All posts by Professor Carolyn Shapiro

Constitution Day Event: Political Polarization and Constitutional Interpretation

As we prepare to celebrate Constitution Day later this month, the founding document is as hotly debated as ever. Throughout history, different parts of the Constitution have taken on political significance at different times. Today, debates about the Constitution are intertwined with polarization and division among the public and within democratic institutions such as Congress and the courts.

In celebration of Constitution Day, Chicago-Kent College of Law is having a panel discussion, “The Constitution and Political Polarization” on Wednesday, September 18 from 3-4 p.m. in Room 590.

The panel will include Chicago-Kent faculty members:

Professor Steven Heyman 

University Distinguished Professor Mark Rosen

Professor Christopher Schmidt, Co-Director of the Institute on the Supreme Court of the United States

Associate Professor Carolyn Shapiro, Co-Director of the Institute on the Supreme Court of the United States

The event is free and open to the public. We hope you can join us for what promises to be a lively and interesting discussion.

New Case on State Action: Manhattan Community Access Corp. v. Halleck

Last Friday, the Supreme Court agreed to hear Manhattan Community Access Corp. v. Hallecka case about when and whether a private entity that runs a public access channel is a “state actor.” The question is important because state actors can be held liable for violating constitutional rights; private actors generally cannot. As the Legal Information Institute explains, “[t]he state action requirement stems from the fact that the constitutional amendments which protect individual rights (especially the Bill of Rights and the 14th Amendment) are mostly phrased as prohibitions against government action.” Depending on how the Court rules and how broadly it reasons, the case could have implications for social media companies, as this CNBC article explains.

The Kavanaugh Documents Controversy

During the first day of the hearing for Judge Brett Kavanaugh’s nomination for the Supreme Court starts on Tuesday, September 4, 2018. On the first day, the senators on the Senate Judiciary Committee will make opening statements, but there won’t be questions for the nominee. But these opening statements are likely to be unusually contentious. Democrats are angry with the White House and the Republicans over the release — or lack of release — of documents from Judge Kavanaugh’s career in government. This post summarizes some of that controversy.

In the 1990’s, Kavanaugh worked for Ken Starr when he was investigating President Bill Clinton. Later, he spent time working in George W. Bush’s White House. Senate Democrats demanded to see all documents from this time. Almost three weeks after Kavanaugh’s nomination was announced, Senator Grassley, Republican chair of the Senate Judiciary Committee, asked Patrick Mordente, Director of the George W. Bush Presidential Library and Museum, for emails and textual records relating to Judge Kavanaugh’s time serving the White House, and documents relating to Judge Kavanaugh’s nomination to the U.S. Court of Appeals for the D.C. Circuit. At about the same time, Senator Dianne Feinstein, ranking Democrat on the Committee, wrote to the National Archives and Records Administration (NARA), expressing concern that NARA had not yet started reviewing Kavanaugh records for release, thus deviating from past Supreme Court nominee document review practices.

In early August, NARA announced that it would be unable to complete its review of the relevant records until late October. Senate Democrats file Freedom of Information Act (FOIA) requests to get Kavanaugh records from NARA, Department of Justice, Department of Homeland Security, and the CIA. Senator Grassley nonetheless set the hearing to begin this week. In the meantime, Bill Burck, personal lawyer for President Bush, reviewed and approved the release of some documents from the Bush Library. Burck was Kavanaugh’s deputy in the White House and now represents several current and former White House staffers — Don McGahn, Reince Priebus, and Steve Bannon — in relation to the Mueller probe. After Burke completed his review, on the Friday before the hearing begins, the Trump administration announced that it was asserting executive privilege over 100,000 pages of documents that the Bush Library had cleared for release.

Democrats and their allies are comparing the unreleased documents for Kavanaugh with what they say was the comprehensive release of documents from Justice Elena Kagan’s time in the Clinton White House during her confirmation hearings. Democrats argue that the same level of cooperation should be shown today. Republicans, on the other hand, argue that some of the documents requested are irrelevant to Brett Kavanaugh’s judicial philosophy, and that his opinions during his time as a judge on the D.C. Circuit, along with other publicly available documents, should be sufficient, and that the documents produced are comparable to those produced for Kagan’s nomination.

In addition, there are some specific areas of dispute. During Kavanaugh’s confirmation hearings for his appointment to the D.C. Court of Appeals in 2006, he stated that was not involved with the legal issues surrounding the use of enhanced interrogation techniques on high value detainees. A newly released email from November 19, 2011 has recently become the focus of those who doubt the veracity of this claim. Senator Patrick Leahy, for example, a longtime Democratic member of the Committee, explains that he needs “Kavanaugh’s FULL record because it will reveal if he lied to me under oath in 2006—whether he is fit to serve on our highest court.”

Democratic Senators are not the only ones pushing for more documents regarding his time in the White House. On August 13th, Lambda Legal announced that it had also filed FOIA requests for documents and communications, specifically from Kavanaugh’s time in the White House from 2003 to 2006. (Lambda Legal is a LGBTQ civil rights legal organization.) They filed requests with eight different departments and agencies citing, for example, the interest that both Lambda Legal and the public have in knowing what role Kavanaugh played in President Bush’s efforts in advocating for a constitutional amendment that would have banned same-sex marriage. The announcement, with links to each individual FOIA request, can be found here.

The hearing is poised to go forward without all the documents sought by Democrats and their allies. But with FOIA requests outstanding, at least some of those documents may eventually be made public, albeit perhaps after the hearing — and possibly even after the vote on Kavanaugh’s confirmation. What he says during the hearing, and how it compares to the documentary record, may be a controversy that does not end soon.

ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, contributed to this post.

Putting SCOTUS confirmation hearings in context

Contemporary Supreme Court confirmation hearings are both exciting and disappointing. They are exciting because they provide a chance to hear directly from the nominee, who otherwise may not be well known. The interested public can learn a bit about the individual’s public personality and intelligence. On the other hand, the hearings are disappointing because the nominee tells us so little about what he or she actually thinks about the law – and especially about the hot-button legal issues of the day. To the contrary, rather than serious conversations about the nominee’s judicial philosophy, the Constitution, and the role of the courts, we get lengthy speeches by senators and bland answers from the nominee.

Yet a spate of recent scholarship (including my own) shows that  Supreme Court confirmation hearings can include important and substantive discussions. Indeed, during the 1980s and 1990s – even after the failed nomination of Judge Robert Bork – nominees and senators engaged in serious discussions of judicial philosophy. Although since 2000, such substance has faded, the history illuminates what we can realistically expect – and what we should demand – from what could be an important and meaningful public event.

Perhaps the most important lesson of history is that the content and conduct of confirmation hearings have changed over time. Although we think of nominees’ testimony as the centerpiece of the confirmation process, for most of the country’s history, Supreme Court nominees did not testify publicly. Justice Harlan Fiske Stone appeared before the committee in 1925 to address allegations related to a political scandal, and Justices Felix Frankfurter (1939) and Robert Jackson (1941) also testified. But it was not until 1955, with the nomination of John Marshall Harlan, that the current practice of routine appearances began.

That timing does not appear to be accidental. The year before Harlan’s nomination the Supreme Court decided Brown v. Board of Education, declaring Jim Crow-era racial segregation of schools unconstitutional. Sen. James Eastland of Mississippi, who became chair of the committee in 1956 – a position he held until 1978 – as well as two other members of the Committee – Sen. John McLellan of Arkansas and Sen. Sam Ervin of North Carolina– were southern Democrats who deeply opposed Brown. They used Supreme Court confirmation hearings to rail against the decision, which they considered a usurpation of legislative power and state authority and an improper judicial “amendment” to the Constitution motivated by the justices’ own policy preferences.

Potter Stewart’s 1959 confirmation hearing is a case in point. While questioning Stewart, McClellan announced that he “wholly disagreed with” Brown and demanded to know what Stewart thought. (Stewart demurred.) Eastland asked Stewart if overruling the separate-but-equal doctrine was “an amendment of the Constitution.” And Ervin, who made a lengthy speech condemning Brown as “a most unfortunate decision from the standpoint of law, Constitutional law in the United States,” explained that the Court “should have turned the clock back to 1868 when the [Fourteenth] Amendment was ratified” to determine the original understanding of the amendment with respect to segregation.

Perhaps even more surprising to modern observers than the controversy over Brown, however, is that during the 1950s and 1960s, most senators on the committee asked very few, if any, questions of the nominees. Segregationist senators dominated the hearings. Between 1955 and 1969, Eastland, Ervin and McLellan, along with Republican segregationist Sen. Strom Thurmond of South Carolina, who joined the committee in the mid-1960s, asked 70 percent of the substantive questions at the hearings, even as they began to shift their emphasis away from Brown and onto the Warren Court’s criminal-procedure jurisprudence and its redistricting and voting-rights cases. Justices Thurgood Marshall and Abe Fortas, for example, were grilled at length about such issues.

But if these particular senators were not concerned about a nominee, the hearing was short and polite. At Justice Charles Whittaker’s 1957 hearing, for example, Whittaker’s testimony, which takes up exactly three pages of transcript, consisted largely of biographical information — he rode a pony to high school “through 6 miles of mud night and morning.” Justice Byron White’s hearing in 1962 lasted a total of 95 minutes, including introductions and enthusiastic testimony from representatives of the American Bar Association and the Colorado Bar Association. At that hearing, none of the segregationists asked the nominee a single question; McClellan did not even attend.

This pattern changed in the 1980s, when the hearings began to be televised. The underlying norms of the hearings shifted, and most senators began to participate actively. Today, of course, every senator on the committee is present for the hearing and asks questions. Every senator gives an opening statement. Nowadays, in fact, the entire first day of the hearing is taken up by these opening statements, along with a statement by the nominee. And although one might wonder whether that particular allocation of time is worthwhile, the current intense attention of senators, media and the public alike is commensurate with the importance and influence of the Supreme Court.

Of course, complaints about confirmation hearings are common. Some people argue that they have become over-politicized, a view that appears to be based on a background assumption that at one time, the hearings focused primarily on nominees’ qualifications and ethics. This assumption is wrong, even if the substantive questions once came from only a small number of senators who were preoccupied by specific issues. There is even hard data. Law professor Lori Ringhand and political scientist Paul Collins, in their excellent book Supreme Court Confirmation Hearings and Constitutional Change, report their findings from a large-scale qualitative and quantitative analysis of the hearings. And they find that senators have always asked questions about substantive areas of law. There was no hazy past in which senators routinely avoided difficult subjects in favor of a gentlemen’s handshake; Whittaker’s and White’s hearings were the exception, not the rule.

Of course, ethics and qualifications are not irrelevant during the hearings. In fact, after Justice Abe Fortas’s failed nomination to become chief justice and his resignation from the Supreme Court in 1969 under an ethical cloud, subsequent hearings focused particularly heavily on ethics and qualifications. From 1955 through 1968, only about a quarter of questions asked focused on ethics, while from 1969 through 1975, almost half did. Indeed, after successfully nominating Warren Burger as chief justice in 1969, President Richard Nixon offered two nominees, Clement Haynsworth and G. Harold Carswell, who were both rejected in large part because of significant concerns about their ethics and qualifications.

Thus, by the time Justice John Paul Stevens testified in 1975, questions about ethics and qualifications were routine. Stevens, then a judge on the U.S. Court of Appeals for the 7th Circuit, was asked about, for example, his recusal practices and about whether he received income from any nonjudicial sources. Some senators also were worried about Stevens’ health, which they discussed in some detail — ironically, given that more than 40 years later, Stevens, although retired, is still with us. And of course, committee members have continued to ask about ethics and qualifications when they deem it appropriate. But it is wrong to conclude that some kind of undue politicization has evicted ethics and qualifications from the primary focus of senators’ questioning.

While some complain that the hearings have veered away from a focus primarily on ethics and qualifications, others lament what they see as less candor by the nominees. More specifically, one current complaint is that nominees refuse to answer important questions. Indeed, that complaint underlies then-Professor Elena Kagan’s famous characterization of the hearings as a “vapid and hollow charade.” Although this complaint has some merit, as discussed below, just as there was no time when ethics and qualifications were all that mattered in the confirmation process, so too was there no time when nominees freely answered all the questions they were asked. To the contrary, nominees have always declined to answer some questions because of an unwillingness to promise how they will vote on particular cases or issues.

Moreover, although many believe that Bork’s failed nomination led to nominees becoming increasingly reticent, the data do not bear that belief out. Ringhand and Collins, as well as political scientists Dion Farganis and Justin Wedeking, have examined the extent to which nominees decline to answer questions. Perhaps surprisingly to many of us, the rate at which this occurs has remained more or less constant over time.

Yet the tone and content of the hearings have changed in the new millennium, and not for the better. Ringhand and Collins recently compared the rate at which nominees refuse to answer questions to the rate at which they offer “firm answers about concrete doctrines and cases.” Beginning in 1987 (with Bork) and through 1994 (with Justice Stephen Breyer), all nominees gave firm answers significantly more often than they demurred.

These observations are consistent with my argument that the hearings held during the late 1980s and 1990s were remarkably substantive. This is not to say that nominees during those years made commitments about how they would rule on contested legal issues. But they did discuss their judicial philosophies, their past writings and their beliefs about the role of judges. To give just two examples: Justice Clarence Thomas talked extensively about his reliance on natural law as, for example, described in the Declaration of Independence, as an important source of information about the Framers’ thinking. And Justice Ruth Bader Ginsburg reiterated her belief that Roe v. Wade had been correctly decided, even as she criticized its reasoning. Specifically, she described the relationship between liberty, privacy and equality and discussed the necessity that government treat women as full human beings, all of which she believed required the outcome in Roe.

But beginning with Chief Justice John Roberts’ hearing (the first one after Breyer’s), nominees have been less consistently willing to have meaningful discussions about the law. Most notably, Ringhand and Collins’ data show that both Roberts and Justice Neil Gorsuch gave firm answers significantly less often than they refused to answer. Gorsuch even hesitated before eventually acknowledging, circuitously, that Brown v. Board of Education was rightly decided.

Such reticence over even the most well-established precedents is, in my view, highly problematic. A Supreme Court nominee should be willing to share his or her most basic constitutional commitments with the senators. That Brown was correctly decided should not be controversial in 2017 or 2018. If the nominee cannot endorse the outcome of that iconic case, the senators – not to mention the American people – need to know that before determining whether the nominee should serve for life on the nation’s highest court. Without such conversations, we suffer a significant loss to a candid and robust public discussion of constitutional values, a discussion that we need now more than ever.

This post first appeared at SCOTUSblog.

April Argument Review V – Administrative Law, Deference to Foreign Courts, and More

On April 23, the Court heard oral arguments in Lucia v. Securities and Exchange Commission, a case about whether Securities and Exchange Commission (“SEC”) administrative law judges (“ALJs”) are “Officers of the United States” within the meaning of the Appointments Clause of the Constitution or merely employees of the SEC.  Alison Frankel of Reuters explains that in its Supreme Court brief, the Justice Department acknowledged that SEC ALJs are subject to the Appointments Clause. As Greg Stohr of Bloomberg explains, if the court agrees, there is a possibility that ALJs in a variety of agencies “could be fired for issuing rulings that clash with administration priorities.”

At argument, the justices did not appear to agree as to whether that would be a positive or negative development.  During the argument Chief Justice John Roberts stated this case could bring “political accountability” to federal judges, and in contrast Justice Stephen Breyer said the case could mean “goodbye to the independence” of ALJs. Robert Barnes of The Washington Post noted that Justice Elena Kagan likewise appeared worried about political pressure on ALJs, something they are shielded from as the law stands currently.

David G. Savage of The LA Times reports that some legal experts contend that a decision in favor of Lucia could also open the door for the President to be able to remove other executive officers, such as special counsel Robert Mueller. However, the tenor of the argument did not suggest that the justices have an interest in ruling that broadly. Check out The Wall Street Journal and U.S. News for more commentary on the arguments in this case.

On April 24, the Court heard arguments in Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd. The issue in this case is whether U.S. courts should defer to foreign government’s interpretation of their own law, or if U.S. courts can exercise their own interpretation of the foreign law. Greg Stohr of Bloomberg reports that the Trump administration is partially backing Animal Science Products, who sued Hebei alleging they violated U.S. antitrust law by price fixing Vitamin C imports. China’s Ministry of Commerce had their day in the courtroom as they were granted argument time “unprecedently” by the Court. China’s lawyer, Carter Phillips argued that Hebei was just following Chinese law that required them to fix prices. Regarding the argument that U.S. courts should defer to foreign government’s interpretation of their law, Justice Elena Kagan asked, “How can you say that the only thing that shows respect to foreign governments is to do something that we don’t know that any other foreign nation does?”   that Justice Neil Gorsuch appeared to take an opposing stance and questioned why we should not defer to an administrative agency of a foreign sovereign, such as how “Chevron deference” allows courts to defer to interpretations of U.S. administrative agencies. Check out Reuters and Wall Street Journal  for more information on the arguments.

On April 23, the Court also heard oral arguments in Pereira v. Sessions. This is a statutory interpretation case about cancellation of removal (deportation) under 8 U.S.C. §1229b. At issue is whether a “notice to appear” issued by the government must meet certain criteria, as laid out in §1229(a), such as a court date and time. The oral argument transcript can be found here, and the recording can be found at Oyez. And in another case that week, Chavez-Meza v. United States, involving a sentencing issue, “[e]mbattled Deputy Attorney General Rosenstein“, argued on behalf of the government, as he participated in the tradition of a high-ranking Department of Justice Official arguing a case in front of the Court.

ISCOTUS Fellows Matthew Webber, Chicago-Kent Class of 2019, and Eva Dickey and Michael Halpin, both Class of 2020, contributed to this post, which was 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.

April Argument Review III – Trump v. Hawaii and Presidential Statements

Trump v. Hawaii, the challenge to the third version of the travel ban issued by President Trump, was the last argument of the Term, argued on April 25.  The case featured two extremely experienced advocates: former Acting Solicitor General for the Obama Administration, Neal Katyal, representing the state of Hawaii, and current Solicitor General, Noel Francisco.

In a proclamation, President Trump limited travel from eight countries: Chad, Libya, North Korea, Iran, Somalia, Syria, Venezuela, and Yemen. Hawaii challenged the proclamation, arguing that it exceeded the president’s authority under the Immigration and Nationality Act (“INA”), specifically section 1182(f), and also violated the Constitution. The federal district court issued a preliminary injunction blocking the order and the Ninth Circuit upheld that ruling. The courts held that the proclamation likely violates the Immigration and Nationality Act.

The government defended the proclamation as within the President’s INA authority because the statute gives the president a “broad and flexible power,” and the proclamation reflects his foreign policy and national security judgment as to whether the government has enough information needed to determine whether aliens from particular countries are admissible. The government also argued that under the 1972 case, Kleindienst v. Mandel, once the government presents a legitimate reason, such as national security, for not admitting aliens, the decision is not subject to judicial review.

Addressing the statutory argument, Katyal argued that Congress already implemented a three-part plan to address the problem of certain countries not providing sufficient information for the U.S. government to vet nationals, and that plan included a ban on nationality discrimination in section 1152, also part of the INA.

The advocates also addressed whether the proclamation violated the Establishment Clause of the First Amendment because an objective observer would conclude that it was adopted for the purpose of excluding Muslims. In a high-stakes concession, Katyal agreed with Chief Justice Roberts that if the President “tomorrow” disavowed any anti-Muslim purpose or rhetoric, the Establishment Clause issue would disappear. In apparent response, in the last 30 seconds of his rebuttal, Solicitor General Francisco stated:

Well, the President has made crystal-clear on September 25 that he had no intention of imposing the Muslim ban. He has made crystal-clear that Muslims in this country are great Americans and there are many, many Muslim countries who love this country, and he has praised Islam as one of the great countries of the world. This proclamation is about what it says it’s about: Foreign policy and national security.

This statement turned out to be one of the most controversial in the case. Observers tried unsuccessfully to identify what September 25 statement the Solicitor General was referring to. (Full disclosure: I am one of many who said publicly that it was important for the government to correct or clarify the statement.) On May 1, the government filed a letter correcting the date in question, indicating that the reference was to January 25, 2017, and statements made that day that were cited in its reply brief. This clarification has not satisfied opponents of the proclamation. Since oral argument, and despite Katyal’s concession, the President and his press secretary have declined to make any disavowals of an intent to ban Muslims.

Bridget Flynn, Chicago-Kent Class of 2019, contributed this post.


April Argument Review – Part II – Tribal Fishing Rights

Native American fishing rights are at issue in Washington v. United States, argued in April 18, and covered by ISCOTUS now here. In the “Stevens Treaties,” a series of agreements made in the 1850s between the federal government and Indian Tribes in what are now the states of Idaho, Montana, Oregon, and Washington, the Tribes relinquished most of their territory, but retained in perpetuity “the right of taking fish, at all usual and accustomed grounds and stations. . . in common with all citizens of the Territory.”

In this case, the Tribes, joined by the United States, are seeking “to enforce a duty upon the State of Washington to refrain from constructing and maintaining culverts under State roads that degrade fish habitat.” The Tribes argue that culverts violate the treaties because they prevent salmon from accessing tribal fishing grounds, thus degrading fisheries and interfering with the Tribes’ “right of taking fish.” The district court found for the Tribes, which the Ninth Circuit affirmed, reiterating that the treaties guaranteed that “the number of fish would always be sufficient to provide a ‘moderate living’ to the Tribes.” The petitioner, the state of Washington, argues that while treaties do guarantee the Tribes the right to access fishing grounds, they do not guarantee the Tribes a standard of living of living from fishing.

At argument, the Court focused primarily on the appropriate standard to determine when the state violates the treaties. Noah Purcell, the Solicitor General of Washington, argued that a barrier would violate the treaties only if it causes “a large decline in a particular river and that it’s not justified by substantial compelling interests.” When Justices Alito and Kagan pressed Mr. Purcell to clarify this standard, he explained that “a decline of half the salmon would certainly easily qualify” but a decline between 1 and 5 percent would not qualify. Justice Gorsuch also pressed Mr. Purcell on his assertion that barriers would not violate the treaty if justified by a substantial compelling interest. “I don’t see anything in the treaty…that says: Ah, and your rights to those usual and customary grounds and stations is limited by, and may be completely eliminated, if necessary, to meet other domestic interests that a municipality might have, which is, I think, the position you’re taking…before this Court.”

Allon Kedem argued on behalf of the United States, and William M. Jay, argued on behalf of the Tribes. Both were also asked to clarify the appropriate standard of salmon degradation that would constitute a treaty violation. Mr. Kedem did not provide a specific number, but stated that “substantial degradation” is “harm that is both durable and appreciable, meaning the type of thing that shows up year after year, despite normal fluctuations.” Mr. Jay said that substantial degradation does not mean “a hard and fast number” but is “something that you would determine, factually, in the context of one fish species versus another.”

Reviewing the arguments for SCOTUSblog, Miriam Seifter writes that while the Court “is unlikely to devote its opinion to correcting factual findings”, it “does seem poised to announce some standard for violations of the treaties.”

Also on Wednesday, April 18, the Court heard arguments in Lagos v. United States, which presents the question of whether, under the Mandatory Victims Restitution Act (MVRA), a criminal defendant can be ordered to pay costs to the victim that were “neither required nor requested” by the government, including costs incurred for the victim’s own purposes and which no official government action prompted. The case involves the MVRA’s requirement that courts must order the defendant to “reimburse the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.” 18 U.S.C. 3663A(b)(4).

The Fifth Circuit, and other courts of appeals, held that this provision covers the costs of internal investigations and private expenses that were “neither required nor requested” by the government, but the D.C. Circuit has disagreed.

Daniel Geyser, a Dallas attorney, argued on behalf of the defendant, the former owner and CEO of a holding company that owned USA Dry Van Logistics LLC, a trucking company. Lagos induced GE Capital to loan his company tens of millions of dollars by modifying Dry Van’s records, leading GE Capital to incur almost $5 million in debt.

Geyser argued that the MVRA’s language “does not include the cost of hiring four law firms, a consulting firm and forensic experts for a private investigation in bankruptcy litigation.” Unlike other restitution provisions, the MVRA does not provide make whole relief, he argued. Geyser further argued that GE Capital incurred expenses before the government’s investigation, and therefore they did not qualify as expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.

Michael Huston, Assistant to the Solicitor General, argued on behalf of the United States, taking the position that the statute is not limited to participation in the government’s investigation. Several justices appeared to disagree, however. Chief Justice John Roberts, for example, stated that the statute refers to only one investigation and that must be the government’s. And Justice Breyer told Huston that he has “a big problem” with the statute’s language because it does not clarify whether a victim should receive restitution for costs incurred during a company’s investigation before a police investigation begins.

On Tuesday, April 17, the Supreme Court heard arguments in Lamar, Archer & Cofrin, LLP v. Appling, in which the Court will decide if an oral statement regarding a single asset is a statement “respecting the debtor’s financial condition,” as described in the United States Bankruptcy Code. Danielle D’Onfro of SCOTUSblog reports that the justices asked few questions of the parties in this case, but when they did, they primarily focused on what types of statements, such as “I’m above water,” “I own a genuine Vermeer,” and “I have a bank account with a billion dollars in it,” can be considered actual statements about one’s “financial condition.” D’Onfro believes the ruling will not “clarify much beyond a few words in Section 523,” and the case “may be in the running for the narrowest decision of the term.” To read more about the case, check out the Jurist’s article, here.

ISCOTUS Fellows Bridget Flynn, Elisabeth Hieber, and Matthew Webber, all Chicago-Kent Class of 2019, contributed to this post, which was 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.

April Argument Review: Part I – State Taxation of Internet Commerce

April saw several significant oral arguments, including a case that could change the rules for state taxation of internet commerce, South Dakota v. Wayfair, previewed here. In Wayfair, the state of South Dakota, with the support of forty-one other states, is asking the Court to overrule a 1992 case, Quill Corp. v. North Dakota. Quill held that the commerce clause prohibits state governments from taxing out-of-state retailers that do not have a physical presence in the state on the sale of goods.

South Dakota Attorney General, Marty J. Jackley, argued  first that under Quill, states are losing “massive sales tax revenues” needed for “education, health care, and infrastructure.” Second, he argued that the holding it hurts smaller retailers with brick-and-mortar stores who are trying to compete against the larger, national retailers with an online presence.

Justice Sotomayor asked Jackley “[h]ow much contact is enough to justify placing this obligation on an out-of-town seller?” She was also concerned about logistics, asking what would happen if a company lost track of how much it had sold in a particular state. Chief Justice Roberts pointed out that some of the larger e-commerce companies are expanding to the point that they have a physical presence in most, if not, all 50 states, arguably rendering a reversal of Quill irrelevant. Jackley responded by stating that although a few companies—principally Amazon—are expanding their physical presence, states are expected to miss out on some $100 billion in lost revenue over the next decade. Justice Kennedy, no fan of Quill, stated that “this court has made a statement of constitutional law that … has now, especially in light of the cyber age, proven incorrect.”

Arguing against a reversal of Quill, George Isaacson, representing Wayfair argued that Congress should identify the parameters of taxation across state lines. For example, he argued, “[Congress] can require standard uniform definitions of products so that food and sportswear and clothing doesn’t mean one thing in one jurisdiction ad another elsewhere. “ Similarly, Chavie Lieber of highlights a similar argument made by those opposed to the Supreme Court overruling Quill. Such a reversal of  via the Supreme Court would “open a can of worms” as local state tax regimes restructure how they levy those new taxes. Alan Horowitz of Appellate Tax reviewed the oral argument in detail, concluding that signs pointed towards a closely divided court likely to uphold its prior precedent.

In another tax related-case, Wisconsin Central Ltd. v. United States, the issue revolved around whether stock transferred by a railroad company to an employee is taxable compensation under the Railroad Retirement Tax Act. Elizabeth Lowman of Jurist writes that during the argument Wisconsin Central argued that stock is not money as defined as a “generally accepted medium of exchange.” The government on the other hand argued that more than just cash money falls under the purview of the statute and cited other non-cash examples that are taxed for support. Daniel Hemel of SCOTUSblog similarly noted that the main focus of the justices was what is considered “money,” and what is not.

And in WesternGeco LLC v. ION Geophysical Corp., argued the same day as Wisconsin Central, the Court considered whether a domestic patent holder can be awarded foreign lost-profit damages, or if the presumption against extraterritoriality bars such recovery. In this case, the Respondent produced components parts of a patented item that, if put together in the United States, would constitute patent infringement. Instead, however, Respondent shipped the components to foreign parties to be combined and then used outside of the United States.

Petitioner argued that the presumption against extraterritoriality should not apply because the loss of foreign profits is a direct and foreseeable result of a domestic act of infringement. Justice Breyer had questions for Petitioner primarily aimed at the idea of comity – whether or not allowing foreign lost-profits damages in this case could have the effect of foreign corporations going after components manufacturers in the United States for violating foreign patents.

Addressing Justice Breyer’s concerns, the Assistant to the Solicitor General, arguing for the United States in support of the Petitioner, noted that the comity issue should not be very concerning given that similar damages are already awarded in tort, contracts, and copyright law. The United States also argued that once the infringement is established, if the patentee is able to show that such infringement is the proximate cause of the patentee’s lost profits, the patentee should be allowed to recover full compensatory damages.

Respondent argued that the presumption against extraterritoriality should bar the Petitioner from being awarded foreign lost-profit damages, because the harm (downstream loss of foreign profits once the patented device is used abroad) is too far removed from the domestic act of infringement for these damages to appropriately be awarded. Many of the Justices’ questions for the Respondent were based around the idea that applying the presumption against extraterritoriality here would prevent the patentee from being fully compensated for the patent infringement.

Check out a quick overview of the background of the case and oral arguments from Reuters. And write up of the oral arguments from patent law blog Patently-O can be found here.

ISCOTUS Fellows Matthew Webber, Chicago-Kent Class of 2019, and Eva Dickey and Michael Halpin, both Chicago-Kent Class of 2020, contributed to this post, which was 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.