Bench Memos

This Week at the Supreme Court

It’s procedure week at the Supreme Court. On Monday, the Court starts by considering the law-of-the-case doctrine and the standard of review for statute-of-limitations defenses not raised at or before trial in Musacchio v. United States. After that, the Court turns to a circuit split about when the statutory limitations period begins to run on an employee discrimination case based on constructive discharge in Green v. Brennan. Does the limitations period begin at the time of the employee’s resignation, or does it run at the time of the allegedly discriminatory act? Five circuits say the former; three say the latter.

Tuesday begins with Merrill Lynch v. Manning, which asks whether the Security Exchange Act provides federal subject-matter jurisdiction over state-law claims asserted under the Act. Then, in Menominee Indian Tribe of Wi. v. United States, the Court will consider whether the lower court erred by refusing to grant equitable tolling on yet another statute of limitations.  

The Court will hear only one (no doubt riveting) argument on Wednesday, Gobeille v. Liberty Mutual Insurance. The question before the Court will be whether the Employee Retirement Income Security Act pre-empts a state law health care database law as applied to the third-party administrator for a self-funded ERISA plan.

Don’t worry, next week should be much more interesting, when the Court takes up two of the most important cases of the Term, Evenwel v. Abbott and Fisher v. University of Texas at Austin (Fisher II). Stay tuned!

Jonathan Keim — Jonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...

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