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Friday, June 17, 2005

What to look for Monday...

My guess is as good as anyone's on what will be released this coming Monday, but here goes:
  1. I think Kelo is almost certain to come down. It was argued on February 22, and given the prior precedent of Midkiff, it just wasn't that difficult a case. That said, the delay could be attributable to the possibility that the Court is working out some adjustment to the "Just Compensation" formula which could provide some measure of relief. If that were so, the real winner wouldn't be the Kelo's, New London or Columbia University, but would be Professor Tom Merrill, who argued for such a result in his amicus brief to the Court.
  2. Second, Orff is also almost certain to come down, but who cares...question presented: whether farmers are "intended" third-party beneficiaries of their irrigation district's water service and repayment contracts with the U.S. Bureau of Reclamation and, therefore, entitled to sue the Bureau for breach thereof, as the Federal Circuit has long held, or merely "incidental" third-party beneficiaries and, therefore, not so entitled, as the Ninth Circuit holds in the decision below. I have not read any materials on this case, know nothing about it, but I'm predicting the Ninth Circuit gets reversed. We'll see if conventional wisdom holds.
  3. Rompilla v. Beard, a case dealing with jury instructions and whether a life-without-parole instruction must be given. This is a difficult case, likely to be close, and presenting a number of questions beyond the instruction question. Therefore, it is possible that despite its January argument date, we might see this one put off.
  4. Castle Rock, which is a revisiting of the famous Deshaney case (Poor Joshua) is another decent bet to come down.
  5. Exxon and Ortega, which present an interesting civil procedure question (Whether the supplemental jurisdiction statute, 28 U.S.C. ยง 1367, authorizes federal courts with diversity jurisdiction over the individual claims of named plaintiffs to exercise supplemental jurisdiction over the claims of absent class members that do not satisfy the minimum amount-in-controversy requirement?) should also be considered a strong possibility.
  6. Finally, the Grokster (file sharing) and VanOrden (commandments) cases are possibilities to be released, but probably will be held over for at least a bit longer.

So if I had to bet, I would say Kelo, Orff, Exxon-Ortega and Castle Rock will be the decisions we are reading Monday. But then again, I always lose when I bet...

UPDATE: I ALWAYS LOSE!

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