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SCOTUScast is a project of the Federalist Society for Law & Public Policy Studies. This audio broadcast series provides expert commentary on U.S. Supreme Court cases as they are argued and issued. The Federalist Society takes no position on particular legal or public policy issues; all expressions o…

The Federalist Society


    • Oct 7, 2021 LATEST EPISODE
    • infrequent NEW EPISODES
    • 17m AVG DURATION
    • 520 EPISODES


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    Latest episodes from SCOTUScast

    Yellen v. Confederated Tribes of the Chehalis Reservation - Post-Decision SCOTUScast

    Play Episode Listen Later Oct 7, 2021 33:17


    On June 25th, 2021 the Supreme Court decided Yellen v. Confederated Tribes of Chehalis Reservation, a case which concerned whether Alaska native regional and village corporations established pursuant to the Alaska Native Claims Settlement Act “Indian Tribes” for purposes of the CARES Act. Justice Sonia Sotomayor authored the 5-4 majority opinion of the Court, which held that ANCs are “Indian tribe[s]” under ISDA and thus eligible for funding under Title V of the CARES Act. Justice Neil Gorsuch authored a dissenting opinion, joined by Justices Clarence Thomas and Elena Kagan, arguing that the plain language and construction of the ISDA suggest that ANCs are not “Indian tribes,” supported by analogy to another statute with “nearly identical language in remarkably similar contexts,” and that the majority overlooked the critical statutory word “recognized.”With me today to discuss this case are Anthony Ferate, Of Counsel at Spencer Fan LLP, and Jennifer Weddle, Co-Chair of Greenberg Traurig's American Indian Law practice.


    Lange v. California - Post-Decision SCOTUScast

    Play Episode Listen Later Oct 7, 2021 31:54

    On June 23rd, 2021 the Supreme Court decided Lange v. California, a case which concerned whether the exigent circumstances exception to the 4th Amendment's warrant requirement apply when police are pursuing a suspect whom they believe committed a misdemeanor. In a unanimous decision, the Court held for Lange that "pursuit of a fleeing misdemeanor suspect does not categorically qualify as an exigent circumstance justifying a warrantless entry into a home." Justice Elena Kagan authored the majority opinion of the court. I am joined today by Clark Neily, Vice President for Criminal Justice at the Cato Institute, Larry H. James, Managing Partner at Crabbe Brown and James, and Vikrant P. Reddy, Senior Research Fellow at the Charles Koch Institute.

    Mahanoy Area School District v. B.L. - Post-Decision SCOTUScast

    Play Episode Listen Later Oct 7, 2021 33:07

    On June 23rd, 2021 the Supreme Court decided Mahanoy Area School Dist. v. B. L., a case which concerned whether the First Amendment prohibits public school officials from regulating off-campus student speech. Justice Breyer authored the majority opinion in the 8-1 decision, holding that “while public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the school are not sufficient to overcome the student's interest in free expression in this case.” Justice Thomas offered the lone dissent in the decision. Joining me today to discuss this decision is Michael R. Dimino, Professor of Law at Widener University Commonwealth Law School.

    Collins v. Yellen - Post-Decision SCOTUScast

    Play Episode Listen Later Oct 7, 2021 32:38

    On June 23rd, 2021 the Supreme Court decided Collins v. Yellen, a case which concerned the constitutionality of the structure of the Federal Housing Finance Agency. Joining me today to discuss this decision is Jason Levine, Partner at Alston & Bird, and Jeffrey McCoy, Attorney at the Pacific Legal Foundation.

    Cedar Point Nursery v. Hassid - Post-Decision SCOTUScast

    Play Episode Listen Later Oct 7, 2021 18:00


    On June 23rd, 2021 the Supreme Court decided Cedar Point Nursery v. Hassid, a case which concerned whether a California regulation granting labor organizations a “right to take access” to an agricultural employer's property to solicit support for unionization constitutes a per se physical taking under the Fifth Amendment. Chief Justice John Roberts authored the 6-3 majority opinion of the Court, holding that California's access regulation constitutes a per se physical taking. Joining me today to discuss this decision in Wen Fa, attorney at the Pacific Legal Foundation.


    National Collegiate Athletic Association v. Alston - Post-Decision SCOTUScast

    Play Episode Listen Later Oct 7, 2021 34:43


    On June 21st, 2021 the Supreme Court decided National Collegiate Athletic Association v. Alson, a case which concerned whether the NCAA's prohibition on compensation for college athletes violated federal antitrust law. Writing for a unanimous Court, Justice Gorsuch affirmed the ruling of the lower court, holding that the NCAA's rules restricting certain education-related benefits for student-athletes violate federal antitrust laws under a “rule of reason” analysis. Joining me today to discuss this decision is Michael Murray, former Principal Deputy Assistant Attorney General in the Department of Justice.


    United States v. Arthrex, Inc. - Post-Decision SCOTUScast

    Play Episode Listen Later Oct 7, 2021 50:30

    On June 21st, 2021 the Supreme Court decided United States v. Arthrex, Inc, a case which concerned the constitutionality of the Patent Trial and Appeal Board's authority to appoint Administrative Patent Judges. Writing for the 5-4 majority, Chief Justice Roberts concluded that the unreviewable authority wielded by APJs during inter partes review is incompatible with their appointment by the Secretary of Commerce to an inferior office, thereby vacating the lower court's judgement and remanding for further review.Three experts join us today to discuss the ruling. They are Professor Kristen Osenga, Austen E. Owen Research Scholar & Professor of Law at the University of Richmond School of Law, Professor Dmitry Karshtedt, Associate Professor of Law at the George Washington Law School, and Professor Gregory Dolin, Associate Professor of Law and Co-Director at the Center for medicine and Law at the University of Baltimore School of Law.

    California v. Texas - Post-Decision SCOTUScast

    Play Episode Listen Later Oct 7, 2021 61:40


    On June 17th, 2021 the Supreme Court decided California v. Texas, a case which concerned whether Texas (along with over a dozen States and two individuals) had standing to challenge the individual mandate of the Affordable Care Act (ACA). Writing for the majority in the 7-2 decision, Justice Breyer noted that “plaintiffs do not have standing to challenge the minimum essential coverage provision because they have not shown a past or future injury fairly traceable to defendants' conduct enforcing the specific statutory provision they attack as unconstitutional.” Justice Thomas filed a concurring opinion, Justice Alito filed a dissenting opinion in which Justice Gorsuch joined. Two experts join us to discuss the ruling and offer their differing views on the constitutional issues involved, including standing and the wider question of severability. They are Professor Jonathan Adler, the Johan Verheij Memorial Professor of Law, Case Western Reserve University School of Law, and Mario Loyola, Senior Fellow at the Competitive Enterprise Institute.


    Nestle USA, Inc. v. Doe - Post-Decision SCOTUScast

    Play Episode Listen Later Oct 7, 2021 57:45


    On June 17, 2021 the Supreme Court issued its 8-1 decision in Nestle USA, Inc. V. Doe et al and the consolidated case of Cargill, Inc. v. Doe I. In this case, the Court considered the question of whether an aiding and abetting claim against a domestic corporation brought under the Alien Tort Statute can overcome the exterritoriality bar where the claim based is on allegations of general corporate activity in the United States and where the plaintiffs cannot trace the alleged harms, which occurred abroad at the hands of unidentified foreign actors, to that activity.Discussing this decision today are Julian Ku, Senior Associate Dean for Academic Affairs, Faculty Director of International Programs, and Maurice A. Deane Distinguished Professor of Constitutional Law, Maurice A. Deane School of Law at Hofstra University, Professor William S. Dodge, the John D. Ayer Chair in Business Law and MLK Jr. Professor of Law at the UC Davis School of Law and Ilya Shapiro, Vice President and Director at the Robert A. Levy Center for Constitutional Studies at the Cato Institute.


    Fulton v. City of Philadelphia - Post-Decision SCOTUScast

    Play Episode Listen Later Oct 7, 2021 25:02


    On June 17th, 2021 the Supreme Court unanimously decided Fulton v. City of Philadelphia for petitioners. The issue before the court was whether the government violates the First Amendment by conditioning a religious agency's ability to participate in the foster care system on taking actions and making statements that directly contradict the agency's religious beliefs. Chief Justice John Roberts authored the majority opinion of the Court, which held that the refusal of Philadelphia to contract with CSS for the provision of foster care services unless CSS agrees to certify same-sex couples as foster parents violates the Free Exercise Clause of the First Amendment. Joining us today to discuss this decision is Prof. Mark L. Rienzi, President of the Becket Fund for Religious Liberty and Professor of Law at Catholic University.


    Terry v. United States - Post-Decision SCOTUScast

    Play Episode Listen Later Oct 7, 2021 18:42


    On June 14th, 2021, the Supreme Court decided Terry v. U.S. The issue before the Court was whether pre-August 3rd, 2010, crack offenders sentenced under 21 U.S.C 841(b)(1)(c) have a “covered offense” under Section 404 of the First Step Act. Justice Thomas delivered the opinion of the Court, in which Justices Roberts, Breyer, Alito, Kagan, Gorsuch, Kavanaugh, and Barrett joined. We are joined today by Vikrant P. Reddy, Senior Research Fellow at the Charles Koch Institute.


    Borden v. United States - Post-Decision SCOTUScast

    Play Episode Listen Later Oct 7, 2021 11:32


    On June 10th, 2021, the Supreme Court decided Borden v. United States. The issue before the Court was whether the “use of force” clause in the Armed Career Criminal Act encompasses crimes with an intent requirement of mere recklessness. Justice Elena Kagan authored the four-justice plurality opinion in which Breyer, Sotomayor, and Gorsuch joined, reversing the judgement of the Court of Appeals for the 6th Circuit, concluding that, quote, “a criminal offense with a mens rea of recklessness does not qualify as a “violent felony” under the ACCA's elements clause.” Justice Thomas filed an opinion concurring in the judgement. Justice Kavanaugh filed a dissenting opinion, in which Roberts, Alito, and Barrett joined. Joining us today to discuss this decision is Kent Scheidegger, Legal Director & General Counsel at the Criminal Justice Legal Foundation, and author of over 150 briefs in cases in the Supreme Court.


    Sanchez v. Mayorkas - Post-Decision SCOTUScast

    Play Episode Listen Later Oct 7, 2021 16:11

    On June 7, 2021, the Supreme Court decided Sanchez v. Mayorkas. The issue before the Court was whether the conferral of Temporary Protected Status under 8 U.S.C. § 1254a constitutes an “admission” into the United States under 8 U.S.C. § 1255, adjustment of status of nonimmigrant to that of person admitted for permanent residence. The Honorable Grover Rees, III, retired U.S. Ambassador to East Timor, and former General Counsel of the US Immigration and Naturalization Service from 1991 to 1993, joins us today to discuss this decision and its implications.

    Van Buren v. United States - Post-Decision SCOTUScast

    Play Episode Listen Later Jun 14, 2021 17:05

    On June 3, 2021 the Supreme Court decided Van Buren v. United States. The issue was whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose.In a 6-3 opinion authored by Justice Barrett, the Court reversed the ruling of the Court of Appeals for the Eleventh Circuit and remanded the case. The Supreme Court held, “An individual ‘exceeds authorized access’ under the Computer Fraud and Abuse Act of 1986, 18 U.S.C. § 1030(a)(2), when he accesses a computer with authorization but then obtains information located in particular areas of the computer — such as files, folders or databases — that are off-limits to him..”Justice Thomas filed a dissenting opinion, in which Chief Justice Roberts and Justice Alito joined.Orin Kerr, Professor of Law at UC Berkeley Law, joins us today to discuss this decision and its implications.

    United States v. Palomar-Santiago - Post-Decision SCOTUScast

    Play Episode Listen Later Jun 11, 2021 22:56


    On May 24, 2021 the Supreme Court decided United States v. Palomar-Santiago. The issue was whether a defendant who was removed from the United States is automatically entitled to a defense of invalid removal where the crime underlying his removal is no longer a qualifying removal offense within his circuit.In a 9-0 opinion authored by Justice Sotomayor, the Court reversed the ruling of the Court of Appeals for the Ninth Circuit and remanded the case. The Supreme Court held, “Each of 8 U.S.C. § 1326(d)’s statutory requirements for bringing a collateral attack on a prior deportation order is mandatory.”Brian Fish, Special Assistant to the United States Attorney in Baltimore, MD, joins us today to discuss this decision and its implications.


    United States v. Cooley - Post-Decision SCOTUScast

    Play Episode Listen Later Jun 7, 2021 10:37

    On June 1, 2021 the Supreme Court decided United States v. Cooley. The issue was whether the lower courts erred in suppressing evidence on the theory that a police officer of an Indian tribe lacked authority to temporarily detain and search the respondent, Joshua James Cooley, a non-Indian, on a public right-of-way within a reservation based on a potential violation of state or federal law.In a 9-0 opinion authored by Justice Breyer, the Court vacated the ruling of the Court of Appeals for the Ninth Circuit and remanded. The Supreme Court held, “A tribal police officer has authority to detain temporarily and to search a non-Native American traveling on a public right-of-way running through a reservation for potential violations of state or federal law.”Justice Alito filed a concurring opinion. Anthony Ferate, Of Counsel at Spencer Fane LLP, joins us today to discuss the Court’s decision and its implications.

    City of San Antonio v. Hotels.com - Post-Decision SCOTUScast

    Play Episode Listen Later Jun 3, 2021 24:43

    On June 1, 2021 the Supreme Court decided City of San Antonio, Texas v. Hotels.com L.P. The issue was whether, as the U.S. Court of Appeals for the 5th Circuit alone has held, district courts “lack[] discretion to deny or reduce” appellate costs deemed “taxable” in district court under Federal Rule of Appellate Procedure 39(e).In a 9-0 opinion authored by Justice Alito, the Court affirmed the ruling of the Court of Appeals for the Fifth Circuit. The Supreme Court held, “Federal Rule of Appellate Procedure 39 does not permit a district court to alter a court of appeals’ allocation of the costs listed in subdivision (e) of that rule.”Charles Campbell, Associate Dean for Academic Affairs and Associate Professor of Law at Faulkner University’s Jones School of Law, joins us today to discuss this decision and its implications.

    Carr v. Saul - Post-Decision SCOTUScast

    Play Episode Listen Later May 25, 2021 25:03


    On April 22, 2021 the Supreme Court decided Carr v. Saul. was whether a claimant seeking disability benefits under the Social Security Act forfeits an Appointments Clause challenge to the appointment of an administrative law judge by failing to present that challenge during administrative proceedings.In a 9-0 opinion authored by Justice Sotomayor, the Court reversed the ruling of the United States Court of Appeals for the Tenth Circuit and remanded the case. The Supreme Court held, “Principles of issue exhaustion do not require Social Security disability claimants to argue at the agency level that the administrative law judges hearing their disability claims were unconstitutionally appointed.”Justice Thomas filed an opinion concurring in part and concurring in the judgment, in which Justices Gorsuch and Barrett joined. Justice Breyer filed an opinion concurring in part and concurring in the judgment.Thomas Berry, Research Fellow at the Robert A. Levy Center for Constitutional Studies of Cato Institute and Managing Editor of the Cato Supreme Court Review, joins us today to discuss this decision and its implications.


    BP P.L.C. v. Mayor and City Council of Baltimore - Post-Decision SCOTUScast

    Play Episode Listen Later May 25, 2021 10:03


    On May 17, 2021 the Supreme Court decided BP P.L.C. v. Mayor and City Council of Baltimore.The issue was was whether 28 U.S.C. 1447(d) permits a court of appeals to review any issue encompassed in a district court’s order remanding a removed case to state court when the removing defendant premised removal in part on the federal-officer removal statute, 28 U.S.C. 1442, or the civil-rights removal statute, 28 U.S.C. 1443.In a 7-1 opinion authored by Justice Gorsuch, the Court vacated the ruling of the United States Court of Appeals for the Fourth Circuit, holding, “Where defendant energy companies premised 28 U. S. C. § 1447(d) removal in part on the federal officer removal statute, Section 1442, the U.S. Court of Appeals for the 4th Circuit erred in holding that it lacked jurisdiction to consider all grounds for removal rejected by the district court.”Justice Sotomayor filed a dissenting opinion. Justice Alito took no part in the consideration or decision of this case.Karen Harned, Executive Director of the National Federation of Independent Business Small Business Legal Center, joins us to discuss this decision.


    Edwards v. Vannoy - Post-Decision SCOTUScast

    Play Episode Listen Later May 25, 2021 12:15


    On May 17, 2021 the Supreme Court decided Edwards v. Vannoy. The issue was whether the Supreme Court’s decision in Ramos v. Louisiana applies retroactively to cases on federal collateral review.In a 6-3 opinion authored by Justice Kavanaugh, the Court affirmed the ruling of the United States Court of Appeals for the Fifth Circuit, holding, “The jury-unanimity rule announced in Ramos v. Louisiana does not apply retroactively on federal collateral review.”Justice Thomas filed a concurring opinion, in which Justice Gorsuch joined. Justice Gorsuch filed a concurring opinion, in which Justice Thomas joined. Justice Kagan filed a dissenting opinion, in which Justices Breyer and Sotomayor joined.Kent Scheidegger, Legal Director & General Counsel at the Criminal Justice Legal Foundation, joins us to discuss this decision and its implications.


    Jones v. Mississippi - Post-Decision SCOTUScast

    Play Episode Listen Later May 25, 2021 16:26


    On April 22, 2021 the Supreme Court decided Jones v. Mississippi. The issue was whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole. In a 6-3 opinion authored by Justice Kavanaugh, the Court affirmed the ruling of the Supreme Court of Mississippi, holding, “The Eighth Amendment does not require a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole.”Justice Thomas filed an opinion concurring in the judgment. Justice Sotomayor filed a dissenting opinion, in which Justices Breyer and Kagan joined.Marc Levin, Chief Policy Counsel for the Council on Criminal Justice and Senior Advisor of Right on Crime, joins us today to discuss this case and its implications.


    Facebook Inc. v. Duguid - Post-Decision SCOTUScast

    Play Episode Listen Later May 25, 2021 22:07

    On April 1, 2021 the Supreme Court decided Facebook Inc. v. Duguid. The issue was whether the definition of an "automatic telephone dialing system" in the Telephone Consumer Protection Act of 1991 encompasses any device that can “store” and “automatically dial” telephone numbers, even if the device does not “us[e] a random or sequential number generator.”In a 9-0 opinion authored by Justice Sotamayor, the Court reversed the ruling of the Court of Appeals for the Ninth Circuit and remanded the case. The Supreme Court held, “To qualify as an ‘automatic telephone dialing system’ under the Telephone Consumer Protection Act of 1991, a device must have the capacity either to store, or to produce, a telephone number using a random or sequential number generator.” This decision narrows the federal robocoll ban. Scott D. Delacourt, Partner at Wiley Rein LLP and Daniel Lyons, Professor of Law at Boston College School of Law, joins us today for a conversation moderated by Danielle Thumann, Attorney Advisor for FCC Commissioner Brendan Carr.

    Mahanoy Area School District v. B.L. - Post-Argument SCOTUScast

    Play Episode Listen Later May 20, 2021 33:32

    On April 28, 2021 the Supreme Court heard oral argument in Mahanoy Area School District v. B.L. The question before the court was whether Tinker v. Des Moines Independent Community School District, which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus. Michael Dimino, Professor of Law at Widener University Commonwealth Law School, joins us today to discuss this case's oral argument.

    City of San Antonio v. Hotels.com - Post-Argument SCOTUScast

    Play Episode Listen Later May 19, 2021 29:35

    On April 21, 2021 the Supreme Court heard oral argument in City of San Antonio v. Hotels.com. The question before the Court was whether, as the U.S. Court of Appeals for the 5th Circuit alone has held, district courts “lack[] discretion to deny or reduce” appellate costs deemed “taxable” in district court under Federal Rule of Appellate Procedure 39(e).Charles Campbell, Associate Professor of Law and Interim Dean at Faulkner University's Jones School of Law, joins us today to discuss this case's oral argument.

    Caniglia v. Strom - Post-Decision SCOTUScast

    Play Episode Listen Later May 19, 2021 19:39

    On May 17, 2021 the Supreme Court decided Caniglia v. Strom. The issue was whether the “community caretaking” exception to the Fourth Amendment’s warrant requirement extends to the home. In a 9-0 opinion authored by Justice Thomas, the Court vacated the ruling of the Court of Appeals for the First Circuit and remanded the case. The Supreme Court held, “Neither the holding nor logic of Cady v. Dombrowski justifies the removal of Edward Caniglia’s firearms from his home by police officers under a ‘community caretaking exception’ to the Fourth Amendment’s warrant requirement."Chief Justice Roberts filed a concurring opinion, in which Justice Breyer joined. Justices Alito and Kavanaugh also filed concurring opinions.Robert Frommer, Senior Attorney at the Institute for Justice, joins us to discuss this decision and its implications.

    Minerva Surgical Inc. v. Hologic Inc. - Post-Argument SCOTUScast

    Play Episode Listen Later May 18, 2021 17:08

    On April 21, 2021 the Supreme Court heard oral argument in Minerva Surgical Inc. v. Hologic Inc. The question before the Court was whether a defendant in a patent infringement action who assigned the patent, or is in privity with an assignor of the patent, may have a defense of invalidity heard on the merits.Daniel Ortiz, Michael J. and Jane R. Horvitz Distinguished Professor of Law and Director of the Supreme Court Litigation Clinic at the University of Virginia School of Law, joins us today to discuss this case's oral argument.

    United States v. Gary - Post-Argument SCOTUScast

    Play Episode Listen Later May 18, 2021 18:46

    On April 20, 2021 the Supreme Court heard oral argument in United States v. Gary. The question before the Court was whether a defendant who pleaded guilty to possessing a firearm as a felon, in violation of 18 U.S.C. 922(g)(1) and 924(a), is automatically entitled to plain-error relief if the district court did not advise him that one element of that offense is knowledge of his status as a felon, regardless of whether he can show that the district court’s error affected the outcome of the proceedings.Robert Leider, Assistant Professor of law at Antonin Scalia Law School at George Mason University, joins us today to discuss this case's oral argument.

    Terry v. United States - Post-Argument SCOTUScast

    Play Episode Listen Later May 18, 2021 15:07

    On May 4, 2021 the Supreme Court heard oral argument in Terry v. United States. The question before the court was whether pre-August 3, 2010, crack offenders sentenced under 21 U.S.C. § 841(b)(1)(C) have a “covered offense” under Section 404 of the First Step Act. Vikrant Reddy, Senior Reserch Fellow at the Charles Koch Institute, joins us today to discuss this case's oral argument.

    Sanchez v. Mayorkas - Post-Argument SCOTUScast

    Play Episode Listen Later Apr 29, 2021 24:40

    On April 19, 2021 the Supreme Court heard oral argument in Sanchez v. Mayorkas. The question before the court was under 8 U.S.C. § 1254a(f)(4), a grant of temporary protected status authorizes eligible noncitizens to obtain lawful-permanent-resident status under 8 U.S.C. § 1255.Hon. Grover Joseph Rees joins us today to dicsuss this case's oral argument.

    United States v. Cooley - Post-Argument SCOTUScast

    Play Episode Listen Later Apr 26, 2021 20:11

    On March 23, 2021 the Supreme Court heard oral argument in United States v. Cooley. The question before the court was whether the lower courts erred in suppressing evidence on the theory that a police officer of an Indian tribe lacked authority to temporarily detain and search the respondent, Joshua James Cooley, a non-Indian, on a public right-of-way within a reservation based on a potential violation of state or federal law.Anthony J. Ferate, Of Counsel at Spencer Fane LLP, joins us today to discuss this case's oral argument.

    Florida v. Georgia - Post-Decision SCOTUScast

    Play Episode Listen Later Apr 23, 2021 18:46

    On April 1, 2021, the Supreme Court decided Florida v. Georgia, an ongoing case of original jurisdiction involving Florida’s desire to limit the amount of water that Georgia uses in the Apalachicola-Chattahoochee-Flint River Basin. Justice Barrett, writing for the 9-0 majority, dismissed the case, holding that Florida failed to establish that Georgia’s overconsumption of interstate waters was either a substantial factor contributing to, or the sole cause of, Florida’s injuries.Tony Francois, Senior Attorney at the Pacific Legal Foundation, joins us today to discuss the court’s decision in this case.

    National Collegiate Athletic Association v. Alston - Post-Argument SCOTUScast

    Play Episode Listen Later Apr 23, 2021 19:07

    On March 31, 2021 the Supreme Court heard oral argument in NCAA v. Alston. The question before the court was Whether the U.S. Court of Appeals for the 9th Circuit erroneously held, in conflict with decisions of other circuits and general antitrust principles, that the National Collegiate Athletic Association eligibility rules regarding compensation of student-athletes violate federal antitrust law.Hon. Joshua D. Wright, professor and Executive Director of the Global Antitrust Institute at Antonin Scalia Law School, joins us today to discuss this case's oral argument.

    Goldman Sachs Group Inc. v. Arkansas Teacher Retirement System

    Play Episode Listen Later Apr 22, 2021 18:41

    On March 29, 2021 the Supreme Court heard oral argument in Goldman Sachs Group Inc. v. Arkansas Teacher Retirement System. The questions before the court were whether, first, a defendant in a securities class action may rebut the presumption of classwide reliance recognized in Basic Inc. v. Levinson by pointing to the generic nature of the alleged misstatements in showing that the statements had no impact on the price of the security, even though that evidence is also relevant to the substantive element of materiality; and, second, whether a defendant seeking to rebut the Basic presumption has only a burden of production or also the ultimate burden of persuasion.Ted Frank, Director at the Hamilton Lincoln Law Institute and the Center for Class Action Fairness, joins us today to discuss this case's oral argument.

    Torres v. Madrid - Post-Decision SCOTUScast

    Play Episode Listen Later Apr 2, 2021 13:23


    On March 25, 2021, the Supreme Court decided Torres v. Madrid. This case arises out of an incident Roxanne Torres had with police officers in which she was operating a vehicle under the influence of methamphetamine and in the process of trying to get away, endangered the two officers pursuing her. In the process, one of the officers shot and injured her. Torres pleaded no contest to three crimes: (1) aggravated fleeing from a law enforcement officer, (2) assault on a police officer, and (3) unlawfully taking a motor vehicle.In October 2016, she filed a civil-rights complaint in federal court against the two officers, alleging claims including excessive force and conspiracy to engage in excessive force. Construing Torres’s complaint as asserting the excessive-force claims under the Fourth Amendment, the court concluded that the officers were entitled to qualified immunity. In the court’s view, the officers had not seized Torres at the time of the shooting, and without a seizure, there could be no Fourth Amendment violation. The U.S. Court of Appeals for the Tenth Circuit affirmed.In a 5-3 vote the Supreme Court vacated and remanded. The Court held that the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued. Justice Roberts wrote the majority opinion. Justice Gorsuch filed a dissenting opinion, in which Justices Thomas and Alito joined. Justice Barrett took no part in the consideration or decision of this case. Kent Scheidegger, Legal Director and General Counsel, Criminal Justice Legal Foundation, joins us today to discuss this opinion.


    Caniglia v. Strom - Post-Argument SCOTUScast

    Play Episode Listen Later Apr 2, 2021 18:46

    On March 24, 2021 the Supreme Court heard oral arguement in Caniglia v. Strom. The question before the court was whether the “community caretaking” exception to the Fourth Amendment’s warrant requirement extends to the home. Robert Frommer, Senior Attorney at the Institute for Justice, joins us today to discuss this case's oral argument.

    United States v. Cooley - Post-Argument SCOTUScast

    Play Episode Listen Later Apr 2, 2021 20:11

    On March 23, 2021 the Supreme Court heard oral argument in United States v. Cooley. The question before the court was the lower courts erred in suppressing evidence on the theory that a police officer of an Indian tribe lacked authority to temporarily detain and search the respondent, Joshua James Cooley, a non-Indian, on a public right-of-way within a reservation based on a potential violation of state or federal law.Anthony Ferate, Of Counsel at Spencer Fane LLP, joins us today to discuss this case's oral argument.

    Cedar Point Nursery v. Hassid - Post-Argument SCOTUScast

    Play Episode Listen Later Apr 1, 2021 17:25

    On March 22, 2021 the Supreme Court heard oral argument in Cedar Point Nursery v. Hassid. The question before the Court was whether the uncompensated appropriation of an easement that is limited in time effects a per se physical taking under the Fifth Amendment.Wen Fa, attorney at the Pacific Legal Foundation, joins us today to discuss this case's oral argument.

    Carr v. Saul - Post-Argument SCOTUScast

    Play Episode Listen Later Apr 1, 2021 21:32

    On March 3, 2021, the Supreme Court will hear oral arguments in Carr v. Saul. The question before the Court was whether a claimant seeking disability benefits under the Social Security Act forfeits an Appointments Clause challenge to the appointment of an administrative law judge by failing to present that challenge during administrative proceedings.Jennifer L. Mascott, Assistant Professor of Law, Antonin Scalia Law School, George Mason University, and Richard Pierce, Lyle T. Alverson Professor of Law, George Washington University Law School, join us today to discuss this case's oral argument.

    Brnovich v. Democratic National Committee - Post-Argument SCOTUScast

    Play Episode Listen Later Mar 9, 2021 19:29

    On March 2, 2021 the Supreme Court heard oral argument in Brnovich v. Democratic National Committee. The questions before the court were: first, whether Arizona’s out-of-precinct policy, which does not count provisional ballots cast in person on Election Day outside of the voter’s designated precinct, violates Section 2 of the Voting Rights Act; and, second, whether Arizona’s ballot-collection law, which permits only certain persons (i.e., family and household members, caregivers, mail carriers and elections officials) to handle another person’s completed early ballot, violates Section 2 of the Voting Rights Act or the 15th Amendment.Derek Muller, Professor of Law at University of Iowa's College of Law, joins us today to discuss this case's oral argument.

    Federal Republic of Germany v. Philipp - Post-Decision SCOTUScast

    Play Episode Listen Later Mar 8, 2021 15:15

    On February 3, 2021, the Supreme Court decided Federal Republic of Germany v. Philipp. The court also issued a one-sentence opinion vacating a lower-court ruling in Republic of Hungary v. Simon, a similar lawsuit brought by Holocaust survivors seeking compensation for Hungary’s confiscation of Jewish property. The justices sent Hungary v. Simon back to the lower courts for further proceedings in light of the opinion in Germany v. Philipp.Germany v. Phillip arises out of lawsuit brought by the heirs of several Jewish art dealers who are seeking compensation for what they describe as the forced sale of medieval Christian relics under the Nazi regime. The respondents filed a lawsuit in federal court in the District of Columbia, invoking the expropriation exception of the Foreign Sovereign Immunities Act, which abrogates foreign sovereign immunity when “rights in property taken in violation of international law are in issue,” as the jurisdictional basis for their claims. Germany moved to dismiss, and the district court largely denied the motion, holding the claims fell within the scope of the expropriation exception. Germany appealed, and the U.S. Appeals Court for D.C. affirmed as to jurisdiction, reiterating its holding in a prior case that a genocidal taking is a violation of international law and rejecting Germany’s argument based on principles of international comity. In a unanimous ruling the Supreme Court vacated the lower-court ruling that allowed the lawsuit to go forward, agreeing with Germany that the lawsuit does not fall within an exception to the Foreign Sovereign Immunities Act, which generally bars lawsuits against foreign governments in U.S. courts.Alberto Coll, Vincent de Paul Professor of Law at DePaul University College of Law, joins us today to discuss this ruling and its implications.

    Lange v. California - Post-Argument SCOTUScast

    Play Episode Listen Later Mar 8, 2021 1:23

    On February 24, 2021 the Supreme Court heard oral argument in Lange v. California. The question before the court was whether the pursuit of a person whom a police officer has probable cause to believe has committed a misdemeanor categorically qualifies as an exigent circumstance sufficient to allow the officer to enter a home without a warrant. In this case, Arthur Lange was driving home on the highway in Sonoma, California when police pursued Lange with the intention of conducting a traffic stop. Police followed Lange home and activated their overhead lights once Lange pulled into his home's driveway. Lange pulled into his garage and the garage door began closing behind him. Police approached Lange and stopped the garage from closing with his foot. After brief questioning as to whether Lange knew he was being pursued, police stated they smelled alcohol on Lange's breath and charged Lange with driving under the influence.The trial court concluded that the officer had probable cause, denied the motion to suppress, and issued a conviction for Lange. Later, a civil court ruled that Lange's arrest was unlawful and an appellate court ruled that the arrest was lawful. On appeal to the California First District Court of Appeal, the court affirmed the conviction.Vikrant Reddy, Senior Research Fellow at the Charles Koch Institute and Clark Neily, Vice President for Criminal Justice at the Cato Institute, join us today to discuss this argument and its implications.

    Republican Party of Pennsylvania v. Degraffenreid - Post-Decision SCOTUScast

    Play Episode Listen Later Mar 4, 2021 10:36


    On February 22, 2021, by a 6-3 vote, the Supreme Court denied cert in Repubulican Party of Pennsylvania v. Degraffenreid. There were two questions presented, which the Court decided not to entertain. The first was whether the Pennsylvania Supreme Court usurped the Pennsylvania General Assembly’s plenary authority to “direct [the] Manner” for appointing electors for president and vice president under Article II of the Constitution, as well as the assembly’s broad power to prescribe “[t]he Times, Places, and Manner” for congressional elections under Article I, when the court issued a ruling requiring the state to count absentee ballots that arrive up to three days after Election Day as long as they are not clearly postmarked after Election Day. The second question was whether that decision is preempted by federal statutes that establish a uniform nationwide federal Election Day. Justices Thomas, Gorsuch, and Alito dissented from the cert denial. All three Justices acknowledged that hearing this case would not alter the outcome of the 2020 Presidential election but would be important in the event that similar issues occurred in upcoming elections. Derek Muller, Professor of Law at University of Iowa’s College of Law, joins us today to discuss this cert denial and the three justices’ dissents.


    United States v. Briggs - Post-Decision SCOTUScast

    Play Episode Listen Later Feb 23, 2021 19:30

    On December 10, 2020 the Supreme Court decided United States v. Briggs. The question presented was whether the U.S. Court of Appeals for the Armed Forces erred in concluding–contrary to its own longstanding precedent–that the Uniform Code of Military Justice allows prosecution of a rape that occurred between 1986 and 2006 only if it was discovered and charged within five years. Briggs argued on appeal that rape was not “punishable by death” and thus was subject to the five-year statute of limitations for non-capital crimes. The United States Air Force Court of Criminal Appeals (AFCCA) rejected his challenge, but upon appeal tp to the U.S. Court of Appeals for the Armed Forces, the C.A.A.F. reversed the lower court. Justice Alito wrote for a 8-0 majority, finding that there was no statute of limitations for military rape. Justice Amy Coney Barrett took no part in the decision. Arthur Rizer, Resident Senior Fellow at the R Street Institute, and Prof. Richard Sala, Assistant Professor of Law at the Vermont Law School, join us today to discuss this decision and its implications.

    Federal Communications Commission v. Prometheus Radio Project - Post-Argument SCOTUScast

    Play Episode Listen Later Feb 23, 2021 60:26

    On On January 19, 2021, the U.S. Supreme Court heard oral arguments in Federal Communications Commission v. Prometheus Radio Project. The question before the Court was whether the U.S. Court of Appeals for the 3rd Circuit erred in vacating as arbitrary and capricious the Federal Communications Commission orders under review, which, among other things, relaxed the agency’s cross-ownership restrictions to accommodate changed market conditions.Ms. Jane E. Mago, Consultant in Media Policy and Law and former General Counsel of the FCC, Hon. Michael O'Rielly, Visiting Fellow at the Hudson Institute and former Commissioner of the FCC, Mr. Christopher J. Wright, Partner at Harris, Wiltshire & Grannis and former General Counsel of the FCC, and Mr. Lawrence J. Spiwak, President, Phoenix Center for Advanced Legal and Economic Public Policy Studies, join us today to discuss this case's oral argument.

    Facebook Inc. v. Duguid - Post-Argument SCOTUScast

    Play Episode Listen Later Feb 23, 2021 18:03

    On December 8, 2020, the Supreme Court heard oral argument in Facebook Inc. v. Duguid. The issue presented was whether the definition of an "automatic telephone dialing system" in the Telephone Consumer Protection Act of 1991 encompasses any device that can “store” and “automatically dial” telephone numbers, even if the device does not “us[e] a random or sequential number generator.”Megan Brown, Partner at Wiley Rein LLP, and Daniel Lyons, Professor of Law at Boston College Law School, join us today to discuss this case's oral argument.

    Ford Motor Company v. Montana Eight Judicial District Court

    Play Episode Listen Later Feb 23, 2021 23:35

    On October 7, 2020, the Supreme Court heard oral argument in Ford Motor Company v. Montana Eight Judicial Circuit Court. The issue presented was whether the “arise out of or relate to” requirement for a state court to exercise specific personal jurisdiction over a nonresident defendant under Burger King Corp. v. Rudzewicz is met when none of the defendant’s forum contacts caused the plaintiff’s claims, such that the plaintiff’s claims would be the same even if the defendant had no forum contacts.Karen Harned, Executive Director at National Federation of Independent Business Small Business Legal Center and Jaime A. Santos, Partner at Goodwin Procter LLP, join us today to discuss this case's oral argument.

    Henry Schein Inc. v. Archer and White Sales Inc. - Post-Decision SCOTUScast

    Play Episode Listen Later Feb 22, 2021 34:59

    On January 25, 2021 the Supreme Court decided Henry Schein Inc. v. Archer and White Sales Inc.. The question presented was whether a provision in an arbitration agreement that exempts certain claims from arbitration negates an otherwise clear and unmistakable delegation of questions of arbitrability to an arbitrator. This case arose out of a dispute between two dental equipment sales companies. In 2019, the 5th Circuit decided two questions. First, it concluded that the companies’ contract called for arbitration of the “gateway question” of whether a dispute is arbitrable. Second, it concluded that a court (rather than an arbitrator) should determine whether this particular dispute fell within an exception from the contract’s arbitration clause. The Supreme Court dismissed the writ of certiorari as improvidently granted. Erika Birg, Partner at Nelson Mullins, and Richard Faulkner, Of Counsel at Bennett Injury Law, join us today to discuss this ruling and its implications.

    City of Chicago, Illinois v. Fulton

    Play Episode Listen Later Feb 3, 2021 16:42


    On January 14, 2021 the Supreme Court decided City of Chicago, Illinois v. Fulton. The question presented was whether an entity that is passively retaining possession of property in which a bankruptcy estate has an interest has an affirmative obligation under the Bankruptcy Code’s automatic stay, 11 U.S.C § 362, to return that property to the debtor or trustee immediately upon the filing of the bankruptcy petition. The debtors believe that a different provision of the code, obligated the city to return the cars as soon as they filed for bankruptcy relief. The bankruptcy court agreed, and later, the 7th Circuit affirmed that ruling. By a vote of 8-0, the Supreme Court vacated and remanded. Writing for the Court, Samuel Alito indicated that “the mere retention of estate property after the filing of a bankruptcy petition does not violate §362(a)(3) of the Bankruptcy Code.”Justice Alito’s opinion was joined by all other members of the Court except Justice Barrett, who took no part in the consideration or decision of the case. Justice Sotomayor filed a concurring opinion.Ralph Brubaker, Carl L. Vacketta Professor of Law at University of Illinois’s College of Law, joins us today to discuss this ruling.


    BP P.L.C. v. Mayor and City Council of Baltimore - Post-Argument SCOTUScast

    Play Episode Listen Later Jan 22, 2021 11:51


    On January 19, 2021, the Supreme Court heard oral argument in BP P.L.C. v. Mayor and City Council of Baltimore. The question presented was whether 28 U.S.C. 1447(d) permits a court of appeals to review any issue encompassed in a district court’s order remanding a removed case to state court when the removing defendant premised removal in part on the federal-officer removal statute, 28 U.S.C. 1442, or the civil-rights removal statute, 28 U.S.C. 1443.Philip Goldberg, Special Counsel for the Manufacturers’ Accountability Project, and Washington D.C. Office Managing Partner, Shook, Hardy & Bacon, LLP, joins us today to discuss this case's oral argument.


    Henry Schein Inc. v. Archer and White Sales Inc. - Post-Argument SCOTUScast

    Play Episode Listen Later Jan 11, 2021 22:37

    On December 18, 2020 the Supreme Court heard oral argument in Henry Schein Inc. v. Archer and White Sales Inc. The question presented was whether a provision in an arbitration agreement that exempts certain claims from arbitration negates an otherwise clear and unmistakable delegation of questions of arbitrability to an arbitrator. The Fifth Circuit stated that an agreement that exempts certain disputes from arbitration does not clearly and unmistakably delegate arbitrability to the arbitrator for disputes that fall within the exception. Erika Birg, Partner at Nelson Mullins Riley & Scarborough LLP, joins us today to discuss this ruling.

    Rutledge v. Pharmaceutical Care Management Association - Post-Decision SCOTUScast

    Play Episode Listen Later Dec 28, 2020 9:39


    On December 10, 2020 the Supreme Court decided Rutledge v. Pharmaceutical Care Management Association. The question presented was whether the Employee Retirement Income Security Act of 1974 (ERISA) pre-empts the State of Arkansas’ Act 900, which regulates the price at which pharmacy benefit managers reimburse pharmacies for the cost of drugs covered by prescription-drug plans. The U.S. Court of Appeals for the Eighth Circuit held that ERISA preemption applied. By a vote of 8-0, the Supreme Court reversed that judgment and remanded the case. Writing for the Court, Justice Sotomayor indicated that Act 900 “has neither an impermissible connection with nor reference to ERISA and is therefore not pre-empted.”Justice Sotomayor’s opinion was joined by all other members of the Court except Justice Barrett, who took no part in the consideration or decision of the case. Justice Thomas filed a concurring opinion.Max Schulman, an Associate at Gibson, Dunn & Crutcher, joins us today to discuss this ruling.


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