Monday, January 12, 2009

Pondering the Supreme Court Delay

So the Supreme Court's latest order lists are published, and our case is still not there: cert neither granted nor denied. Presumably, the docket shortly will show the scheduling of discussion at another conference of the justices -- a seventh time around.

Scratching our heads, we've done a more thorough study of the Court's orders in recent years. It turns out that there is a category of a dozen or so appeal petitions that went to as many conferences as the one here. What they seem to have in common is that cert was denied but the majority held back until one or more dissenting opinions could be issued. Maybe that's what's going on here.

Or not.

The wait continues.


Anonymous moxie said...

We're now on the docket for the conference of 1/16/09.

12:21 PM  
Anonymous Anonymous said...

For the 2007-2008 term of the Supreme Court, I was able to locate six cases where there were six or more instances of petitions for certiorari being re-distributed for conference. Three petitions were denied and three were granted. The cases that were granted were 05-11273, 06-5244, and 06-5244. Interestingly, the three cases that were granted were between individuals, while the three that were denied were against entities of the United States (Attorney General, President, United States).

6:35 PM  
Anonymous moxie said...

Anonymous: Two of the three cases you listed have the same number; is there a third case with a different number?

The two different cases that were cited were first presented to the Court for cert many months apart but kept getting rescheduled until they finally fell on the same conference & were decided on the same date, with the Court instructing the relevant Circuit to amend prior decisions based on the Supreme Court's then-recent Kimbrough decision (on unequal sentencing for those convicted on crack cocaine/powder cocaine charges). So these two cases were definitely examples of the Court delaying cert rulings until a more comprehensive case came along.
In our case, it turns out that the Court wasn't waiting for the CNN copyright case (as i had speculated); I sure hope they aren't waiting for the Google copyright case!

5:50 AM  
Anonymous moxie said...

Some miscellaneous cert orders appeared on Friday, but again no mention of us. The Court is closed Monday & Tuesday (for MLK and the inauguration), so i don't know if the posting of the regular orders list will be delayed from Monday to Wednesday.

4:48 AM  
Anonymous moxie said...

We're not on the list today for orders from the conference of last Friday. I did notice a long list of cases that, like us, had had many rescheduled conferences. They were all waiting for a just-decided case, so the Court finally ruled on them (some had been waiting for more than a year) by vacating earlier decisions & remanding. So again we wait.

6:32 PM  
Anonymous moxie said...

Now on the schedule for the 1/23 conference.

7:39 AM  
Anonymous Anonymous said...

It is becoming increasingly probable that the Supreme Court is waiting for a similar case to come through the pipeline before deciding on Cert. I believe I have found that case. It is Docket No. 07-1437, Carlsbad Technology v HIF Bio, Inc., set to be argued February 24, 2009. It has nothing to do with Copyrights, but it is right on point as to subject matter jurisdiction. Here are the questions presented:

In Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357 (1988), this Court held that district courts could remand removed claims upon deciding not to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c). However, in Powerex Corp. v. Reliant Energy Servs., Inc., 127 S. Ct. 2411, 2416 (2007), the Court stated that “it is far from clear . . . that when discretionary supplemental jurisdiction is declined the remand is not based on lack of subject-matter jurisdiction for purposes of § 1447(c) and § 1447(d)” and noted that “[w]e have never passed on whether Cohill remands are subject-matter jurisdictional for purposes of post-1988 versions § 1447(c) and § 1447(d).” Construing Powerex as leaving the question open, the Federal Circuit held that a remand based on declining supplemental jurisdiction can be colorably characterized as a remand based on lack of subject matter jurisdiction, thus disagreeing with the nine other federal courts of appeals that have construed Cohill as distinguishing between remands for lack of subject matter jurisdiction and remands based on declining to exercise subject matter jurisdiction that already exists. Thus, this petition presents the question posed but left unanswered in Powerex that is now the subject of a direct conflict among the circuits:

1. Whether a district court’s order remanding a case to state court following its discretionary decision to decline to exercise the supplemental jurisdiction accorded to federal courts under 28 U.S.C. § 1367(c) is properly held to be a remand for a “lack of subject matter jurisdiction” under 28 U.S.C. § 1447(c) so that such remand order is barred from any appellate review by 28 U.S.C. § 1447(d).


7:48 AM  
Anonymous moxie said...

AND, this case was first at conference on 9/29/08 (also our first conference), was rescheduled to 10/10/08 (the time frame when the Court was asking us for additional filings) & cert was granted for them at that 10/10 conference (which also happens to be my birthday, lol).
So, A, i think you have solved the mystery! If so, we will be rescheduled many times more & possibly for months. The big question: If the Court rules in our favor on the jurisdiction issue, will they leave it at that (and send it back to the Appeals Court to rule on the objectors' questions) or also rule on the additional settlement questions that were presented?

10:08 AM  
Anonymous Anonymous said...


Another Copyright case that was due to begin today in a Federal District Court has been settled by the parties. Here is the A.P. story:

GateHouse, NY Times Co. settle copyright lawsuit
January 26, 2009 2:35 PM EST
BOSTON - A settlement has been reached in a closely watched lawsuit brought after The Boston Globe's Web site began posting headlines and lead sentences from another publisher's site, a court official said Monday.

A clerk for U.S. District Judge William Young said GateHouse Media Inc., which owns several Massachusetts dailies, and The New York Times Co., the parent company of The Boston Globe, reached an agreement during the weekend.

The deal came just before the case was set to go to trial Monday in federal court.

Details of the settlement were not immediately announced. Lawyers for GateHouse and the New York Times Co. declined to comment Monday morning. Catherine Mathis, a spokeswoman for the New York Times Co., did not immediately return a call seeking comment.

News organizations and bloggers had said the case could have far-reaching implications for determining how much content one news organization or Web site can use from another.

In its lawsuit, filed last month, GateHouse said the Globe's new "Your Town" Web sites used GateHouse material without permission. GateHouse calls its community Web sites "Wicked Local" sites.

GateHouse claimed's actions violated copyright and trademark laws. Besides publishing headlines and lead sentences, it said, provided links that sent readers directly to "Wicked Local" stories. That meant readers bypassed ads posted on GateHouse home pages and could be confused as to the source of the original reporting, GateHouse claimed in its complaint.

GateHouse, based in Fairport, N.Y., owns 97 daily newspapers, 400 other publications and 260 related Web sites reaching more than 10 million people in 21 states. Its Massachusetts publications include The Patriot Ledger of Quincy, The Enterprise of Brockton, the Newton TAB and the Daily News Tribune of Waltham.

11:27 AM  

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