All posts by C-K Editor

The purpose of the C-K Faculty Blog is to provide a forum that brings together all the rich intellectual contributions of the Chicago-Kent faculty and to encourage respectful and scholarly dialogue within the extended Chicago-Kent community, including faculty, students, alumni and colleagues at other law schools and universities. For questions or more information, contact the C-K Faculty Blog Editor by e-mail at facultyscholarship@kentlaw.iit.edu.

Arguments: Week of January 16, 2018

With only two argument days this week, the Court will hear argument in four, quite different cases with issues ranging from arcane civil procedure questions to whether a capital defendant’s lawyer can, in the hopes of avoiding a death sentence, effectively concede guilt against the defendant’s express objection.

The death penalty case is McCoy v. Louisiana, which the Court will hear on Wednesday, January 17, 2018.  The state of Louisiana tried McCoy in 2011 on three counts of first-degree murder for the 2008 murders of Christine and Willie Young – the mother and stepfather of McCoy’s estranged wife, Yolanda – and Gregory Colston, Yolanda’s son. McCoy maintained his innocence, but his lawyer conceded McCoy’s guilt in an unsuccessful attempt to prevent a death penalty sentence. The New York Times has an analysis of the case and its history.

The Washington Post also discusses the case, including quotes from Lawrence J. Fox, a visiting lecturer at Yale Law School who filed a brief on McCoy’s behalf. Fox notes that, “[t]he decision over whether to concede guilt at trial is ultimately the defendant’s to make. It goes to the very heart of the right to put on a defense — a right that personally belongs to the accused.” For similar reasons, the libertarian Cato Institute wrote in support of McCoy.

On Wednesday, the Court will also hear arguments in Encino Motorcars v. Navarro, which presents the question of whether service advisors at car dealerships are exempt from the Fair Labor Standards Act‘s overtime-pay requirements. Respondents sued the employer car dealership, seeking time-and-a-half overtime pay for working more than 40 hours per week. The FLSA exempts from its overtime requirements “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles.” 29 U.S.C. §213(b)(10)(A). The Ninth Circuit found Respondents non-exempt under a 2011 Department of Labor regulation. The Supreme Court vacated that decision, holding that the Department’s 2011 regulation should not control. The Ninth Circuit again found Respondents non-exempt on remand. The Ninth Circuit also acknowledged again that its holding conflicts with published decisions of the numerous courts, including the Supreme Court of Montana and the Fourth and Fifth Circuits. Bloomberg Law’s Big Law Business predicts that the case could be a harbinger of how the Court interprets exemptions in the future and may implicate some tensions among the Justices over deference to agencies.

On Tuesday, January 16, 2018, the Court will hear arguments for Dalmazzi v. United States and Hall v. Hall. In Dalmazzi (consolidated with Ortiz v. United States and Cox v. United States), the Court will consider whether a military judge is statutorily or constitutionally precluded from serving on a military Court of Criminal Appeals while  simultaneously serving an appointment to the United States Court of Military Commission Review.

Petitioner Nicole A. Dalmazzi was convicted by a military judge of wrongfully using Ecstasy, a Schedule I, controlled substance by. The US Air Force Court of Criminal Appeals (“CCA”) affirmed the findings and sentence of Dalmazzi’s dismissal and confinement for one month. Colonel Martin T. Mitchell participated as a judge on the CCA panel while also appointed as a judge to the United States Court of Military Commission Review (“CMCR”), a statutorily created entity that hears appeals from military commissions.

Dalmazzi moved the CCA to vacate the decisions in her case, on the grounds that Mitchell’s dual position on the CCA and the CMCR violated statutory and constitutional prohibitions on dual-officeholding, specifically 10 U.S.C. §973(b), a Civil War-era dual officership ban, and the Appointments Clause of Article II of the Constitution. Before the CCA ruled on that motion, Dalmazzi filed a petition for a grant of review with the Court of Appeals for the Armed Forces (“CAAF”). The CAAF vacated and then denied Dalmazzi’s petition for grant of review as moot; though Judge Mitchell had been confirmed to the CMCR by the Senate, President Obama did not sign his commission until after the CCA had issued its decision in Dalmazzi’s court-martial. Petitioners thus challenge Dalmazzi’s conviction and also ask the Court to consider whether the CAAF erred in finding the claim moot, arguing that §973(b) is triggered once a military officer “holds” or “exercises the functions of” a civil office; even though his commission was not yet signed by the President, he was still exercising the functions of a CMCR judgeship when the CCA sentenced Dalmazzi.

In addition to considering whether Judge Mitchell’s service on the CMCR disqualified him from continuing to serve on the CCA, the Court must also consider the threshold question of whether it has jurisdiction to review this type of case in the first place. The United States argues that while federal law does allow the Supreme Court to review decisions of the CAAF in certain situations, the governing statute, 28 U.S.C. §1259(3), only allows review of cases in which the CAAF grants a petition for review. Because the CAAF vacated its order granting review of Dalmazzi’s petition and then denied the petition for review as moot, the CAAF did not grant the petition for review and the the government argues that Court does not have jurisdiction to review the decision. Petitioners argue that this interpretation would allow the CAAF to insulate decision from review by the Supreme Court by simply vacating the grant of the review at the end of a decision.

The only amicus brief in this case was filed by Aditya Bamzai, a professor at the University of Virginia School of Law. He argues that the Supreme Court does not have jurisdiction to review decisions from the CAAF because, though called a “court” by statute, it is an entity of the Executive Branch; citing Marbury v. Madison, Bamzai argues that the Court does not have Article III appellate jurisdiction over a body of the Executive Branch. In a very unusual move, the Court granted Bamzai’s motion to participate in oral argument, and will allow him ten minutes to outline his position.

In its second case on Tuesday, Hall v. Hall, the Court will considers whether the holding in Gelboim v. Bank of America, a 2015 case concerning jurisdiction in multidistrict consolidated cases, should be applied in the same way to single-district consolidated cases. In Gelboim, the Court unanimously held that when a district court dismisses the only claim in a case that is consolidated with other actions for pretrial proceedings in multidistrict litigation, the dismissal acts as a final, appealable order, even if not all other claims in the multidistrict litigation had been resolved. Here, the Court must determine whether, in a single-district consolidated case, the entry of a final judgment in one case makes that case immediately appealable, even if other cases are still pending in the same district.

The dispute initially started when the elderly Ethlyn Hall, both in her individual capacity and as a trustee of her inter vivos trust,  filed suit against her son, Samuel Hall, who was acting as her attorney, after she became displeased with his management of property in the U.S. Virgin Islands. Ethlyn moved to Florida to live near her daughter Elsa. After Ethlyn died while the case was pending, Elsa took her place as plaintiff as the representative of Ethlyn’s estate. Samuel then filed suit against Elsa for a variety of causes of action, including intentional infliction of emotional distress allegedly caused by Elsa turning Ethlyn against him. The District Court of the Virgin Islands consolidated the cases pursuant to Federal Rule of Civil Procedure 42(a)(2), which allows the consolidation of cases with “common questions of law or fact.” A jury rejected the estate’s claims, and awarded Samuel $2 million dollars in compensatory and punitive damages against Elsa. The district court entered separate judgments for each action and ordered a new trial for Samuel’s claims against Elsa, after finding the jury might have relied on a legally untenable basis for its finding. When Elsa appealed the judgment regarding the estate’s claims against Samuel to the Third Circuit, the court dismissed her appeal, as a final judgment had not been entered in the retrial for Samuel’s case against her. The Third Circuit emphasized that the circuit does “not employ a bright line rule and instead consider[s] on a case-by-case basis whether a less-than-complete judgment is appealable.”

Elsa, the petitioner in this case, argues that the case-by-case approach employed by the Third Circuit is too uncertain and increases the risk of having an appeal dismissed as untimely if an appellant must wait until all other consolidated cases have been resolved. The petitioner also cites 28 U.S.C. §1291, which provides that a court of appeals “shall” have jurisdiction over a final judgment of a district court. Petitioner argues that this is mandatory language, and the Third Circuit erred in concluding it did not have jurisdiction because of the pending case.

Respondent Samuel argues that, because the cases were consolidated pursuant to Rule 42(a)(2), they should be considered substantively and procedurally unitary, and that the text of Rule 42(a) “indicates that fully consolidated actions formally become a single case.” As such, Samuel argues that fully consolidated cases should be treated the same way as multiple claim actions – “as a single ‘judicial unit’ appealable only when all claims are decided.”

This post was drafted by ISCOTUS Fellows Bridget Flynn and Elisabeth Hieber, both Chicago-Kent Class of 2019, and was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018. It was overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

Oral Arguments Review: Week of January 8, 2018

Last week’s Supreme Court arguments featured the Fourth Amendment, voting rights, and disputes between states over water. On Monday, the Court heard arguments about two Fourth Amendment cases involving vehicles. First, the Court heard Byrd v. United States in which the issue was whether, under the Fourth Amendment, the driver of a rental car whose name is not on the rental agreement but has permission of the renter has a reasonable expectation of privacy. Byrd argued that a rental car agreement is not determinative of the scope of a driver’s constitutional rights. And as the American Civil Liberties Union argues in an amicus brief it submitted with the National Association of Criminal Defense Lawyers, the government’s position that drivers unauthorized by the rental car companies have no Fourth Amendment rights would have a disproportionate effect on black and Hispanic drivers, who are more likely to rent cars than white people.  The New York Times reports on that brief and other arguments.

As The New York Times also reports, during oral argument, however, Justice Kennedy described how Byrd waited outside of the rental facility while his girlfriend signed the agreement. Justice Kennedy said that it seemed as though he didn’t want to have his name on the rental agreement even though it appeared as though he would be the only one driving the rental car.

In the other Fourth Amendment case, Collins v. Virginia, the Court was asked to consider the scope of the Fourth Amendment’s “automobile exception,” which allows a police officer to search a vehicle without first getting a warrant to do so if the evidence of criminal activity could be removed from the premises because of the vehicle’s mobility. Collins argued that the automobile exception should not apply when the vehicle is parked in the “curtilage,” nor area surrounding the home. Vice.com predicted that a win for Virginia in this case “could dramatically curtail the protections of the Fourth Amendment. And Reason.com notes, unsurprisingly, that “several justices seemed skeptical of Virginia’s reasoning.” The justices may not reach the underlying issue, however, Towards the end, the attorney representing Virginia admitted that the intermediate state appellate court decided the case on the grounds that there were exigent circumstances. In response, Justice Ginsburg said that the Virginia Supreme Court had not addressed this question, and so the Supreme Court might have to remand the case because they could not take on that issue.

In the first water rights case of the week, Texas v. New Mexico and Colorado, the Court heard oral arguments over a dispute about water allocation from the Elephant Butte Reservoir between Texas, and New Mexico and Colorado. Governed by the language of Rio Grande Compact, the states must adhere to the specific language of all signatories of the document, of which the federal government is not included. The specific issue before the Court had to do with whether the federal government can nonetheless intervene in the lawsuit.

National Public Radio affiliate KUNM broke down the history of this case and recounted this week’s oral argument. Aside from the question of federal intervention, this case has much history behind it; from Western water rights to “the role Reclamation plays in both Texas and New Mexico.” KUNM notes that the stake are high. New Mexico “has already spent $15 million on staff and legal fees. And if the Supreme Court decides in favor of Texas, New Mexico could owe a billion dollars or more in damages and be forced to curtail groundwater pumping…”

In its second water rights case of the week, the Court heard arguments in Florida v. Georgia. This case involves Florida suing the state of Georgia over their consumption of water in the Apalachicola-Chattahoochee-Flint basin. Florida argues that the Army Corps of Engineers, which controls several federal dams flowing into the basin, should allocate more water to Florida to assist freshwater fisherman in preventing droughts, thus hurting business.

The special master–appointed by the Supreme Court, tasked to study water allocation among the rivers that flow into the basin–concluded that Florida was hurt by not having enough water but did not have enough evidence to prove that water reallocation from Georgia would alleviate the issue. During oral arguments, the Washington Post reports, Justice Kagan seemed sympathetic to this conclusion this claim,  stating to the lawyer representing Florida that “there seems to be a real dearth of record evidence specifically quantifying how much more water you would have gotten, exactly what benefits would have followed from that.” On the other hand, Chief Justice Roberts commented that a ruling for Florida will help build a case as to why the state should be allocated more water. However, the looming question before the Court and both states is the gauntlet of federal statutes and congressional mandates that the Corps must obey to meet its obligations as the de facto managers of water allocation for the basin.

Finally, on Wednesday, the Court heard oral arguments in Husted v. A. Philip Randolph Institute, which addresses the merits of an Ohio law that removes voters from the rolls. We’ll cover that argument in more detail in a separate post.

This post was drafted by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, and was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018. It was overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

Conference Report: January 5, 2018 Conference

On Monday, the Supreme Court gave a death row inmate another chance to persuade the federal courts to consider whether his sentencing proceeding was infected with racial bias. The opinion in this case,  Tharpe v. Sellers, was issued as part of the Order List from the Court’s January 5, 2018 Conference. The Court did not otherwise add any new cases to its docket, although it did call for the views of the Solicitor General in three cases.

In Tharpe v. Sellers, a habeas corpus case, the Court remanded the case for further consideration of whether the petitioner is entitled to a certificate of appealability (COA). (Unlike most litigants, habeas petitioners who are challenging state court convictions or sentences can appeal only if they can make “a substantial showing of the denial of a constitutional right.”) As the ABA Journal reports, Keith Leroy Tharpe was convicted of the 1990 murder of Jaquelin Freeman during the commission of the kidnapping and rape of his estranged wife. He was sentenced to death in early 1991. According to the Washington Post, Tharpe was set to be executed in late September, but the Supreme Court issued a temporary stay based on a claim of racial bias by the jury. Monday’s opinion went further, citing a signed affidavit from seven years after Tharpe’s conviction in which a white juror made such statements as “there are two types of black people: 1. Black folks and 2. Niggers”; that Tharpe “wasn’t in the ‘good’ black folks category in my book, should get the electric chair for what he did”; and “[a]fter studying the Bible, I have wondered if black people even have souls.” The Court held that since the juror had never retracted the affidavit, there was a strong factual basis for the argument that Tharpe’s race affected the juror’s vote for the death penalty.

Justice Thomas dissented, joined by Justices Alito and Gorsuch. In the dissent, Justice Thomas questioned why the Court would engage in “this pointless exercise” stating that the remand will not stop Tharpe’s ultimate execution and instead only delays justice for Jaquelin Freeman. Justice Thomas noted  that the jury took only two hours to return a unanimous death sentence and pointed out that the juror in question signed a second affidavit in which he stated that he voted for the death penalty not because Tharpe was black, but because the evidence at trial justified the punishment and Tharpe showed no remorse. In addition, the second affidavit explained that the juror had been drinking when he signed the first affidavit and claimed that his statements had been taken out of context.

The majority and the dissent agree that it is unclear whether Tharpe will be able to clear the bar to receive a COA, despite the juror’s affidavit. But the majority still held that, based on the “unusual facts” of the case, the Eleventh Circuit should reconsider Tharpe’s request for a COA. CNN discusses the case here.

When the Supreme Court calls for the views of the Solicitor General (“CVSG”), the Court is requesting that the Solicitor General file an amicus brief to explain the United States’ view on whether the case deserves review. This most often happens in cases where, although the United States is not directly involved as a party, federal interests are significantly affected or the federal government possesses particular expertise. More information about CVSGs is available here.

In Dawson v. Steager, the question presented is whether the doctrine of intergovernmental tax immunity based on the precedent set in Davis v. Michigan Department of Treasury (1989) bars states from exempting groups of state retirees from state income tax while not exempting similarly situated federal retirees based on the source of their retirement income. The precedent set in Davis was that a state can tax federal employees’ income only “if the taxation does not discriminate against the officer or employee because of the source of the pay or compensation” – meaning that unless there is a significant difference between the state’s employees and federal employees, there can be no differentiation in tax exemption status.

In this case, James Dawson was a U.S. Marshal when he retired from the U.S. Marshal Service in 2008.  Under West Virginia law, Mr. Dawson should be able to exempt a portion of his retirement benefits from his state taxable income.  State law enforcement retirement recipients, however, are allowed to exempt all of the received benefits from their retirement plans from their taxable state income. The Dawsons have requested that the Supreme Court hear their case, and argue that West Virginia’s tax law discriminates against federal employees by favoring similarly situated state employees. The respondent in this case, State Tax Commissioner of West Virginia, Dale W. Steager, has argued that a Supreme Court review is unnecessary because the group of exempted state employees is so narrow that the state’s tax law does not discriminate against federal employees or provide state employees with a blanket exemption.

The question presented in Herrera v. Wyoming is whether Wyoming’s admission to the Union or the establishment of the Bighorn National Forest violated the Crow Tribe of Indians’ rights to hunt on the “unoccupied lands of the United States,” as established by federal treaty in 1868, thereby permitting the 2017 criminal conviction of a Crow member who engaged in subsistence hunting for his family.

In 1868, the Crow Tribe of Indians ceded to the United States most of their land (much of which was located in the present-day states of Wyoming and Montana) through the 1868 Treaty With The Crows. In exchange for the land, the 1868 Treaty created the Crow Indian Reservation along what is now Montana’s southern border and provided for payments, goods, and federal protection of the Crow Tribe members and remaining lands. Additionally, the 1868 Treaty provided that the Crow Tribe would have the right to “hunt on the unoccupied lands of the United States so long as game may be found thereon, and as long as peace subsists [. . .] on the borders of the hunting districts.” In 1890, Wyoming became a state.  In 1891, Congress enacted the “Forest Reserve Act” which created the framework for the establishment of the National Forests. This Act provided that “nothing in this act shall change, repeal, or modify any agreements or treaties made with any Indian tribes.”  In 1897, the Bighorn National Forest was created adjacent to the Crow Reservation on the Wyoming side of Montana’s southern border.

In 2014, Petitioner Clayvin Herrera and other members of the Crow Tribe were hunting on the Crow Reservation. While following a small herd of elk, the group crossed into the Bighorn National Forest. The group shot three elk and returned to the reservation with their kill. Mr. Herrera was subsequently tried and convicted of two crimes under Wyoming law for the unlawful hunting of elk in the National Forest. Mr. Herrera was prohibited from asserting the treaty right as a bar to prosecution, a decision which was affirmed by a Wyoming appellate court. These decisions were based on a 10th Circuit case from 1995, Crow Tribe of Indians v. Repsis, in which the court held that the “Tribe’s right to hunt reserved in the Treaty with the Crows, 1868, was repealed by the act admitting Wyoming into the Union.” 73 F.3d 982, 992 (10th Cir. 1995). The court continued by saying that the Creation of the Bighorn National Forest in 1897 “resulted in the ‘occupation’ of the land” and therefore also invalidated the Crow Tribe’s off-reservation hunting rights from the 1868 Treaty.

Mr. Herrera argues that Repsis was incorrectly decided by the Tenth Circuit, and that his rights – and the rights of other Native Americans who are bound by similar language in treaties with their tribes – were not abrogated either by the admission of Wyoming into the Union or by the creation of Bighorn National Forest. Wyoming, the respondent, asserts that the real issue is whether the doctrine of collateral estoppel, on which the lower courts relied, precludes Mr. Herrera from relitigating the Crow Tribe’s hunting rights within Wyoming. Wyoming also argues that the 1868 Treaty expired by its own accord and is in no way being abrogated by the State of Wyoming. Finally, Wyoming contends that the language in the 1868 Treaty is not widely replicated in other treaties with Native American tribes, so any decision will have limited precedential value.

The question presented in Fourth Estate Public Benefit Corp. v. Wall-Street.com is whether a copyright claim has been registered, within the meaning of 17 U.S.C. §411(a), when the copyright holder delivers the required application, deposit and fee to the Copyright Office, as the Fifth and Ninth Circuits have held; or if registration is made only once the Copyright Office acts on that application, as the Tenth and Eleventh Circuits have held.

Fourth Estate, an independent news organization, owns the copyrights to its journalists’ works and licenses them to AHN Feed Syndicate, a cloud-based news organization. AHN then takes the journalism from Fourth Estate and other content producers and licenses it to others. Wall-Street.com was a former licensee of AHN Feed Syndicate’s. Under the terms of the license, if Wall-Street canceled its account with AHN, it was to permanently remove and stop display of all AHN-provided content. However, after canceling it’s account with AHN, Wall-Street continued to distribute and copy 244 of Fourth Estate’s Works. Fourth Estate, which lost in the lower courts, argues that the Supreme Court should grant review to resolve the circuit split regarding when a copyright registration has been made; and further argues that this is a recurring question in most copyright infringement cases. Wall-Street contends that review is unwarranted both because Fourth Estate overstates the importance of the question presented, and because the 11th Circuit’s interpretation of 17 U.S.C §411(a) is correct – an infringement claim can only be made “once registration ‘has been made’ or ‘refused.’”

This post was drafted by ISCOTUS Fellow Eva Dickey, Chicago-Kent Class of 2020, and edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018. It was overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

Arguments: Week of January 8, 2018

The Court begins 2018 with a full schedule of oral arguments on Monday, Tuesday, and Wednesday of next week. Among the most interesting arguments are an important voting rights case and two cases about Fourth Amendment searches involving vehicles.

The Fourth Amendment cases will both be argued on Tuesday. In Byrd v. United States, the Court will consider whether a driver has a reasonable expectation of privacy in a rental car when he has the permission of the renter to drive the car but is not listed as an authorized driver on the rental agreement. More specifically, the question is whether the driver can even claim that his Fourth Amendment rights were violated, based on a doctrine sometimes referred to as “Fourth Amendment standing.” Orin Kerr provides some background on the doctrine and suggests that perhaps the driver’s motives should be relevant:

If we take the fundamental issue to be whether the car was in a practical sense Byrd’s car, then I get different instincts depending on what Byrd was thinking. For example, if Byrd just happened to have borrowed Reed’s rental car, and it just never occurred to him whether the rental car company allowed that, then I can see the car as effectively Byrd’s and it makes sense that Byrd has standing. On the other hand, if Byrd persuaded Reed to rent the car for Byrd because he knew the rental car company wouldn’t rent to him given his criminal record, then it seems weird to see the car as effectively Byrd’s and quite odd to say he has standing.

Also on Tuesday, the Court will hear about the scope of “automobile exception” to the Fourth Amendment right to be protected against unreasonable searches and seizures . Under this exception, as the Court explained in Maryland v. Dyson, if “a car is readily mobile and probable cause exists that it contains contraband, the Fourth Amendment … permits the police to search the vehicle without” a warrant.  The issue in Collins v. Virginia is whether this exception allows a police officer who is not invited and does not have a warrant, to enter private property and search a vehicle that is parked a few feet from the house. Officers were trying to find a motorcycle driver who had been involved in two high speed chases, and were not able to identify the driver visually because his helmet, and ran into Collins at the DMV a few months after the incidents in question. Suspecting Collins, the officers located his residence and saw a motorcycle covered in a tarp parked behind a car on his driveway. One of the officers then entered Collins’ property, without permission or a warrant, removed the tarp, and ran the licence plate of the motorcycle. It was flagged as stolen, so the officer arrested Collins for receiving stolen goods. Collins argues that the trespass was an unconstitutional search, but Virginia Supreme Court held that the officer’s conduct was lawful. A brief submitted by the United States Justice Foundation in support of Collins argues that the automobile exception did not apply to the facts in this case because the officer had no reason to believe that the motorcycle was stolen when he trespassed onto the property. However, Virginia claims that the motorcycle was “readily mobile, parked in a driveway with easy access to the street” and therefore the automobile exception should still apply in this case. Cornell Law Professor Sherry Colb discusses the law — and the odd facts — of the case here.

On Wednesday the Court will hear Husted v. Randolph Institute, which addresses the legality an Ohio law that purges voters from the voting polls if they do not confirm their address. The law allows the Ohio Secretary of State to send postcards to voters who have not voted within the past two years, asking them to confirm their address. The Secretary of State may purge a voter from the list if that voter fails to fill out of the postcard and send it back. The A. Philip Randolph Institute – named after the civil rights activist – among other groups like the ACLU and the Brennan Center for Justice, argues that the Ohio law violates the National Voting Rights Act (NVRA) and the Help America Vote Act (HAVA). Specifically, the NVRA states that an individual may not be removed as a voter “by reason of the person’s failure to vote.” Ohio argues that it is not purging voters because they aren’t voting, but because they aren’t filling out the postcards to indicate their address. The Economist highlights the issues in the case and notes that until the Trump Administration, the Department of Justice (DOJ) agreed with the challengers’ position on how to interpret the statutes at issue. Greg Stohr of Bloomberg showcased one Ohio voter, Larry Hammond, who deliberately chose not to vote in some elections but did not intend to give up his right to vote. Hammond intentionally sat out the 2012 and 2014 elections, but when he wanted to vote on a 2015 ballot measure on marijuana legalization, he discovered he had been purged from the voting rolls.

On Monday, the Court will hear arguments in two cases involving disputes between States over water rights, Texas v. New Mexico and Colorado and Florida v. Georgia. Because the cases involve litigation between states, the Court has original jurisdiction. As a practical matter, as Stephen Wermiel explained on SCOTUSblog, original cases are referred to a special master, who holds a trial and writes a report to the Court. In Texas v. New Mexico the Court will hear oral arguments on the first of two water rights cases. The Court then essentially hears an appeal from that report. The water rights cases tend to be complex and technical. SCOTUSblog summarizes the issues in Texas v. New Mexico and Colorado here and in Florida v. Georgia here.

This post was drafted by ISCOTUS Fellows Zoe Arthurson-McColl and Michael Halpin, both Chicago-Kent Class of 2020, and edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018. It was overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

Justice Marshall and Judge Mikva: Justice Kagan Reminisces

Justice Elena Kagan clerked for two legal legends after she graduated from law school, First, she clerked for Judge Abner Mikva of the United States Court of Appeals for the District of Columbia, and she then went on to clerk for Justice Thurgood Marshall on the United States Supreme Court. During her visit to Chicago-Kent College of Law in October, Justice Kagan talked about those experiences. She noted that Judge Mikva worked in top positions in all three branches of government — before he was a judge, he was a Member of Congress from the Chicago area and he went on to be White House Counsel during the Clinton Administration. Clerking for Judge Mikva. Because of Judge Mikva’s “subtle and penetrating understanding” about government, Kagan herself became “very intrigued by” government and the way it operates. Moreover, she was exposed to fascinating cases because on the D.C. Circuit, where Mikva sat, “the most important cases are about the way government operates.” Personally, Justice Kagan continued, Judge Mikva, was “a wonderful human being” who taught her about the importance of finding good mentors, and she has tried to be a good mentor herself.

When Justice Kagan discussed her time clerking for Justice Marshall, she called him the “the greatest lawyer of the 20th century.” She described him as “just an extraordinary lawyer,” who “decade in and decade out” worked to advance justice. Justice Kagan not only sang his praises in the legal arena but also highlighted his incredible storytelling ability — he could “make you laugh [and] make you cry” in the same story. Justice Kagan noted that she clerked for Justice Marshall toward the end of his career when he was taking stock of his time on the Court which added to it being “an extraordinary experience.” It gave her a “window into some of the most important parts of twentieth century history.”

Justice Kagan has written and spoken about her time with Justice Marshall elsewhere as well. Marshall nicknamed Justice Kagan (who is 5’3”) “Shorty” and “Little Bits.” Marshall stood at 6’2”. Marshall also once called Justice Kagan a “knucklehead,” (a term he frequently called his clerks) when he tasked her with writing a dissent and she told him it would be difficult to find a legal basis to find in favor of the party that he wanted to support.

At the time of Kagan’s clerkship in 1988, the Supreme Court, under Chief Justice Rehnquist’s leadership, was becoming increasingly conservative, so Marshall was “looking for really bright people to kind of put a new charge in him” Marshall biographer Juan Williams was quoted as saying in the New York Times. But that did not mean that Justice Kagan was a clone of Justice Marshall. Indeed, during her 2009 Solicitor General confirmation hearing and later in her 2010 Supreme Court confirmation hearings, Justice Kagan explained that the writings she produced for Marshall reflected her efforts “channel” Justice Marshall. In the latter hearings, she said:

“When I was clerking for Justice Marshall, I was 27 years old, and Justice Marshall was an 80-year-old icon, a lion of the law. … The role of the clerks was to channel Justice Marshall to try to figure out whether Justice Marshall would want to take a case, whether Justice Marshall would think that the case is an appropriate one, and that’s what I did.…I love Justice Marshall; he did an enormous amount for me. If you confirm me you will get Justice Kagan.”

This post was drafted by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018. It was overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

The End of Miller’s Time?

By Michael Gentithes, Visiting Assistant Professor, Chicago-Kent College of Law.

The smartphones we carry in our pockets radically simplify our lives, reducing hour-long tasks to seconds and eliminating the need to separately carry a camera, map, book, and audio player. But should they also enable the government to access months of records of everywhere someone went while carrying a phone?

The Supreme Court recently considered that question when it heard oral arguments in the much-anticipated case of Carpenter v. United States. Specifically at issue was the government’s warrantless collection, for 127 days, of a robbery suspect’s “cell site location information”—data showing which cell phone tower the suspect’s phone accessed at particular times, and hence roughly where the suspect was. A bigger principle was also at issue: the claim that when we reveal information about ourselves to third party service providers, we relinquish any expectation that the information is private and will not be accessible to government investigators. That principle, known as the “third-party doctrine,” previously led the Court to permit the warrantless collection of the numbers we dial in our phones (Smith v. Maryland (1979)) and the financial information we disclose to a bank (United States v. Miller (1976)). The question Carpenter asks is whether that doctrine extends to the networked world, and to the government’s collection of data we routinely reveal to technological third parties about our location, shopping preferences, reading habits, and more.

That question matters. Though some might be untroubled by massive data dragnets because they feel they have nothing to hide, concerns about the information we reveal to third parties today extends to more than just embarrassing facts. The complete details of our daily thoughts and actions might be accessible to any government agent willing to look. By creating additional copies of that information, the government generates added opportunities for hackers—or internal whistleblowers—to access and publicize it. That possibility should startle the guilty and innocent alike.

During the Carpenter oral arguments, many of the Justices appeared sympathetic to such privacy concerns. But they failed to coalesce around a guiding principle. Though they acknowledged the limitations of third-party doctrine—which does not extend to medical information provided to one’s doctor, for instance, or the words a suspect says on the phone after dialing a number—they struggled to explain why that data receives Fourth Amendment protection while dialed phone numbers and financial records do not. And without such an articulable guiding principle, it seems arbitrary to place location data derived from cell phone towers in either the protected or unprotected category.

Squaring that circle is a difficult challenge the Justices should not sidestep. Fourth Amendment jurisprudence has been ridiculed as little more than nine people’s rudderless assumptions about the privacy citizens actually and appropriately expect. The Justices should state a principled basis upon which to classify location information—and the slew of other data points modern citizens reveal to third parties—as protected or unprotected. Doing so will require the Justices to acknowledge that informational privacy is a messy, non-binary continuum. Most data points fall somewhere between the wholly private contents of a conversation and the entirely unprotected numbers dialed to arrange it. Data points about our locations in public are one example. Though largely unprotected, locational data conveys some minimal amount of meaning, such that even if a citizen does not harbor a great enough expectation of privacy in each individual data point to render collection of that datum a search, she might have a great enough expectation of privacy in months of aggregated locational data to trigger the Fourth Amendment.

Enunciating such a rule may require reconsideration of previous holdings, especially those claiming that sensitive financial information disclosed to a bank is wholly unprotected. It might also require the Justices to acknowledge that Fourth Amendment jurisprudence is necessarily tentative, and that just as those holdings need revision, their holding in Carpenter may be reconsidered when new technology, and new cases, emerge. But such an acknowledgement simply makes explicit what was already inherent in the common-law-style decisions applying the Fourth Amendment to the modern world. And a genuine effort to craft such a tentative rule will both enhance the public’s security and its regard for the Court.

Do the Justices Look More Favorably on Gun Regulation than Many Fear?

By Cody Jacobs, Visiting Assistant Professor, Chicago-Kent College of Law.

Last Monday, the Supreme Court denied certiorari in Kolbe v. Hogan, a Second Amendment challenge to Maryland’s ban on assault weapons and large capacity ammunition magazines. As a result, the Fourth Circuit’s decision upholding the ban was left in place. The Court’s denial is notable because it continues a pattern: after holding that the Second Amendment protects an individual right to keep and bear arms in a pair of cases in 2008 (District of Columbia v. Heller) and 2010 (McDonald v. City of Chicago), the Court has not granted cert in any major Second Amendment case since then despite having numerous opportunities to do so. Unraveling the mystery of why that is may have major implications for the future of Second Amendment litigation.

Kolbe seemed like a particularly plausible vehicle for a cert grant. Although there is no circuit split on the issue—the four federal courts of appeal that have heard Second Amendment challenges to assault weapons bans have upheld them—the Fourth Circuit’s decision upholding Maryland’s law in Kolbe was a little different than the previous decisions. The Fourth Circuit didn’t just uphold Maryland’s law, it held that assault weapons and large capacity ammunition magazines are not protected by the Second Amendment at all. In contrast, the other courts that upheld these bans concluded that such weapons were protected by the Second Amendment, but that the bans could nevertheless survive because of the strong public safety justifications behind them. Thus, Kolbe represented a relatively minimalist reading of Second Amendment rights that would presumably have been more likely to attract the Supreme Court’s attention.

On the other hand, the denial in Kolbe is not that surprising in light of the Court’s history of denying cert in these cases. According to a report from the Giffords Law Center to Prevent Gun Violence, the Court has denied cert in over 70 Second Amendment cases since 2008. This number includes several denials in cases involving perhaps the most litigated Second Amendment issue, the right to carry guns outside the home. Several states have requirements that applicants for concealed carry permits demonstrate a “good reason” that they need such a permit before one may be granted. Gun rights advocates have challenged these laws almost everywhere they exist and, with the exception of a successful challenge in the District of Columbia (discussed below), all of these challenges have been rejected by the courts of appeals and the Supreme Court has refused to grant cert.

This trend—which has resulted in most Second Amendment challenges to gun laws failing—has not gone unnoticed by the Court’s more conservative Justices. For the first five years after McDonald, these denials came without noted dissent. That changed when the Court denied cert in a 2015 case challenging a San Francisco ordinance requiring guns to be locked up when not in use. Justice Thomas, joined by Justice Scalia, dissented from the Court’s refusal to grant cert. That same year, Justice Thomas, again joined by Justice Scalia, dissented from the Court’s refusal to grant cert in a case challenging a city’s assault weapons ban. And just this summer, Justice Thomas, this time joined by Justice Gorsuch, dissented from the Court’s denial of cert in a case upholding California’s “good reason” requirement for concealed carry permits. In that dissent, Justice Thomas complained that the Court’s “decision to deny certiorari in this case reflects a distressing trend: the treatment of the Second Amendment as a disfavored right” and decried the “inexcusable” discrepancy between cases involving other rights, which the Court hears routinely, and cases involving the Second Amendment, which have not been heard in the Court since McDonald.

“Inexcusable” or not, this trend certainly is not what either side expected to happen in the immediate aftermath of Heller and McDonald seven years ago. So, what does it mean? (Of course, any attempt to read tea leaves from cert denials necessarily comes with all the usual caveats—the Court has repeatedly reminded us that a cert decision is not a decision on the merits.)

Let’s start with what we know. We know that at least two Justices voted to grant cert in some of these cases. It also seems relatively safe to assume that none of the four “liberal” Justices voted to grant cert, likely because they were happy with the results in the lower courts. The question, then, is why didn’t Justice Alito, Justice Kennedy, or Chief Justice Roberts vote to grant cert in any of these cases? All three of them voted with the majority in Heller and McDonald, and Justice Alito actually wrote the controlling opinion in the latter. It is possible that one of them could have voted to grant cert in these cases and for whatever reason choose not to dissent, but, none of them appear to agree with Justice Thomas that the repeated denials are particularly problematic.

The politics around the gun debate has changed significantly since 2010. Even though there has been no policy change at the national level, the political will for greater restrictions on guns surged in response to the Sandy Hook shooting in 2012 and has led to a wave of new gun laws, particularly in blue states. In fact, the law at issue in Kolbe itself was passed in direct response to Sandy Hook. It isn’t a stretch to imagine that the rapid killing of 20 six and seven-year-old children that had such a powerful impact outside the Court might have had an impact inside it as well.

If some of the Justices that formed the majority that recognized an individual Second Amendment right are now having second thoughts, or at least feeling amenable to a narrow reading of that right, that would have major implications for litigation strategy in Second Amendment cases. The few times that gun laws have been struck down by federal courts on Second Amendment grounds, state and local governments have declined to appeal those rulings, likely fearing that they would lose in the Supreme Court and roll back similar gun laws nationally. This happened just recently when the District of Columbia’s “good reason” concealed carry requirement was struck down by the DC Circuit. DC officials decided not to seek cert even though the decision created a circuit split because they were concerned that an unfavorable ruling from the Supreme Court would put similar laws around the country in jeopardy.

However, this caution may not be warranted and may even be counterproductive. The Court’s refusal to grant cert in case after case upholding a wide range of gun laws may show that a majority of the Court at least has serious doubts that these laws violate the Second Amendment. But that majority may not last with President Trump explicitly promising to fill any vacancies that arise during his term with pro-gun justices. The next time a gun law is struck down on Second Amendment grounds, perhaps the state or local government defending that law should seek cert and force those Justices who may be wavering behind the scenes to lay their cards on the table.

Prior to coming to Chicago-Kent, Professor Jacobs was a Staff Attorney at the Law Center to Prevent Gun Violence. His scholarship focuses on the Second Amendment and gun policy.

Arguments: Week of December 4, 2017

The Court will hear arguments in five cases this coming week, including the blockbuster case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, which will be argued on Tuesday, December 6. (People were already lining up to see this oral argument on Friday.) Masterpiece Cakeshop involves a Colorado bakery that refused to sell a wedding cake to Charlie Craig and David Mullins in 2012, because of the bakery owner’s sincerely-held religious objection to same-sex marriage. Craig and Mullins filed charges of discrimination with the Colorado Civil Rights Division, alleging that the refusal was a form of sexual orientation discrimination prohibited by the Colorado Anti-Discrimination Act (CADA). The Colorado Civil Rights Commission found that the refusal was prohibited discrimination and issued Phillips an order requiring that Masterpiece Cakeshop alter company policy to comply with CADA. Philips contends that CADA, by compelling him to create expression that violates his sincerely held religious beliefs about marriage, violates the both the free speech and free exercise provisions of the First Amendment. Earlier this year, SCOTUSblog hosted a symposium on Masterpiece Cakeshop, featuring commentary from advocates and legal scholars arguing for both sides of the case. More recently, commentators from both the left and the right continue to weigh in.

On Monday, December 4, the Court will hear oral arguments in an important federalism case, Christie v. National Collegiate Athletic Association. Christie analyzes whether the Professional and Amateur Sports Protection Act (“PASPA”), a federal statute that prohibits modification or repeal of state-law prohibitions on sports gambling, unconstitutionally commandeers the regulatory power of states, in violation of the Tenth Amendment. The New Jersey legislature partially repealed certain prohibitions on sports gambling, in 2014. Five sports leagues (the NCAA, the NFL, the NBA, the NHL, and the MLB) collectively sued, arguing that the repeal violates PASPA, while the New Jersey parties (including New Jersey Governor Chris Christie) argue that PASPA  (in the language of key federalism precedents New York v. United States and Printz v. United States) unconstitutionally “commandeers” the state regulatory scheme for overseeing sports gambling. The Washington Post and Sports Illustrated both explore the implications of the case.

Also on Monday, the Court will hear arguments in Rubin v. Islamic Republic of Iran. Rubin concerns foreign sovereign immunity where a foreign country is a state sponsor of terrorism. Plaintiffs, eight American victims injured in a terror attack in Jerusalem in 1997, sued Iran under section 1610(g) of the Foreign Sovereign Immunities Act (FSIA) and received a $71.5 million dollar default judgment against the state of Iran. FSIA creates several exceptions to the general rule stipulating that foreign states cannot be sued in U.S. courts, one of which is the “terrorism exception,” allowing private citizens to sue foreign states determined to be sponsors of terrorism. The plaintiffs argue that, to collect on their judgment, the FSIA allows them to attach and execute four collections of ancient Persian artifacts in possession of the University of Chicago and Chicago’s Field Museum of Natural History. The Seventh Circuit, however, agreed with the arguments of the Islamic Republic of Iran, joined by the Field Museum and the University of Chicago, and concluded that the FSIA did not authorize the plaintiffs’ action.

On Wednesday, December 6, the Court will hear arguments for Murphy v. Smith and Marinello v. United States. Murphy considers a provision of the Prison Litigation Reform Act which requires that, when a monetary judgment is awarded to a plaintiff in a prisoner’s civil rights suit, a portion of that judgment “not to exceed 25 percentshall be applied to pay for attorney’s fees awarded against the defendant. The district court interpreted this to mean that it had discretion to decide what percentage of the damages should be reserved, and ordered that 10 percent of the damages be put towards the fees. The Seventh Circuit reversed, following its precedent that the statute did not grant the district court discretion to reduce the maximum percentage of damages to be reserved, and instead holding that 25 percent of the damages awarded to the appellant, a former inmate who prevailed in a civil rights and state tort suit against correctional officers, should be directed to pay for the fees. (Disclosure: ISCOTUS Co-Director Carolyn Shapiro participated in a moot to help prepare respondent’s counsel for argument.)

Marinello is a case from the Second Circuit involving section 7212(a) of the Internal Revenue Code, criminally penalizing a defendant who “in any other way corruptly. . . obstructs or impedes, or endeavors to obstruct or impede the due administration of” the tax code. The defendant, Carlo J. Marinello, was found guilty of nine counts of tax-related offenses, including a violation of §7212(a). He asserts that the government was required to establish that there was a pending IRS action against him, and that he had knowledge of that action as part of its burden of proof in securing a conviction. The district court denied that Marinello’s motion for acquittal on this point, which the Second Circuit affirmed.

This post was drafted by ISCOTUS Fellow Elisabeth Hieber, Chicago-Kent Class of 2019, edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and overseen by ISCOTUS Co-Director, Chicago-Kent Professor Carolyn Shapiro.

Oral Arguments Review: Week of November 27

On Wednesday, the Court heard oral arguments in one of the most controversial cases of this term: Carpenter v. U.S. In Carpenter, the justices heard arguments on a Fourth Amendment issue asking whether people have a reasonable expectation of privacy when they relinquish specific information to a third party. In this case, the information is metadata about someone’s location generated when he uses his cellphone. In an unusual turn of events, oral argument on Carpenter lasted 20 minutes longer than the usual hour per argument session. By the end of the rancorous session, there was little consensuses on where a majority of the justices stood on how they would extend the government’s ability to acquire such records.

Timothy Ivory Carpenter was convicted for his participation in a number of robberies over a period of several months in the Detroit area. The government used data collected through his cell phone usage in proximity to cell towers—obtaining it without a warrant through Carpenter’s cellular provider—as evidence to convict him. Carpenter argues that the means by which the government acquired those records was a violation of his Fourth Amendment right against unreasonable searches and seizures.

Several justices, including Justice Alito, inquired about how to approach the issue stating, “[t]his new technology is raising very serious privacy concerns.” Justice Sotomayor equated the government using phone records to track an American’s location to “Big Brother,” and commented that many people, including youth, are attached to their phones, like an extra appendage. Justice Roberts made a point regarding the nature of cellphone usage in the modern age and how difficult it is to conceive that most voluntarily elect to relinquish data on their location.

Two of the Court’s Fourth Amendment precedents figured prominently in the argument. In Smith v. Maryland, the Court decided that people do not have a reasonable expectation of privacy when dialing a number using a landline, although they do have such an expectation in the contents of the call. And in U.S. v. Miller, the Court held that there is no reasonable expectation of privacy when the government subpoenas a bank for an individual’s financial records because those records contain information that the individual voluntarily disclosed to a third party and that the third party retained for its own business reasons. But the Court also has recently decided two cases involving new technology and the Fourth Amendment: Riley v. California, which held that the police cannot search the contents of an arrestee’s phone without a warrant, despite the analogy to a wallet, which they can search; and United State v. Jones, which held that installing a GPS device on a vehicle was a search within the meaning of the Fourth Amendment.

Although many Justices appeared concerned about the privacy interests at stake in Carpenter, they did not appear to have settled on a single approach to this question of new technology and the Fourth Amendment. As The Daily Caller’s Kevin Daley stated, “[t]hough a majority of the Court appeared willing to extend protections to a user’s location data, the justices fractured as to how meaningful those protections might be, as well as the legal rationale on which they should rely.” Dahlia Lithwick of Slate also reports on the argument, including on Justice Gorsuch’s property-based theory about why the Fourth Amendment should apply to the location data.

The Court also heard oral arguments in Cyan Inc. v. Beaver City Employees Retirement Fund, which addresses whether state courts lack subject matter jurisdiction over covered class actions regarding the 1933 Securities Act. The petitioner argues that the law bars concurrent jurisdiction over all “covered class actions,” and the respondent argues that it bars “mixed” state- and-federal law actions. The Justices exhibited some frustration at the way Congress wrote the law. Justices Alito and Gorsuch, for example, called the statutory language “gibberish,” while Justice Ginsburg called it “obtuse.” The argument also featured two particularly experienced Supreme Court advocates. Neal Katyal, who was Acting Solicitor General under President Obama, represented the petitioners in his 35th Supreme Court argument, breaking the record set by Thurgood Marshall for the most oral arguments presented by a lawyer of color. And Tom Goldstein, publisher of Scotusblog.com, argued for respondents.

On Tuesday, the Court also heard oral arguments in Digital Realty Trust v. Somers, a financial whistleblowing case within the purview of an anti-retaliation provision in the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. Paul Somers, an ex-employee of Digital Realty Trust (DRT), a real estate investment trust, told upper-management that his direct supervisor had eliminated internal controls of certain operations in violation of the Sarbanes-Oxley Act of 2002. That Act has a statute of limitations of just 180 days, so after several months Somers filed a suit against his former employer under the Dodd-Frank Act for disclosing the information. DRT argues that the law only protects whistleblowers who report wrongdoing to the Securities and Exchange Commission (SEC); not those who report wrongdoing internally.

Finally, the Court heard oral arguments in two intellectual property cases. In Oil States Energy Services v. Greene’s Energy Group, the petitioner, Oil States, argues that Congress violated Article III of the Constitution and the Seventh Amendment when it authorized the Patent and Trademark Office to invalidate their patent, on behalf of Greene’s Energy, without a jury trial. In the other patent case, SAS Institute Inc. v. Matal, the Court heard arguments on whether the Patent Trial and Appellate Board is required to issue final written decisions on patentability to all petitions involved, or if the Board may grant a written decision to only some petitions.

This post was drafted by ISCOTUS Fellow Michael Halpin, Chicago-Kent Class of 2020, edited by ISCOTUS Editorial Coordinator, Anna Jirschele, Chicago-Kent Class of 2018, and overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

Supreme Court Adds E-Filing

On Monday, November 13, the Supreme Court’s new electronic filing system became operational, fulfilling a commitment Chief Justice Roberts had made back in 2014.  In his 2014 Year-End Report of the Federal Judiciary, Chief Justice Roberts focused on information technology.  In the report, the Chief Justice described how the Court has used technology, from the pneumatic tubes of the mid-20th century that allowed journalists to transmit opinions from the courtroom to their colleagues in the press room downstairs, to the more recent advent of computer-assisted legal research.  He then moved on to electronic filing, describing the federal courts’ CM/ECF(Case Management and Electronic Case Filing) and PACER (Public Access to Court Electronic Records) systems, which the federal courts began using in 2001, as vital to making the court system more accessible and affordable to litigants. Chief Justice Roberts added that the Supreme Court was developing its own electronic filing system, while cautioning that the Court would move slowly when adopting information technologies.

The Supreme Court’s new system largely tracks the Chief Justice’s 2014 description, and it has received good reviews.  For now, all parties will continue to submit all filings on paper; however, the Court will require all parties who are represented by counsel to file their submissions electronically as well. The documents will be available free of charge on the Court’s website, which distinguishes this system from the PACER system. PACER, which charges $0.10 per page up to $3 per document, has come under criticism for making public documents harder to access and for making academic research on the courts more costly, as The Washington Post explains. At least two lawsuits have been filed challenging those fees.

This post was drafted by ISCOTUS Fellow Eva Dickey, Chicago-Kent Class of 2020, edited by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director and Chicago-Kent Professor Carolyn Shapiro.