As promised, here is the brief submitted by a second group of professors, together with former SEC Commissioners, in Halliburton Inc. v. Erica P. John Fund, Inc. It argues that the Court “need not wade into the complex and highly technical debate over the efficient markets hypothesis to answer the question presented here. Instead, the […]
Author Archive | John Elwood
Law Professors’ Brief in Halliburton
It’s been a busy enough week that I haven’t yet been able to post on the brief that colleagues and I filed on behalf of law professors Adam Pritchard and Todd Henderson in Halliburton Co. v. Erica P. John Fund, Inc., involving the continuing validity of Basic Inc. v. Levinson. Below is a short summary of the argument. Basic’s view […]
Recess Appointments Reading List (bis)
Back in April, I posted a list of relevant materials on the recess appointments debate that Marty Lederman and I had compiled. Since then, there has been far more extensive briefing on the subject, and more historical materials have become available. (One of the great things about the pendency of this case has been all […]
The Not-So-Hypothetical
Robert Barnes’ piece in the Washington Post today recounts a hypothetical from Justice Breyer at yesterday’s argument in Lozano v. Alvarez, involving the tolling of the statute of limitations under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. Following up on Justice Sotomayor’s hypothetical about the effect of a parent taking a child […]
Senate Rules Change and Noel Canning
Although most of the coverage of the Senate Rules change has concerned the immediate effect on the composition of the D.C. Circuit, it occurs to me that it is also relevant to NLRB v. Noel Canning. Many recess appointments in recent years were of nominees who enjoyed majority support, but a Senate minority prevented a […]
White House: No Plans To Pull Back on Recess Appointments Case
People with too much time on their hands know that I’ve made a cottage injustry out of addressing questions about whether new appointments to the NLRB would moot the NLRB v. Noel Canning case before the Supreme Court, involving the constitutionality of President Obama’s January 2012 recess appointment of three NLRB members. I’ve also heard […]
Divided Panel of Fourth Circuit Invalidates NLRB Recess Appointments
Late this afternoon, a divided panel panel of the Fourth Circuit invalidated President Obama’s January 2012 recess appointment of three NLRB members. People who have remarked on the fact that only judges appointed by Republican presidents have so far voted to invalidate these appointments, while judges appointed by Democrats have voted to uphold them, will […]
Could Senate Action After Cloture Reform Moot Noel Canning?
Over at Concurring Opinions, Gerard Magliocca notes that the Senate Democrats are considering a rule change that would bar filibusters for executive branch nominees, and states that “[p]art of the plan (or bluff) involves the confirmation of all the President’s nominees for the vacancies on the NLRB. These are the same vacancies that the President […]
Supreme Court Grants Review in Recess Appointments Case
To no one’s great surprise, the Court agreed to take the NLRB v. Noel Canning recess appointments case. As I predicted, the Court added a third question, in addition to the inter/intrasession question and the happens to arise/happens to exist question: “Whether the President’s recess-appointment power may be exercised when the Senate is convening every […]
Reading the Tea Leaves on the Supreme Court’s Outstanding Cases
With today’s decisions, there are three opinions left from the Supreme Court’s March argument sitting: Hollingsworth v. Perry (the Prop 8 case); United States v. Windsor (the DOMA case); and Mutual Pharmaceutical v. Bartlett (this Term’s pharma preemption case). There are three Justices who haven’t yet had opinion assignments from that sitting: the Chief Justice, […]
Noel Canning Recess Appointments Case Fully Briefed And Ready for Decision
Yesterday, the government filed its cert. stage reply brief in NLRB v. Noel Canning, 12-1281, the case seeking review of the D.C. Circuit’s decision invalidating President Obama’s 2012 recess appointments to the NLRB. The challenge to the appointments was brought by the U.S. Chamber of Commerce’s National Chamber Litigation Center. The cert papers were distributed […]
Reading The Tea Leaves On Shelby County v. Holder
Based on today’s decision in Maryland v. King, there are now three opinions outstanding from the February sitting (Shelby County v. Holder, Peugh v. United States, and American Express Co. v. Italian Colors Restaurant), and three Justices who have no majority opinion for that sitting yet (the Chief Justice, Justice Scalia, and Justice Sotomayor). Making […]
Noel Canning Recess Appointments Case — Amici Weigh In
NLRB v. Noel Canning, 12-1281, the case seeking Supreme Court review of the validity of President Obama’s 2012 recess appointments to the NLRB, is now on a glide path for a June Conference (setting up a decision whether to hear the case before the Justices go into recess). Amici are now weighing in on whether, […]
Noel Canning Recess-Appointments Case: Battle Is Joined
Respondent in NLRB v. Noel Canning, 12-1281, the case seeking review of the D.C. Circuit’s judgment invalidating the President’s recess appointments of several NLRB members, has filed its brief respecting certiorari–five days early, no less, probably to ensure the Court has time to consider the case before leaving for summer recess. As anticipated, respondent does […]
Further Thoughts on the Third Circuit’s Recess Appointment Decision
One of the frequently explanations for why the Supreme Court prefers to let circuit splits develop is that the Justices benefit from having the views of many court of appeals judges before addressing a subject themselves. Today’s Third Circuit opinion in NLRB v. New Vista Nursing & Rehabilitation serves that role admirably, adding two new […]