Ross v. Blake - Post-Decision SCOTUScast

SCOTUScast 7-28-16 featuring Daniel McConkie
Daniel McConkie July 28, 2016

On June 6, 2016, the Supreme Court decided Ross v. Blake. While being moved to a prison’s segregation unit, Maryland inmate Shaidon Blake was assaulted by James Madigan, one of two guards moving him. Blake subsequently sued Madigan and fellow guard Michael Ross, alleging excessive force and failure to take protective action. A jury found Madigan liable, but Ross objected that Blake had failed to exhaust “such administrative remedies as are available” before filing suit, as required under the Prison Litigation Reform Act of 1995 (PLRA). The district court agreed with Ross and dismissed the suit against him, but the U.S. Court of Appeals for the Fourth Circuit reversed, holding that “special circumstances” can excuse a failure to comply with administrative procedural requirements—particularly where the inmate reasonably, even though mistakenly, believed he had sufficiently exhausted his remedies. 

By a vote of 8-0, the Supreme Court vacated the judgment of the Fourth Circuit and remanded the case. Justice Kagan delivered the opinion of the Court, holding that the Fourth Circuit’s unwritten “special circumstances” exception was inconsistent with the text and history of the PLRA—though the Court left open on remand the question whether an administrative remedy was in fact “available” to Blake. Justice Kagan’s majority opinion was joined by the Chief Justice and Justices Kennedy, Ginsburg, Alito, and Sotomayor. Justice Thomas filed an opinion concurring in part and concurring in the judgment. Justice Breyer filed an opinion concurring in part.

To discuss the case, we have Daniel McConkie, who is Associate Professor of Law at Northern Illinois University College of Law.

Kirtsaeng v. John Wiley & Sons - Post-Decision SCOTUScast

SCOTUScast 7-28-16 featuring Christopher Newman
Christopher Newman July 28, 2016

On June 16, 2016, the Supreme Court decided Kirtsaeng v. John Wiley & Sons. Academic textbook publisher John Wiley & Sons, Inc. (Wiley) owns the American copyright for textbooks and often assigns its rights to its foreign subsidiaries to publish, print, and sell its textbooks abroad. Supap Kirtsaeng, a Thai citizen who came to the United States in 1997 to study mathematics, asked friends and family in Thailand to buy the English-language versions of his textbooks in Thailand, where they were cheaper and mail them to him. Kirtsaeng would then sell these textbooks in America, reimburse his friends and family, and make a profit.

In 2008, Wiley sued Kirtsaeng for copyright infringement. He ultimately prevailed before the U.S. Supreme Court on the question whether the “first sale” doctrine--under which the owner of a “lawfully made” copy can dispose of it without permission of the copyright owner--applies to copies of a copyrighted work lawfully made abroad. On remand, the U.S. Court of Appeals for the Second Circuit ruled that the “first sale” doctrine provided Kirstaeng with a complete defense to Wiley’s infringement claim. Kirtsaeng thereafter sought an award of attorneys’ fees pursuant to Section 505 of the Copyright Act, which allows the award of fees to a prevailing party at the court’s discretion. The federal Courts of Appeals have applied several different standards in resolving such fee requests. Here, the Second Circuit affirmed the denial of attorneys’ fees to Kirtsaeng based on the district court’s view that Wiley had taken an “objectively reasonable” position in the underlying litigation.

The U.S. Supreme Court again granted certiorari, to address the following question: What is the appropriate standard for awarding attorneys’ fees to a prevailing party under section 505 of the Copyright Act?

By a vote of 8-0, the Supreme Court vacated the judgment of the Second Circuit and remanded the case. Justice Kagan delivered the opinion for a unanimous Court, which held that (1) when deciding whether to award attorney's fees under the Copyright Act’s fee-shifting provision, a district court should give substantial weight to the objective reasonableness of the losing party's position, while still taking into account all other circumstances relevant to granting fees; and (2) while the Second Circuit properly calls for district courts to give "substantial weight" to the reasonableness of a losing party's litigating positions, its language at times suggests that a finding of reasonableness raises a presumption against granting fees, and that goes too far in cabining the district court's analysis.

To discuss the case, we have Christopher M. Newman, who is Associate Professor of Law at George Mason University School of Law.

Class Action in Consumer Finance Agreements - Podcast

Litigation Practice Group Podcast
Jason Johnston, Thaddeus King July 27, 2016

The Federal Arbitration Act (FAA), passed in 1925, generally requires courts to look favorably upon all arbitration agreements. In 2011, the Supreme Court upheld an arbitration agreement in a contract for mobile phone services that contained a class action ban. The court ruled that a state law that prevented the class action ban from being enforced was “an obstacle to the accomplishment of the FAA’s objectives.”

However, Congress passed the Dodd-Frank Act in 2010, which authorizes the Consumer Financial Protection Bureau (CFPB) to study arbitration agreements in consumer contracts and limit or prohibit them if doing so would be in the public interest and for the protection of consumers. In May 2016, the CFPB issued a proposed rule that would ban arbitration agreements that acted to prevent class action lawsuits and would further establish certain reporting requirements for other arbitrations that are filed between consumers and providers.

Our experts discussed this proposed rule, including the history that led us to this point and the potential impact it will have if it is finalized.


  • Prof. Jason Johnston, Henry L. and Grace Doherty Charitable Foundation Professor of Law, University of Virginia School of Law 
  • Thaddeus King, Officer, Consumer Banking,The Pew Charitable Trusts

The Opioid Epidemic: Problem and Prescription - Podcast

Criminal Law & Procedure Practice Group Podcast
Shane Dana, Drew Hudson, James Baehr July 27, 2016

Over 75 Americans die every day of an opioid overdose (both prescription drug opioids and heroin), a number that has quadrupled since 1999. Meanwhile, the amount of prescription drug opioids (oxycodone, hydrocodone and their ilk) sold in the United States has grown fourfold during the same period.

Our experts explored the scope of this growing problem, and the proposed legislative solution, the Comprehensive Addiction and Recovery Act signed into law by President Obama on July 22, 2016.


  • Shane Dana, Federal Bureau of Investigation; Case Agent, Chasing the Dragon Project
  • Drew Hudson, Legislative Counsel, United States Senate Judiciary Committee
  • Moderator: James Baehr, Assistant United States Attorney, Eastern District of Louisiana

2016 Annual Supreme Court Round Up - Event Audio/Video

Washington, DC Lawyers Chapter
Miguel Estrada, Douglas R. Cox July 26, 2016

On July 22, 2016, Miguel Estrada of Gibson Dunn & Crutcher LLP delivered the Annual Supreme Court Round Up at The Mayflower Hotel in Washington, DC.


  • Mr. Miguel Estrada, Gibson Dunn & Crutcher LLP
  • Introduction: Mr. Douglas R. Cox, Gibson Dunn & Crutcher LLP

The Mayflower Hotel
Washington, DC