While the backlog of argued cases pending decision has been growing substantially, the Court rendered only one opinion today, and it was unanimous.
Almost nine months ago, on June 13, 2022, the U.S. Supreme Court issued a long awaited decision in ZF Automotive US, Inc. v. Luxshare, LTD. that sought to resolve a decades-old circuit split regarding whether 28 U.S.C. § 1782 – which permits litigants to obtain evidence in the U.S. “for use in a proceeding in a foreign or international tribunal” – applies to private, commercial international arbitrations. Practitioners were initially hopeful that the Supreme Court had conclusively resolved this issue when it unanimously held that only bodies “that exercise governmental authority” constitute a “foreign or international tribunal” under section 1782, which meant that parties engaged in private, commercial arbitrations and ad hoc arbitrations abroad could not use the statute to obtain discovery from companies and individuals in the U.S. However, in doing so, the Court left open the possibility that “sovereigns might imbue an ad hoc arbitration panel with official authority,” leaving courts (and litigants) to grapple with the question of whether and when a foreign body may be imbued with governmental authority sufficient to constitute a foreign or international tribunal for purposes of section 1782 discovery. Few courts have addressed this lingering question in the aftermath of ZF Automotive, and those that have have interpreted the decision very restrictively, indicating that the universe of international arbitrations that section 1782 now covers may be considerably narrower than it has been in the past.
The Supreme Court decided two cases today, and though neither of them presents the sort of widely consequential matter that, say, the President’s student loan forgiveness plan that was argued this morning does, each has interesting aspects. Both are decided on the now-vogueish doctrine of textualism, though each shows divisions among the Justices that prove again that not only can Justices who have differing jurisprudential philosophies agree with one another as to statutory meaning, but that Justices with the same jurisprudential philosophy can disagree with one another on text as well. Thus, while there are cases, like Dobbs, where one might accurately predict the outcome on the basis of philosophy or alignment with the preferences of the President who nominated various Justices, there is a host of cases where labels don’t hold up at all.
Selecting a business partner, much like selecting a spouse, involves a great deal of trust in the other’s representations and conduct as the actions of one, for better or worse, can be attributed to the other. The intricacies and complications of these two relationships most recently clashed in Bartenwerfer v. Buckley, which has presumably settled the question of whether the debt resulting from the fraud of one legal partner/spouse can be imputed to the fraudster’s innocent wife in the bankruptcy context.
The Court has broken the logjam of pending opinions, rendering three decisions today, one of which, dealing with the issue of when overtime pay is mandated under the Fair Labor Standards Act (FLSA), might have a broader effect. So, let’s start with that one: Helix Energy Solutions Group, Inc. v. Hewitt.
While many commentators were wondering when the Supreme Court would start issuing opinions, the backlog of argued cases now being substantial, today is their day.
The Supreme Court is back in live session, and so is this blog.
The Supreme Court recently granted certiorari in In re Grand Jury to resolve a circuit split regarding what standard governs the application of the attorney-client privilege to dual-purpose communications, that is communications which contain both legal and non-legal advice. The petition was filed on behalf of an unnamed law firm which asserted the privilege in response to a federal grand jury subpoena.
Continue Reading Supreme Court to Review Scope of Attorney-Client Privilege for “Dual Purpose” Communications
The October term of the Court began yesterday, with a sitting that marked the very active debut of Justice Ketanji Brown Jackson and predictions that this term will be even more controversial than last, although it is difficult for me to imagine a more incendiary decision than Dobbs.
Continue Reading Court Upholds Biden Vaccine Mandate and Bump Stock Ban; Remembering Laurence Silberman and Raymond Strother: SCOTUS Today
The Court has now delivered its final two decisions of the term, one of them of great consequence to administrative law. With adjournment comes the retirement of Justice Stephen Breyer and the swearing-in of his successor, Judge Ketanji Brown Jackson, his former clerk, who is expected to be a dependable member of the Court’s liberal jurisprudential wing. All in all, a day of significance.
Continue Reading Two and Done: SCOTUS Today
With his retirement to begin on June 30 at noon, Justice Breyer leads a 5-4 split in Torres v. Texas Department of Public Safety, with the Chief Justice and Justice Kavanaugh, along with Justices Sotomayor and Kagan, joining him in holding that, by virtue of the states having ratified the Constitution, they agreed that their sovereignty would yield to the national power to raise and support the Armed Forces. Accordingly, Congress may exercise this national power to authorize private damages suits against nonconsenting states. Congress did just that when it passed the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which gives returning servicemembers the right to reclaim their prior jobs with state employers, and authorizes suit if those employers refuse to accommodate veterans’ service-related disabilities. See 38 U. S. C. § §4301 et seq.
Continue Reading A Divided Court Rules Against States in Veterans’ Employment and Indian Country Criminal Jurisdiction Cases: SCOTUS Today