Category: 3-LawSometimeCommentary

On December 7, 2015, the Supreme Court heard oral argument in Dollar General Corporation v. Mississippi Band of Choctaw Indians. This case concerns a dispute over tribal court jurisdiction relating to allegations that the non-Indian manager of a Dollar General store on Choctaw tribal land sexually molested an Indian minor who interned at the store. When the minor’s parents sought to hold Dolgencorp--the subsidiary that operated the store--vicariously liable for the manager’s conduct, Dolgencorp petitioned in federal district court for an injunction barring tribal court proceedings, on the grounds that the tribal court lacked jurisdiction. The district court denied relief, concluding that while tribal courts typically lack civil authority over the conduct of non-members on non-Indian land within a reservation, Dolgencorp’s situation fell within a “consensual relationship” exception to the rule. The U.S. Court of Appeals for the Fifth Circuit affirmed, and denied rehearing en banc over the dissent of five judges. -- The question before the Supreme Court is whether Indian tribal courts have jurisdiction to adjudicate civil tort claims against non-members, including as a means of regulating the conduct of non-members who enter into consensual relationships with a tribe or its members. -- To discuss the case, we have Zachary Price, who is Associate Professor of Law at University of California, Hastings College of Law.

On December 8, 2015, the Supreme Court decided Shapiro v. McManus. In this case several Maryland citizens sued state election officials claiming that a 2011 redistricting plan violated their rights to political association and equal representation under the First and Fourteenth Amendments. Although federal law normally requires such claims to be heard by a three-judge federal court, a single judge dismissed the suit for failure to state a claim, and the U.S. Court of Appeals for the Fourth Circuit affirmed. -- The question before the Supreme Court was whether a single-judge federal district court may determine that a claim governed by the Three-Judge Court Act is insubstantial, and that three judges therefore are not required--not because it concludes that the complaint is wholly frivolous, but because it concludes that the complaint fails to state a claim under Federal Rule of Civil Procedure 12(b)(6). -- By a vote of 9-0, the Supreme Court reversed the judgment of the Fourth Circuit and remanded the case. Justice Scalia delivered the opinion for a unanimous Court, holding that the citizens’ redistricting challenge was not so insubstantial that it could be dismissed by a single judge, and should have been considered by a three-judge Court. -- To discuss the case, we have Michael T. Morley, who is Assistant Professor at Barry University School of Law.

What is the meaning of “one person, one vote? That’s the main question in Evenwel v. Abbott, argued this week at the Supreme Court. On this episode, Dahlia speaks with Andrew Grossman and Nathaniel Persily -- experts on opposing sides of the case. She also plays a few highlights from the week’s big affirmative action case, Fisher v University of Texas at Austin.

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On November 2, 2015, the Supreme Court heard oral argument in Spokeo, Inc. v. Robins. Robins sued website operator Spokeo, Inc. under the Fair Credit Reporting Act, complaining that Spokeo had published inaccurate personal information about Robins. The district court determined that Robins had failed to allege an injury-in-fact and dismissed the case for lack of standing. The U.S. Court of Appeals for the Ninth Circuit reversed, concluding that Spokeo’s alleged violations of Robins’ statutory rights constituted sufficient injury, and that Robins satisfied the other requirements for Article III standing. -- The question Spokeo raises before the Supreme Court is whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute. -- To discuss the case, we have Erin Hawley, who is Associate Professor of Law at University of Missouri School of Law.

On December 2, 2015, the Supreme Court heard oral argument in Gobeille v. Liberty Mutual Insurance Company. Liberty Mutual Insurance Company (Liberty Mutual) operates a self-insured employee health plan through a third-party administrator. Vermont state law requires such plans to file with the State reports concerning claims data and certain other information. When Vermont subpoenaed claims data from Liberty Mutual’s third-party administrator, Liberty Mutual sued and argued that the federal Employment Retirement Income Security Act of 1974 (ERISA) preempted the Vermont statute. The district court found no preemption and ruled in favor of Vermont. On appeal a divided panel of the U.S. Court of Appeals for the Second Circuit reversed and held that ERISA preemption did apply. -- The question before the Court is whether the Second Circuit erred in holding that ERISA preempts Vermont's health care database law as applied to the third-party administrator for a self-funded ERISA plan. -- To discuss the case, we have John Ohlendorf, who is an associate at Cooper & Kirk, PLLC.

On November 10, 2015, the Supreme Court heard oral argument in Luis v. U.S. Luis was indicated for Medicare fraud involving alleged kickbacks to patients who enrolled with Luis’ home healthcare companies. The government then brought a civil action to restrain Luis’ assets--including substitute property of an equivalent value to that actually traceable to the alleged fraud--before her criminal trial. Although Luis objected that she needed these assets to pay for defense counsel, the district court ruled in favor of the government and the U.S. Court of Appeals for the 11th Circuit affirmed. -- The question before the Supreme Court is whether the pretrial restraint of a criminal defendant's legitimate, untainted assets (those not traceable to a criminal offense) needed to retain counsel of choice violates the Fifth and Sixth Amendments. -- To discuss the case, we have John Malcolm, who is Director of the Edwin Meese III Center for Legal and Judicial Studies, and the Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow at the Heritage Foundation.

On December 1, 2015, the Supreme Court decided OBB Personenverkehr AG v. Sachs. This case concerns the scope of the commercial activity exception to the Foreign Sovereign Immunities Act (FSIA). Under this exception, sovereign immunity does not bar a lawsuit “based on a commercial activity carried on in the United States by [a] foreign state.” In this case Carol Sachs sued the Austrian national railroad when she suffered serious injuries while attempting to board an Austrian train. The question is whether Sachs’ purchase of her rail pass in the United States brought her suit within the commercial activity exception. The U.S. Court of Appeals for the Ninth Circuit held that it did. -- By a vote of 9-0, the Supreme Court reversed the judgment of the Ninth Circuit. Chief Justice Roberts delivered the opinion for a unanimous Court, holding that Sachs’ suit was “based on” the railway’s conduct in Austria and therefore outside the FSIA’s commercial activity exception. -- To discuss the case, we have Edwin D. Williamson, who is Of Counsel at Sullivan & Cromwell LLP.

A half-century after Brown v. Board of Education, should the Supreme Court still be in the business of integrating public schools and universities? Dahlia sits down with University of Virginia legal historian Risa Golubuff to discuss the backdrop to the term’s big affirmative action case, Fisher v University of Texas.

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On November 4, 2015, the Supreme Court heard oral argument in Shapiro v. McManus. In this case several Maryland citizens sued state election officials claiming that a 2011 redistricting plan violated their rights to political association and equal representation under the First and Fourteenth Amendments. Although federal law normally requires such claims to be heard by a three-judge federal court, a single judge dismissed the suit for failure to state a claim, and the U.S. Court of Appeals for the Fourth Circuit affirmed. -- The question before the Supreme Court is whether a single-judge federal district court may determine that a claim governed by the Three-Judge Court Act is insubstantial, and that three judges therefore are not required--not because it concludes that the complaint is wholly frivolous, but because it concludes that the complaint fails to state a claim under Federal Rule of Civil Procedure 12(b)(6). -- To discuss the case, we have Michael T. Morley, who is Assistant Professor at Barry University School of Law.

On October 5, 2015, the Supreme Court heard oral argument in OBB Personenverkehr AG v. Sachs. This case involves a dispute regarding whether federal courts have jurisdiction over a lawsuit brought by Carol Sachs against OBB Personenverkher--the Austrian national railroad--when her legs were crushed by a train in Austria while she was using a Eurail Pass that she had purchased in the United States. -- The question before the Supreme Court is twofold: (1) whether common law principles of agency apply in determining whether an entity is an “agent” of a foreign state under the Foreign Sovereign Immunities Act of 1976 (FSIA); and (2) whether, under the first clause of the commercial activity exception of the FSIA, a tort claim for personal injuries suffered in connection with travel outside of the United States is “based upon” the allegedly tortious conduct occurring outside of the United States, or the preceding sale of the ticket in the United States for the travel entirely outside the United States. -- To discuss the case, we have Edwin D. Williamson, who is Of Counsel at Sullivan & Cromwell LLP.