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H/T SCOTSUBlog. Nothing earth-shattering, but worthwhile to note.

The full order list is here.

Docket: 08-998
Title: Hamilton, Chapter 13 Trustee v. Lanning
Issue: The Court limited the question presented to the following: “Whether in calculating the debtor’s ‘projected disposal income’ during the plan period, the bankruptcy court may consider evidence suggesting that the debtor’s income or expenses during that period are likely to be different from her income or expenses during the pre-filing period.”

• Opinion below (10th Circuit)
• Petition for certiorari
• Amicus brief of the United States (recommending that cert. be granted)

Note: Akin Gump now represents the respondent in this case.

Docket: 08-1457
Title: New Process Steel v. National Labor Relations Board
Issue: Whether Section 3(b) of the National Labor Relations Act, 29 U.S.C. § 153(b), authorizes the NLRB to act when only two of its five positions are filled, if the Board has previously delegated its full powers to a three-member group of the Board that includes the two remaining members; does the NLRB have authority to decide cases with only two sitting members, where 29 U.S.C. § 153(b) provides that “three members of the Board shall, at all times, constitute a quorum of the Board”?

• Opinion below (7th Circuit)
• Petition for certiorari
• Brief in opposition
• Amicus brief of the U.S. Chamber of Commerce

Docket: 09-223
Title: Levin, Tax Commissioner of Ohio v. Commerce Energy, Inc.
Issue: Does either the Tax Injunction Act, 28 U.S.C. § 1341, or comity principles bar federal court jurisdiction over a case alleging federal equal protection and dormant commerce clause claims when the plaintiffs do not challenge their own tax assessment and the relief sought is directed to specific tax exemptions or exclusions applicable to only four other taxpayers?

• Opinion below (6th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Amicus brief for 29 states

The Court has invited the Solicitor General to submit briefs in the following cases:

Docket: 09-34
Title: Pfizer Inc. v. Abdullahi et al.
Issue: Whether Alien Tort Statute (ATS) jurisdiction can extend to a private actor based on alleged state action by a foreign government where there is no allegation that the government knew of or participated in the specific acts by the private actor claimed to have violated international law. Whether, absent state action, a complaint that a private actor has conducted a clinical trial of a medication without adequately informed consent can surmount the “high bar to new private causes of action” under the ATS.

• Opinion below (2^nd Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Brief amicus curiae of Chamber of Commerce of the United States of America
• Brief amici curiae of Washington Legal Foundation et al.

Note: Neither Chief Justice Roberts nor Justice Sotomayor took part in this order.

Check out Professor Barnett’s Lecture at Duke Law School on Lochner, Natural Rights, and the Fourteenth Amendment.

[youtube=http://www.youtube.com/watch?v=vgIBqxReHz0]

H/T Paul G. on FB

Professor Barnett gave a similar talk at George Mason this past year (pictures here). I’m glad Duke was able to record it. Definitely worth a watch.

At Volokh, Jeff Rowes provides a sketch of IJ’s new suit challenging NOTA and bone marrow transplants. Read the entire post, but here is the constitutional theory:

Of course, not every legislative mistake is unconstitutional.  But a legislative mistake so profound as to render a statutory provision irrational is unconstitutional when it affects liberty.  The Supreme Court has invalidated irrational statutes under the rational basis test at least a dozen times and there are literally hundreds of state and federal cases doing the same thing.

Here’s our constitutional theory in a nutshell.  The provable absence of a rational basis for the bone marrow provision of NOTA means that the statute violates the substantive due process right of doctors, nurses, patients, and donors to participate in safe, accepted, lifesaving, and otherwise legal medical treatment.

Next, throwing people in prison for compensating marrow-cell donors, but not throwing people in prison for compensating blood or sperm donors, violates equal protection because there is no non-arbitrary distinction between these acts.  In all cases, the donor is being compensated for safely donating renewable cells.   The flip side is also true.  Just as it is arbitrary to treat similar things differently, it is also arbitrary to treat solid organs such as kidneys like bone marrow.

I am skeptical if a Court will buy either of these arguments. If a Court goes full Lee Optical rational basis, this law will be upheld. If the Court gets an opinion similar to the casket case in Craigmiles, they have a shot. The equal protection argument seems weaker. Because these are not suspect classes, rational basis scrutiny also applies. Proving arbitrary government action is daunting. But IJ has one of the best track records of challenging the rational basis test, and I look forward to seeing their progress.

For the human element, definitely check out this IJ video:

[youtube=http://www.youtube.com/watch?v=GOO2kQZbqB0&feature=player_embedded#]

Close call in my opinion.

[youtube=http://www.youtube.com/watch?v=lYFKertw6sc&NR=1]

[youtube=http://www.youtube.com/watch?v=xy5JwYOlgvY&feature=player_embedded]

(H/T Lowell J.)

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LOL, check out this Cartman Remix:

[youtube=http://www.youtube.com/watch?v=MquuuXTkF7w]

From SSRN, Constitutional Solipsism: Toward a Thick Doctrine of Article III Duty; or Why the Federal Circuits’ Nonprecedential Status Rules are (Profoundly) Unconstitutional (H/T Legal Theory Blog). This articel addresses an important question. What happens when a Court’s practice is unconstitutional. Many argue the nonprecedential status rules of Circuit Courts are unconstitutional. This article explores this solipsism:

Constitutional Solipsism is the fourth in a series of articles on aspects of the private judging practices which have come to characterize the U.S. state and federal courts since the late 1950s. The first, Inequitable Injunctions: The Scandal of Private Judging in the U.S. Courts, 56 STAN. L. REV. 1435 (2004) gave a critical historical account of the development of the “practices of private judging” in U.S. Courts. Take a Letter, Your Honor: Outing the Judicial Epistemology of Hart v. Massanari, 62 WASH. & LEE L. REV. 1553 (2005), analyzed the development of a distinctive U.S. theory of precedent. Sorcerers, Not Apprentices: How Judicial Clerks and Staff Attorneys Impoverish U.S. Law, 39 ARIZ. ST. L.J. 1 (2007), documented the de facto delegation of the majority of Article III judicial power to inadequately supervised non-judicial actors, and the origins of nonprecedential status rules in the federal bench’s mistrust of the accuracy of the judging done in its name.

Constitutional Solipsism takes up the repeated suggestions by federal courts and organs of the Federal Judicial Conference that the circuits’ ubiquitous nonprecedential status rules are unconstitutional. Mapping, analyzing, and substantially supplementing scattered, thin, and inconclusive scholarly analyses, largely published in the wake of the decision in Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), vacated en banc as moot, 235 F.3d 1054 (8th Cir. 2000), it is the first comprehensive analysis of the constitutionality question. In addition to considering previously unexplored yet salient constitutional doctrine, including the “fundamental interests” jurisprudence articulating the constitutional right of access to the courts, and non-delegation doctrine, the Article departs from predecessor scholarship by considering the rules in the contexts that they justify and enable: the delegation of Article III power to inadequately supervised adjuncts, and the abbreviated adjudicatory processes that arguably deny plenary appeals to the majority of federal appellants, substituting an unsafe certiorari process for appeals as of right.

Relying principally on a critical reading of the leading inherent Article III power cases and authority on the powers “essential to the administration of justice,” and the constitutional logic of bodies of doctrine including fundamental interests and non-delegation doctrine, as well as on the limits on the circuits’ formal rulemaking power, Constitutional Solipsism concludes that the rules and the practices that underpin them are profoundly unconstitutional, because ultra vires Article III power. It goes on to argue both that the constitutional solipsism that characterizes the courts’ inherent power jurisprudence and their judging practices calls for a thick constitutionalist doctrine of judicial duty, and not just of power; and that the most recent developments in “post-9/11 constitutional” jurisprudence suggest the ripeness of such a doctrine.