What's New at the U.S. Supreme Court this term??

The U.S. Supreme Court has begun hearing cases in their October, 2008 term. In this article I will try to summarize some of the cases that will come before the Court this term. Keep an eye on these when the Court announces its decisions later on this year.

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Wyeth v. Levine (06-1249)
Oral argument: Nov. 3, 2008
Appealed from: Supreme Court of Vermont (Jan. 18, 2008)

ISSUES INVOLVED: DRUGS, FOOD AND DRUG ADMINISTRATION, PREEMPTION, PRODUCTS, LIABILITY, FEDERALISM, FEDERAL FOOD, DRUG, AND COSMETIC ACT

BACKGROUND FACTS OF THE CASE.

Diane Levine was treated with the drug Phenergan for severe migraine headaches, but the drug was improperly administered. She developed severe gangrene in the arm, and ultimately, part of her arm had to be amputated. Levine sued Wyeth, the manufacturer of Phenergan in Vermont Superior Court and in the Vermont Supreme Court on claims of negligence and product liability. She based her claim on the fact that the label on the drug was inadequate in warning consumers about its risks. With both lower courts ruling in favor of Wyeth, this case gives the Supreme Court an opportunity to further define the federal preemption doctrine by clarifying whether a drug manufacturer can be liable under state law after complying with the labeling requirements of the Food and Drug Administration. Stakeholders on both sides argue that the outcome of this case will have a direct impact on the kind of information included on drug labels and as such, has serious implications for patient safety and public health.

Continues: http://www.law.cornell.edu/supct/cert/06-1249.html

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Negusie v. Mukasey (07-499)
Oral argument: Nov. 5, 2008
Appealed from: United States Court of Appeals, Fifth Circuit (May 15, 2007)

REFUGEE, ASYLUM, DEPORTATION, PERSECUTORY BAR, IMMIGRATION AND NATIONALITY ACT

Daniel Negusie was conscripted into the Eritrean Army, but refused to fight. Because of this, he was sent t0 a military prison camp for two years. After two years confinement, he was made a prison guard, and spent four years assigned to keeping watch over other prisoners. He was required to take prisoners out into the sun, and deny them showers and fresh air. But he was frequently reprimanded for refusing to do what he was assigned to do. Eventually, Negusie escaped to the U.S., where an immigration judge denied his application for protection from deportation. The judge ruled that because he held a position in the military that required him to persecute prisoners, that he was not eligible for protection from deportation under the Immigration and Naturalization Act, not withstanding his service as a guard and his probable imprisonment and torture if he was returned to Eritrea. The Board of Immigration Appeals and the Fifth Circuit Court Appeals affirmed the Immigration Judge's decision. On certiorari, Negusie argues that the INA's persecutor bar is not meant to apply to individuals who involuntarily took part in the persecution of others. Attorney General Mukasey responds that the bar contains no voluntariness requirement, and that the Court should defer to the BIA's interpretation of the INA. The Court's decision could affect the international community's approach to human rights; it will clarify whether the U.S. Attorney General has discretion to consider an individual's degree of moral culpability before granting or denying him refuge, or deciding to deport him to a country where he faces danger, which is considered a violation of core human rights principles.

Continues: http://www.law.cornell.edu/supct/cert/07-499.html

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Ysursa v. Pocatello Education Association (07-869)
Oral argument: Nov. 3, 2008
Appealed from: United States Court of Appeals, Ninth Circuit (Jan. 3, 2008)

FIRST AMENDMENT, FREE SPEECH, STANDARD OF REVIEW, POLITICAL CONTRIBUTIONS, REGULATIONS, PAYROLL DEDUCTIONS

In 1983, the Idaho Legislature passed the Voluntary Contributions Act which which prevents state political subdivisions from making payroll deductions for political activities. The Pocatello Education Association and other organizations challenged the constitutionality of the statute, arguing that it impermissibly burdens free speech. The United States Court of Appeals for the Ninth Circuit found the state does not exercise sufficient control of local governments to allow it to regulate speech through its systems. It therefore found the statute unconstitutional. In this case, the Supreme Court will decide whether a state exercises sufficient control over local governments to allow it to regulate speech through their systems.

This decision will impact whether the Court evaluates state government regulations of local governments using strict scrutiny or a "reasonableness" standard of review.

Continues: http://www.law.cornell.edu/supct/cert/07-869.html

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United States v. Eurodif S.A., et al. (07-1059); USEC, Inc., et al. v. Eurodif S.A., et al. (07-1078)
Oral argument: Nov. 4, 2008
Appealed from: United States Court of Appeals for the Federal Circuit (Sep. 9, 2005)

ANTI DUMPING, CHEVRON DEFERENCE, URANIUM, SALE OF MERCHANDISE, SALE OF SERVICES

The anti dumping statute requires the Department of Commerce ("Commerce") to impose a duty on "foreign merchandise . . . sold in the United States at less than its fair value." Nuclear utilities in the United States contracted with the French company Eurodif S.A. ("Eurodif") for low enriched uranium ("LEU"). The utilities supplied Eurodif with feed uranium and paid Eurodif to produce LEU from the feed uranium. Commerce taxed the LEU under the anti dumping statute, because it understood such agreements to be contracts for the sales of merchandise. The Court of International Trade ("CIT") reversed and held that the agreements were contracts for the sales of services. The U.S. Court of Appeals for the Federal Circuit ("Federal Circuit") upheld the CIT's reversal. In these consolidated cases, the U.S. Supreme Court takes up the question of whether the Federal Circuit was required to defer to Commerce's interpretation of the antidumping statute. This is the first anti dumping case the Supreme Court will hear.

Continues: http://www.law.cornell.edu/supct/cert/07-1059.html

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FCC v. Fox Television Stations (07-582)
Oral argument: Nov. 4, 2008
Appealed from: United States Court of Appeals for the Second Circuit (June 4, 2007)

SPEECH, OBSCENITY, FIRST AMENDMENT, ADMINISTRATIVE LAW, FEDERAL COMMUNICATIONS COMMISSION

Beginning in 1978 and lasting until 2003, the Federal Communications Commission ruled and enforced a policy of regulating indecency in broadcast media with a standard that did not include as indecent the broadcast of a single, fleeting expletive. However in 2003, the FCC changed its policy and began to enforce the rule against stations the allowed the uttering of a single, fleeting expletive. The issue in this case is whether an expletive must be repeated in order for the FCC to be able to find it "indecent." Fox Broadcasting, NBC, CBS, ABC and the Center for Creative Voices argue that repetition should be a requirement for ruling that a broadcast transmission is indecent. They contend in their Certiorari Writ that the switch in policy is arbitrary and violates the First Amendment Freedom of Speech clause of the U.S. Constitution. The U.S. Court of Appeals for the Second Circuit agreed with the networks that the new FCC standard was arbitrary and capricious, but did not rule on whether the new policy violates the First Amendment. The Supreme Court's ruling in this case is important because it is the first time the Supreme Court is reaching the issue of indecency in broadcasting since its 1978 ruling in FCC v.
Pacifica Foundation, in which it ruled that the FCC had the authority to regulate indecency in broadcast media.

Continues: http://www.law.cornell.edu/supct/cert/07-582.html