Thursday round-up

Yesterday the court heard oral argument in two cases. The first was Turner v. United States, which involves the scope of the prosecution’s duty to disclose exculpatory evidence under the Brady rule in a 1984 Washington, D.C., murder case. Amy Howe analyzes the argument for this blog. Coverage comes from Robert Barnes and Keith Alexander in The Washington Post, who report that “the two former prosecutors on the Supreme Court — Justices Sonia Sotomayor and Samuel A. Alito Jr. — asked detailed questions about trial strategy, recanted testimony and the extended jury deliberations that came after the sensational six-week trial.” Additional coverage comes from Adam Liptak in The New York Times.

Yesterday’s second argument today was in Honeycutt v. United States, which asks whether co-conspirators can be jointly and severally liable for forfeiture of the reasonably foreseeable proceeds of a drug conspiracy. Rory Little has this blog‘s argument analysis.

In Expressions Hair Design v. Schneiderman, a unanimous court ruled yesterday that New York’s credit-card surcharge ban regulates speech; the court remanded the case to the court of appeals to determine whether the ban violates the First Amendment. Ronald Mann analyzes the opinion for this blog. Coverage comes from Adam Liptak in The New York Times, David Savage in the Los Angeles Times, Greg Stohr at Bloomberg, and Daniel Fisher at Forbes, who notes that the decision “further strengthens the once-controversial Supreme Court doctrine extending First Amendment protection to corporate, as opposed to individual speech.” Ruthann Robson looks at the decision at the Constitutional Law Prof Blog, as does Brian Wolfman at Public Citizen’s Consumer Law & Policy Blog, who calls the gist of the opinion “a no-muss, no-fuss analysis if ever there was one.”

At NPR, Nina Totenberg reports on Tuesday’s decision in Moore v. Texas, in which the justices prohibited Texas from relying on an outdated standard in determining whether a defendant’s intellectual disability precludes him from being executed, noting that the “ruling is likely to force a reexamination of about two dozen death sentences for inmates in Texas.” At his eponymous blog, William Goren also discusses Moore, noting that “this is the third decision in a matter of a few weeks coming down in favor of persons with disabilities.” Another look at Moore comes from John Donahue at Stanford Law School’s Legal Aggregate blog, who observes that the case “serves as a reminder of the abundant pathologies that mar capital punishment in the United States.”

At The Hill, Rebecca Savransky reports that a “group of liberal organizations are planning protests this weekend against President Trump’s Supreme Court nominee, Neil Gorsuch.” In The Wall Street Journal, Byron Tau reports on the prospects of a filibuster of the nomination by Democratic senators. Analysis of the likely outcome of a filibuster comes from Paul Kane in The Washington Post and from Jay Willis in GQ. In a column for The New York Times, Linda Greenhouse maintains that if Gorsuch “wasn’t the least forthcoming nominee ever to appear at a confirmation hearing, it’s hard to imagine one who could be less forthcoming while still breathing.” Additional commentary on the nomination comes from Dahlia Lithwick in Slate and Nico Lang in Salon.

Briefly:

  • At the Special Education Law Blog, Jim Gerl discusses last week’s decision in Endrew F. v. Douglas County School District, which held that the Individuals with Disabilities Education Act requires a school to offer an “individualized education program” reasonably calculated to allow the student to progress appropriately in light of the child’s circumstances; he wonders whether the student or the school district actually prevailed in the case and suggests that the “real answer to the question will turn on how hearing officers and courts apply the new standard to actual fact patterns.”
  • At the ImmigrationProf Blog, Nancy Morawetz and Sejal Zota discuss “practical questions about how criminal defense lawyers handle cases of clients charged with offenses that could lead to mandatory deportation, and the role of the courts, prosecutors and defense lawyers in obtaining appropriate outcomes” arising out of Tuesday’s oral argument in Lee v. United States.
  • Howard Fischer of Capitol Media Services (via the Arizona Capitol Times) reports that Arizona has filed a cert petition asking the court to “overturn rulings by the 9th U.S. Circuit Court of Appeals, which has concluded that those in the Deferred Action for Childhood Arrivals program are in this country legally” and that “Arizona has no right to unilaterally decide the issue for itself.”
  • The National Security Law Podcast features a discussion of “the ins-and-outs of two Guantanamo military commissions cases currently seeking Supreme Court review: the al-Nashiri case (which could give the Court a chance to determine whether an armed conflict existed with al Qaeda prior to 9/11) and Bahlul (which could give the Court a chance to settle, at long last, whether the commissions can adjudicate offenses that do not count as violations of the law of armed conflict).”

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