercial, and where it came to fruition and had its effect in the United States. Certiorari stage documents: Opinion below (5th Cir.) Petition for certiorari Brief in opposition Petitioners' reply Title: United States v. State of New York Docket: 10-1404 Issue(s): Whether the United States may be barred from enforcing the Nonintercourse Act against a state that repeatedly purchased and resold (at a substantial profit) Indian lands in violation of the Act between 1795 and 1846, based on the passage of time and the transfer of the unlawfully obtained Indian lands into the hands of third parties, when the United States seeks monetary relief only against the state. Certiorari stage documents: Opinion below (2d Cir.) Petition for certiorari Brief in opposition Amicus brief of National Congress of American Indians Amicus brief of Law Professors Petitioner's reply Title: Doe v. Todd County School Dist. Docket: 10-1411 Issue(s): (1) Whether, for purposes of determining whether formal process is due a student who seeks to appeal a disciplinary suspension, a disciplinary suspension of a student with a disability ends when it becomes a change of educational placement under the Individuals with Disabilities Education Improvement Act of 2004 (IDEA); and (2) whether IDEA administrative procedures provide a suitable remedy for a disabled student's claim that school administrators violated his constitutional due process rights by suspending him from school without formal due process. Certiorari stage documents: Opinion below (8th Cir.) Petition for certiorari Brief in opposition Amicus brief of South Dakota Advocacy Services et al. Petitioner's reply Title: Fein, Such, Kahn and Shepard, PC v. Allen Docket: 10-1417 Issue(s): Is a communication from a debt collector to a debtor's attorney actionable under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.? Certiorari stage documents: Opinion below (3d Cir.) Petition for certiorari Brief in opposition Petitioner's reply (forthcoming) Title: Oneida Nation of New York v. County of Oneida, New York Docket: 10-1420 Issue(s): (1) Whether the court of appeals contravened this Court's decisions in Oneida Indian Nation of New York v. County of Oneida and City of Sherrill v. Oneida Indian Nation by ruling that "equitable considerations" rendered petitioners' claims for money damages for the dispossession of their tribal lands in violation of federal law void ab initio; and (2) whether the court of appeals impermissibly encroached on the legislative power of Congress by relying on "equitable considerations" to bar petitioners' claims as untimely, even though they were brought within the statute of limitations fixed by Congress for the precise tribal land claims at issue. Certiorari stage documents: Opinion below (2d Cir.) Petition for certiorari Brief in opposition Petitioners' reply Amicus brief of Law Professors Amicus brief of National Congress of American Indians Title: Vernor v. Autodesk, Inc. Docket: 10-1421 Issue(s): Whether the owner of a copyright in a work, by granting a limited license, can withhold ownership of particular copies of that work and thus deprive the public of (1) the right to "sell or otherwise dispose" of those copies under § 109(a) of the Copyright Act and (2) as to computer programs, the right to make additional copies that are essential steps in the program's use under § 117(a) of the Copyright Act. Certiorari stage documents: Opinion below (9th Cir.) Petition for certiorari Brief in opposition Amicus brief of the American Library Association Petitioner's reply Title: Eist v. Maryland State Bd. of Physicians Docket: 10-1425 Issue(s): (1) Whether a state may restrict a patient's federal constitutional right to privacy by compelling a physician to disclose confidential patient records without notice to and authorization by the patient and in conflict with the physician's ethical obligations; (2) whether a state agency may simultaneously serve as investigator, prosecutor and adjudicator with respect to a licensee under its jurisdiction without amending the state's constitution which explicitly separates legislative, executive and judicial powers; and (3) whether a physician may be disciplined by a state's medical licensing board if: (a) the relevant statutory language – "fails to cooperate with a lawful investigation" – is unconstitutionally vague; (b) the board never notified the patients it was seeking their confidential medical records; or (c) the board's simultaneous roles as investigator, prosecutor and adjudicator deprive petitioner of his right to due process. Certiorari stage documents: Opinion below (Md. Ct. App.) Petition for certiorari Brief in opposition Amicusbrief of American Association of Practicing Psychiatrists et al. Petitioner's reply Title: AmeriCredit Financial Services, Inc. v. Penrod Docket: 10-1443 Issue(s): Whether Section 1325(a)(*) of the Bankruptcy Code prohibits the bifurcation of secured indebtedness when the debt arises from a transaction in which a car dealer extends financing to a purchaser, and that financing includes a charge for the dealer's discharge of the purchaser's debt on a trade-in vehicle. Certiorari stage documents: Opinion below (9th Cir.) Petition for certiorari Brief in opposition Amicus brief of American Bankers Association Amicus brief of American Financial Services Association et al. Amicus brief of Ally Financial Inc. et al. Reply brief (forthcoming) Title: Mylan Laboratories, Inc. v. Blue Cross Blue Shield of Massachusetts Docket: 10-1500 Issue(s): (1) May diversity jurisdiction be created retroactively after a trial when the plaintiffs' citizenship was never pleaded or proven? (2) Whether the exception for a "jurisdictional spoiler" recognized in Newman-Green, Inc. v. Alfonzo-Larrain, permits a court to sever numerous nondiverse parties who are also real parties in interest . Certiorari stage documents: Opinion below (D.C. Cir.) Petition for certiorari Brief in opposition Petitioners' reply Title: Rezner v. Unicredit Bank AG Docket: 10-1503 Issue(s): Whether an individual plaintiff, who paid money to defendants in reliance on mail and wire fraud directed to him, lacks standing to bring a civil RICO claim because the racketeering conduct was in furtherance of a scheme intended to defraud the government. Certiorari stage documents: Opinion below (9th Cir.) Petition for certiorari Brief of Unicredit Bank AG and Unicredit Finance LLC in opposition Petitioner's reply Title: DeWeese v. American Civil Liberties Union of Ohio Foundation, Inc. Docket: 10-1512 Issue(s): (1) Whether an organization has standing under Article III to bring an Establishment Clause challenge based on an "injury" allegedly sustained by one of its members; (2) whether petitioner's purported religious purpose behind a previous courtroom display renders any proffered secular purpose behind a new display a sham; and (3) whether petitioner's jurisprudential commentary was an impermissible endorsement of religion. Certiorari stage documents: Opinion below (6th Cir.) Petition for certiorari Brief in opposition Amicus brief of the Foundation for Moral Law Petitioner's reply Title: Bowoto v. Chevron Docket: 10-1536 Issue(s): Whether corporations and other legal entities may be sued for torture and extrajudicial killing under the Torture Victim Protection Act of 1991. Certiorari stage documents: Opinion below (9th Cir.) Petition for certiorari Brief in opposition Petitioners' reply (forthcoming) Title: Carder v. Continental Airlines, Inc. Docket: 10-1546 Issue(s): Whether the Uniformed Services Employment and Reemployment Rights Act ("USERRA") provide servicemembers a cause of action when their civilian workplace is sufficiently poisoned with harassment based upon military status so as to alter conditions of their employment. Certiorari stage documents: Opinion below (5th Cir.) Petition for certiorari Brief in opposition Amicus brief of John Marshall Law School Veterans Legal Support Center & Clinic et al. (forthcoming) Title: Beard v. Commissioner Docket: 10-1553 Issue(s): (1) Whether the overstatement of the basis of an asset in reporting a taxable transaction on an income tax return constitutes an omission "from gross income" that extends the limitations period for the assessment of tax from three to six years under Section 6501(e)(1)(A) of the Internal Revenue Code; and (2) whether and under what circumstances a temporary regulation adopted by the Secretary of the Treasury is entitled to deference. Certiorari stage documents: Opinion below (7th Cir.) Petition for certiorari Brief in opposition

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