Thursday round-up

AMANDA RICE SEP 23, 2010 10:30 AM

Erwin Chemerinsky and Kenneth Starr have joined forces in an amicus brief supporting the petitioners – parents who contend that their daughter was injured by a defective vaccine – in Bruesewitz v. Wyeth, a preemption case scheduled for oral argument on October 12. Tony Mauro of the National Law Journal provides some background on the brief. In another post for the National Law Journal, Marcia Coyle discusses both the Chemerinsky/Starr brief and, more broadly, the four preemption cases at the Court this Term. She notes that Justice Elena Kagan’s recusal from three of the four cases “creat[es] the possibility of 4-4 splits,” and that “[h]er views and the views of Justice Sonia Sotomayor on pre-emption are, as yet, unknown.”

As Tony Mauro originally reported for the BLT (and Adam covered in yesterday’s round-up), the Court recently asked the Recording Industry Association of America (RIAA) to respond to a cert. petition by an alleged “innocent infringer”; that order has drawn attention in the blogosphere, as David Kravets of Wired, Wendy Davis of MediaPost, Mike Masnick of Techdirt, and Abigail Field of DailyFinance all speculate on the likelihood that the Court will grant certiorari.

Justice Scalia’s speech last Friday at the UC Hastings College of the Law – in which he indicated that the Fourteenth Amendment should not be read to prohibit discrimination on the basis of sex (and which James originally covered in Monday’s round-up) – continues to garner reactions.  In a piece cross-posted at Balkinization, Text & History, and the Huffington Post, David Gans criticizes what he characterizes as the Justice’s “selective” approach to originalism, arguing that he neglects originalism entirely “when it comes to the Fourteenth Amendment.” Gans points not only to Scalia’s analysis of the Equal Protection Clause in Friday’s speech, but also to his analysis of the Privileges or Immunities Clause in McDonald v. City of Chicago. At Time, Adam Cohen speculates that Justice Scalia’s comments are responsive to the constitutional theory Justice Breyer proffers in his new book and argues that Scalia “is on the wrong side of this debate.”

Briefly:

• In commentary for the National Law Journal, Debra Katz and Michael Filoromo III preview Staub v. Proctor Hospital, “a case that should resolve the deep circuit split on the question of when an employer may be held liable based on the unlawful intent of officials who caused or influenced — but did not make — an adverse employment decision.”
• At Sentencing Law and PolicySentencing Law and Policy, Douglas Berman analyzes Justice Kagan’s decision to “break ranks” with the other women on the Court by voting against a stay of Teresa Lewis’s execution.  (Adam covered the denial of a stay in yesterday’s round-up.)
• At the WSJ Law Blog, Ashby Jones discusses Tuesday’s New York Times editorial on political Supreme Court clerk hiring (which Adam covered in yesterday’s round-up) and considers whether “taking the sole authority of clerk-hiring away from the justices” might be “a larger correction than needed.”
• At Dorf on Law, Michael Dorf has a follow-up to his Findlaw piece on Senator Specter’s proposal to require the Court to allow cameras at oral arguments (which Adam covered in yesterday’s round-up). In it, he explores the various ways the Justices might decide whether or not to permit cameras in the courtroom. Dorf argues that the Justices should decide by majority vote, but predicts that “it will take either unanimity or consensus to change the policy.”
• At the Boston Globe, David Shribman reviews Justice Breyer’s new book, “urg[ing] readers to begin [the] book at the very end before plunging into the body of the text.”

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