Opinions and Orders of the Court

Kentucky v. King, 09-1272, May 16, 2011

The Fourth Amendment generally bars warrantless searches, except under certain exigent circumstances, such as the imminent destruction of evidence. An exception to the exception applies when the police create the exigency by acting or threatening to act unconstitutionally. In this case, the Kentucky Supreme Court applied an additional standard that asks if the police intended to create the exigency, or did so with the bad faith intention of avoiding the warrant requirement. Justice Alito wrote the majority opinion (8-1, J. Ginsburg filing a dissent) holding that the police-created exigency doctrine is not open to a subjective analysis of the officer’s state of mind, but only to an objective determination of whether or not the police caused the exigency by violating the Fourth Amendment.

The opinion is discussed in The Volokh Conspiracy, Crime and Consequences, and SCOTUS Blog.

[Cockle Printing assisted the preparation of briefs in this case.]

CIGNA Corp. v. Amara, 09-804, May 16, 2011

Respondents successfully sued CIGNA under the Employee Retirement Income Security Act (ERISA), claiming that CIGNA revised its employees’ pension plan without following ERISA’s notice requirements. Justice Breyer, writing for the majority (8-0, J. Scalia, joined by J. Thomas, filing a concurring opinion, J. Sotomayor not participating) remanded the case with instructions on how to apply the remedies available under ERISA’s “equitable relief” provision, as detailed in the opinion. The opinion also held that a plan summary cannot be taken as a term of the plan itself.

The opinion is discussed in National Underwriter (declaring victory for plan managers), Pension Rights Center (declaring victory for beneficiaries), and SCOTUS Blog (remaining neutral as ever).

Schindler Elevator Corp. v. United States ex rel. Kirk, 10-188, May 16, 2011

The False Claims Act allows private individuals to sue on behalf of the US government to recover fraudulent payments made by the government, and to retain a portion of the recovery for themselves. However, the Act bars these qui tam recoveries if the claim is based upon information found in the “public disclosure” of a government “report.” Justice Thomas’s majority opinion (5-3, J. Ginsburg, joined by J. Breyer and J. Sotomayor, filing a dissent, J. Kagan not participating) dismissed the relator’s claim holding that information obtained by a Freedom of Information Act request constitutes a public disclosure under the Act.

The opinion is discussed in SCOTUS Blog, ACS Blog, and ContractsProf Blog.

[Cockle Printing assisted the preparation of an amicus brief in this case.]

Bedford v. Bobby, 10-10460, May 17, 2011

The Court declined to stay the Petitioner’s execution and denied his petition for writ of certiorari. Later that day, the State of Ohio executed Bedford. The Columbus Dispatch published an account of the execution, relating difficulties with the injection procedure.  

Gray v. Mississippi, 10-10463, May 17, 2011

The Court declined to stay the Petitioner’s execution and denied his petition for writ of certiorari. Later that day, Mississippi executed Bedford. Reuters published this account of Gray’s execution and the brutal details of his crime.


Law Blogs

Brad Joondeph in ACA Litigation Blog, Sunday, May 15, 2011, Activity, Inactivity, and the Power to Regulate Interstate Commerce

Continuing his stellar work as THE health-care-law-litigation clearinghouse, Joondeph offers this piece that dispassionately sorts out the constitutional basis of the action-inaction debate. And never once mentions broccoli. 

Mike Dorf in Dorf on Law, Tuesday, May 17, 2011, You Gotta Keep Insider Traders Way Down in the Hole

Last week a New York jury found hedge fund manager Raj Rajaratnam guilty of 14 securities-related charges, including insider trading. The prosecution’s case turned on hours of wire tap recordings. (Here is a story in Forbes.) Dorf examines the potential effect this case might have on future white collar scofflaws–through the lens of HBO’s The Wire–and asks if this kind of prosecution might not push rouge traders to murder their co-conspirators. I think he was kidding.

Neomi Rao in The Volokh Conspiracy, Three Concepts of Dignity

Excerpting her article in the Notre Dame Law Review, Rao offers a week-long series of posts investigating the notion of individual dignity as applied in legal and political thought.

Law in the Media

Dahlia Lithwick in Slate, May 17, 2011, Mommy Hates Daddy, and You Should Too

Bitterly contested child custody disputes often feature allegations that a parent is intentionally causing the child to reject the other parent. Lithwick reviews the battle to include so-called parental alienation syndrome (PAS) in the DSM-V–due to be published in 2013–noting that PAS has little objective scientific support, but nevertheless continues to be an effective strategy to attack domestic violence reporters in court.

Adam Liptak in The New York Times, Monday, May 16, 2011, Weighing the Place of a Judge in a Club of 600 White Men

Describing the Sixth Circuit as “surely the most dysfunctional federal appeals court in the nation,” Liptak outlines the court’s decision to allow the continued membership of U.S. District Judge George C. Paine II at the Belle Meade Country Club in Nashville, Tennessee. [The voting members of the club are all white and all male; presumably the parties appearing in Judge Paine’s bankruptcy court are not.]

Some interesting commentary on the failed nomination of Goodwin Liu was offered this week by…

Dahlia Lithwick in Slate (saying Republicans are hypocrites), Ed Whelan in the National Review Online (saying Lithwick is sloppy), and Frank James at NPR.