Federal Judiciary

Petitions to watch | Conference of 11.12.10

By Christa Culver

This edition of ?Petitions to watch? features cases up for consideration at the Justices? November 12 conference.  These are petitions raising issues that Tom has determined have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues.

Title: Harper v. Maverick Recording Company
Docket: 10-94
Issue(s): Whether the "inadvertent innocent infringer" defense to copyright infringement should be eliminated for all Internet music downloading.

Certiorari-Stage Documents:

• Opinion below (5th Circuit)
• Petition for certiorari
• Brief in opposition
• Amicus brief of Charles Nesson et al.

Title: Core Communications, Inc. v. Federal Communications Commission
Docket: 10-185
Issue(s): Whether the FCC may impose a below-cost rate cap on a category of rates concededly covered by the Telecommunications Act of 1996, notwithstanding that Act's requirement of cost-based rates and explicit assignment of rate-setting authority to state utility commissions rather than the FCC.

Certiorari-Stage Documents:

• Opinion below (DC Circuit)
• Petition for certiorari
• Brief in opposition
• Federal respondents' brief in opposition
• Petitioner's reply

Title: Pennsylvania Public Utility Commission v. Federal Communications Commission
Docket: 10-189
Issue(s): Whether the court of appeals violated Supreme Court precedent by upholding a ruling allowing the Federal Communications Commission to set rates for local intrastate communications by replacing those state rates with a mandatory interstate rate.

Certiorari-Stage Documents:

• Opinion below (DC Circuit)
• Petition for certiorari
• Brief in opposition (forthcoming)

Title: E.S.H. v. K.D.
Docket: 10-204
Issue(s): 1) Whether denying a parent the right to raise his child in the absence of a compelling state interest and narrowly tailored means violates the Fourteenth Amendment, 2) whether Pennsylvania's in loco parentis doctrine, which allows legal strangers to seek custody of a child, violates the right of the child's parent to raise his child, and 3) whether a showing that a parent's action or inaction resulted in harm to the child is required to demonstrate a "compelling" state interest warranting the state's interference with a parent's right to raise his child.

Certiorari-Stage Documents:

• Opinion below (Superior Court of Pennsylvania)(forthcoming)
• Petition for certiorari
• Amicus brief of Center for Arizona Policy et al.

Title: Williams v. United States
Docket: 10-212
Issue(s): Whether a defendant may be convicted of "simple assault" under 18 U.S.C. § 111(a) when the government has neither pleaded nor proved that the defendant engaged in assaultive conduct.

Certiorari-Stage Documents:

• Opinion below (5th Circuit)
• Petition for certiorari
• Brief in opposition

The following petitions have been re-listed for the conference of November 12.  If any other paid petitions are re-distributed for this conference, we will add them below as soon as their re-distribution is noted on the docket.

Title: Beer v. United States
Docket: 09-1395
Issue(s): Whether the Compensation Clause of Article III prevents Congress from withholding the future judicial salary adjustments established by the Ethics Reform Act of 1989.

Certiorari-Stage Documents:

• Denial of rehearing en banc (Federal Circuit)
• Summary affirmance (Federal Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioners' reply
• Amicus brief of Bar Associations
• Amicus brief of the American Bar Association
• Amicus brief of International Municipal Lawyers Association
• Amicus brief of Federal Judges Association

Title: Alderman v. United States
Docket: 09-1555
Issue(s): Whether Scarborough v. United States (1977) recognizes a distinct Commerce Clause authority, beyond the three categories recognized in United States v. Lopez (1995), United States v. Morrison (2000), and Gonzales v. Raich (2005), such that a federal statute which ?cannot be justified as a regulation of the channels of commerce, as a protection of the instrumentalities of commerce, or as a regulation of intrastate activity that substantially affects interstate commerce,? may be sustained based on a ?minimal nexus? between the activity regulated and interstate commerce.

Certiorari-Stage Documents:

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner's reply

Title: Allen v. Lawhorn
Docket: 10-24
Issue(s): Whether a state court?s determination that trial counsel?s waiver of a penalty-phase closing argument did not prejudice the defendant is ?contrary to? Supreme Court precedent.

Certiorari-Stage Documents:

• Opinion below (11th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioners? reply

Full post as published by SCOTUSBLOG on November 11, 2010 (boomark / email).