The Supreme Court heard oral argument in two cases on Wednesday. I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. Studies have shown that the advocate who receives more questions during oral argument is more likely to lose. For more about this method, see my post on last Term’s Aereo case.

Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc. asks whether a district court’s factual finding in support of its construction of a patent claim term may be reviewed de novo, as the Federal Circuit requires, or only for clear error, as Federal Rule of Civil Procedure 52(a) requires.

The Petitioner Teva argued that Federal Rule of Civil Procedure 52(a) applies and the Federal Circuit must apply a deferential clear error standard of review to the district court’s findings of facts that underlie its claim construction of the patent. The Respondent Sandoz argued that de novo review applied because of the Supreme Court’s Markman decision. The Solicitor General, supporting neither party, argued that Rule 52(a) applies to any subsidiary factual findings related to claim construction, such as to the underlying science related to the invention. But the SG also argued that applying the clear-error standard would not likely alter the Federal Circuit’s conclusion that the patent was indefinite and that, ultimately, the Supreme Court should remand the case back to the Federal Circuit to consider the correct standard. In a footnote in its brief, the SG even conceded its approach might make any later ruling on remand irrelevant if it occurs after Teva’s patent expiration in September 2015.

My prediction is that the Supreme Court will reverse the Federal Circuit decision insofar as it failed to apply a clear error standard under Rule 52(a) to any factual findings related to the claim construction below. The Respondent Sandoz received 40 questions, 7 more than the Petitioner Teva. The differential suggests a win for Teva, at least in some respect.

The SG’s more nuanced position makes it more difficult to predict the entirety of the Supreme Court’s ruling. The SG, which received 12 questions in 10 minutes, agreed that Rule 52(a) should apply to subsidiary factual findings, but had a much different take on the merits of Teva’s patent and how the case should proceed on remand. In past cases, the Supreme Court has tended to side with the SG’s positions. In this case, though, I think the Court is unlikely to find appealing the possibility of a remand that could be mooted by the expiration of Teva’s patent. So, looking beyond simply the number of questions during oral argument, I predict that the Supreme Court will resolve the case and issue of the definiteness of the patent applying Rule 52(a) to the district court’s factual findings, instead of remanding that determination for the Federal Court. Whether or not the Supreme Court will find Teva’s patent claim definite is harder to predict. All I can say is that it should help Teva’s side, at least modestly, to have a Rule 52(a) standard of review.

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The second case, Jennings v. Stephens, asks whether the Fifth Circuit erred in holding that a federal habeas petitioner who prevailed in the district court on an ineffective assistance of counsel claim must file a separate notice of appeal and motion for a certificate of appealability to raise an allegation of deficient performance that the district court rejected, even though the Fifth Circuit acquired jurisdiction over the entire claim as a result of the respondent’s appeal.

My prediction is that the Court will side with the Respondent Stephens’ position (i.e., that the Fifth Circuit correctly decided the case). This case is easier to predict. The Petitioner Jennings received 14 more questions than the Respondent Stephens, which is a fairly large differential in questioning that suggests a win for Stephens (the Director of the Texas Department of Criminal Justice, Correctional Institutions Division).

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UPDATE on October 20: Individual Justice Analysis Suggests Close Call

I had a chance to go back over the question count per Justice. This examination paints a different picture of the possible winner than my earlier analysis of the total question count during oral argument. In contrast to using the Court’s total question count as a predictor, the question count by individual Justice leans slightly in favor of the Respondent Sandoz.

Five of the Justices (Roberts, Kennedy, Ginsburg, Alito, and Sotomayor) asked the Respondent fewer questions than the Petitioner—which suggests a more favorable outcome for the Respondent. It should be noted, however, the differential was not large. For four of these Justices (Roberts, Kennedy, Alito, and Sotomayor), the question differential was only one or two questions. Justice Kennedy, whose vote in past studies was harder to predict based on question counts, asked the Petitioner Teva just one more question than the Respondent (4 to 3). Justice Ginsburg was the only Justice who asked the Petitioner twice as many questions (6 to 3).

By contrast, three of the Justices (Scalia, Breyer, and Kagan) asked the Petitioner fewer questions by large margins. Indeed, Justices Scalia and Kagan asked the Respondent twice as many questions than the Petitioner (6 to 3, and 7 to 3 questions), while Justice Breyer asked more than three times as many questions to Respondent (14 to 4). (Justice Thomas did not ask any questions.)

So has this analysis changed my original prediction? To some extent, yes. I am less confident in the prediction, given the individual Justice breakdown. However, given the Solicitor General’s position in the case and the total question count plus three Justices with larger question differentials in favor of the Petitioner, I am going to stick by my original prediction that the Supreme Court will reverse the Federal Circuit decision for failing to apply a clear error standard under Rule 52(a) to any factual findings related to the claim construction below.

The Supreme Court heard oral argument in two cases on Tuesday. I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. Studies have shown that the advocate who receives more questions during oral argument is more likely to lose. For more about this method, see my post on last Term’s Aereo case.

Kansas v. Nebraska and Colorado asks what relief is appropriate to remedy the violation by Nebraska of a compact apportioning the waters of the Republican River between Kansas, Nebraska, and Colorado. The Court has original jurisdiction over the case involving three states and will review the special master’s report and award of remedies.

This is an unusual case involving the Court exercising original jurisdiction. It’s a tough case to call simply based on the question count. Plaintiff Kansas received a few more questions (38) than Defendants Nebraska and Colorado (32), which suggests that the Kansas will lose in its attempt to convince the Court that injunctive relief is warranted, as well as more significant disgorgement.

However, the Defendants’ position may not necessary prevail, either. In prior cases, the Court has tended to side with the Solicitor General’s position. In this case, the SG supported the special master’s report and issuance of partial disgorgement, but no injunctive relief. The SG’s attorney received 22 questions, although it’s not clear how much time was allotted. Based on both the question count and the Supreme Court’s tendency of adopting the SG’s position in prior cases, my prediction in this case is that the Supreme Court will follow the SG’s position.

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The second case, North Carolina Board of Dental Examiners v. Federal Trade Commission, asks whether, for purposes of the state-action exemption from federal antitrust law, an official state regulatory board created by state law may properly be treated as a “private” actor simply because, pursuant to state law, a majority of the board’s members are also market participants who are elected to their official positions by other market participants.

My prediction is that the Court will side with Respondent FTC’s position (i.e., that the Fourth Circuit correctly upheld the FTC’s determination that the state-action doctrine did not exempt the Petitioner’s conduct from federal antitrust scrutiny). The Petitioner North Carolina Board of Dental Examiners received nine more questions than the Respondent FTC, which suggests a win for the FTC.

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The Supreme Court heard oral argument in two cases on Wednesday, October 8, in the first week of the October 2014 Term. As I hope to do all Term, I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. It’s well established that the advocate who receives more questions during oral argument is more likely to lose. For more about this method, see my post on last Term’s Aereo case.

Integrity Staffing Solutions, Inc. v. Busk presents the question whether time spent in security screenings is compensable under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act. My prediction is that the Petitioner Integrity Staffing Solutions will win. The Respondent Busk received almost twice as many questions as the Petitioner (51 to 27 questions), and 11 more questions than even the total number of questions for the Petitioner and U.S. Solicitor General (who supported the Petitioner’s position) combined. The question count strongly suggests a victory for the Petitioner Integrity Staffing Solutions (which argued that the time spent in security screenings is not compensable under the FLSA).

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The second case, Warger v. Shauers, raises the issue whether Federal Rule of Evidence 606(b) permits a party moving for a new trial based on juror dishonesty during voir dire to introduce juror testimony about statements made during deliberations that tend to show the alleged dishonesty.

This is an easy case to predict, given the large disparity in the number of questions asked to the parties. The Petitioner Warger received more than twice as many questions than the Respondent and U.S. Solicitor General (who supported the Respondent’s position) combined (31 to 13 questions). The attorney for the Solicitor General’s Office in fact received no questions at all—a rarity during oral arguments. The huge disparity in the number of questions points to a victory for the Respondent Shauers (who argued that Rule 606(b) precludes evidence of juror testimony about statements made during jury deliberations even if it relates to juror dishonesty).

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The Supreme Court heard oral argument in two cases on October 7, 2014. I’m predicting the winners of the cases based on the method of question counting—i.e., the advocate that receives more questions during oral argument is more likely to lose. For more about this method, see my post on last Term’s Aereo case.

The first case may be too close to call. In Dart Cherokee Basin Operating Company, LLC v. Owens, the Court considered whether a defendant seeking removal to federal court is required to include evidence supporting federal jurisdiction in the notice of removal, or whether it is enough to allege the required “short and plain statement of the grounds for removal.” The Petitioner Dart Cherokee received 48 questions, three fewer than the Respondent Owens, who received 51 questions. The total question count is favorable to the Petitioner. But if you look at the questions per Justice, five of the Justices (Roberts, Scalia, Kennedy, Sotomayor, and Kagan) asked more questions to the Petitioner. Three other Justices (Ginsburg, Breyer, and Alito) asked more questions to the Respondent.   The individual question count by Justice might suggest a favorable outcome for the Respondent. This case is a toss-up.

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The second case is easier to predict. In Holt v. Hobbs, the Court considered whether the Arkansas Department of Corrections grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc et seq., to the extent that it prohibits petitioner from growing a one-half-inch beard in accordance with his religious beliefs. The Respondent Hobbs, Director of the Arkansas Department of Corrections, received twice as many questions (52) as the Petitioner (23)—and seven more questions than the total number for the Petitioner and U.S. Solicitor General (who supported the Petitioner’s position) combined. The question count strongly suggests a victory for the Petitioner Holt.

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[Reposted from IIT Chicago-Kent Faculty Blog]

The Supreme Court opened its October 2014 Term by hearing oral argument in Heien v. North Carolina, which raises the question: Whether a police officer’s mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop?

I am using the same method of predicting the winner of the case that I have used before, which is based simply on the total number of questions each party receives. Other scholars have shown that the more questions an advocate receives during oral argument before the Supreme Court, the more likely the advocate will lose the case. For more about this method, see my post on last Term’s Aereo case.

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In this case, we have the confounding factor of the Solicitor General’s participation on the side of the Respondent. The participation of the SG is confounding in two respects: (1) it decreases the time the party whose side it supports has during the oral argument (usually by 10 minutes), thus decreasing the time the party is questioned and increasing the likelihood the party will receive fewer questions than the opposing party, who is questioned for the full 30 minutes; and (2) the Supreme Court often ends up agreeing with the side that the SG supports.

I also should mention that I am not an expert in Fourth Amendment law and have not studied the Court’s jurisprudence in this area (at least not since law school).

With those caveats in mind, my prediction is that the Supreme Court will side with the State of North Carolina, which received eleven fewer questions than the Petitioner. However, the disparity of questions between both parties is not large, so my confidence level in the prediction is not very great. From my analysis of last year’s IP cases, the predictive value of the question-counting method appeared to work best when the disparity of questions between the parties was great (excluding the SG’s participation). If we calculate the questions asked per minute to each party, the Respondent North Carolina actually had the higher rate of questioning (1.55 questions per minute versus 1.4 questions per minute for the Petitioner).

As the Term progresses, I hope to refine the method, especially in cases in which the SG participates. But for now, my prediction in this case will be for North Carolina.