I. Opinions. This Report summarizes opinions issued on June 11 and 14, 2018 (Part I).

Transcription

1 This Report summarizes opinions issued on June 11 and 14, 2018 (Part I). I. Opinions VOLUME 25, ISSUE 13 JUNE 15, 2018 Husted v. A. Philip Randolph Institute, By a 5-4 vote, the Court held that Ohio s process for removing people from its voter rolls is consistent with the National Voter Registration Act (NVRA), as amended and clarified by the Help America Vote Act (HAVA). In 1993, Congress enacted the NVRA to increase voter registration and to ensure that accurate and current voter registration rolls are maintained. 52 U.S.C (b). In furtherance of the latter objective, the NVRA requires states to conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters by reason of, among other things, a change in the residence of the registrant (a)(4). Notably, however, a person may not be removed by reason of the person s failure to vote (b)(2) (the Failure-to-Vote Clause). The NVRA prescribes requirements a state must meet to remove a person based on a change in residence. Most importantly, it directs states to provide notice to persons who may have changed residence via a postage prepaid and pre-addressed return card, sent by forwardable mail, containing statutorily mandated information (d). If a person does not return the card, subsection (d) provides that a state shall remove that person from its voter rolls if the person fails to vote or confirm residency for a period covering two general elections for federal office (usually about four years). Since 1994, Ohio has attempted to identify voters who have lost their residency qualification in two ways: (1) using change-of-address information supplied by the Postal Service, as permitted by 20507(c)(1); and (2) sending notices to persons who have not engaged in any voter activity broadly defined to include casting a ballot in any election, signing a petition, filing a voter registration form, and updating a voting address for two consecutive years. If no card is returned, Ohio follows the method laid out in subsection (d), although it requires four consecutive years of nonvoting prior to removal. Respondents, an Ohio resident and two advocacy groups, challenged this Supplemental Process as violating the NVRA and HAVA. The district court rejected their arguments, holding that the Supplemental Process mirrors the procedures established by the NVRA and does not violate the Failure-to-Vote Clause because it does not remove anyone solely for failure to vote. A divided Sixth Circuit panel reversed, finding that the Supplemental Process violates the Failure-to-Vote Clause because Ohio sends change-of-residence notices based solely on a person s failure to vote. In an opinion by Justice Alito, the Court reversed. The Court read the Failure-to-Vote Clause to simply forbid[] the use of nonvoting as the sole criterion for removing a registrant. Congress clarified that it intended this meaning, declared the Court, when it provided in HAVA that no registrant may be removed solely by reason of a failure to vote (emphasis added). Accordingly, a State violates the Failure-to-Vote Clause only if it removes registrants for no reason other than their failure to vote. The Supplemental Process does not violate this mandate, concluded the Court, because it removes registrants only if they have failed to vote and have failed to respond to a notice. The Court also pointed to the Failure-to-Vote Clause s directive that removal shall not occur by reason of a person s failure to vote, which denotes some form of causation. But subsection (d) expressly authorizes a removal process that takes into account failure to vote. The only causation consistent with subsection (d) is sole causation. 2018, NAAG, 1850 M Street, NW 12 th Floor Washington, DC (202)

2 The Court then dismissed alternative interpretations of the Failure-to-Vote Clause. Respondents had argued that the Failure-to-Vote Clause permits consideration of nonvoting only to the extent that subsection (d) requires that is, only after a registrant has failed to mail back a notice. And they dismissed language added to the Failure-to-Vote Clause by HAVA that removal shall not result by reason of a person s failure to vote, except that nothing in this paragraph may be construed to prohibit a State from using the procedures described in subsections (c) and (d) as merely an exception to the general rule forbidding the use of nonvoting. The Court rejected these arguments for three reasons. First, the new language says that nothing in this paragraph may be construed, which means it sets out a rule of interpretation, not an exception. Second, no sensible person would have read the Failure-to-Vote Clause as originally written to prohibit what subsections (c) and (d) plainly permit. Third, respondents interpretation cannot be reconciled with the previously discussed language in HAVA that stating that no registrant may be removed solely by reason of a failure to vote. Indeed, added the Court, [t]here is no plausible reason why Congress would enact the provision that respondents envision, whereas under its interpretation HAVA clarified what had been on ongoing dispute about the provision s meaning. Nor, found the Court, are respondents correct that its interpretation would make the Failure-to-Vote provision superfluous. To the contrary, the Court s interpretation prohibits the once-common state practice of removing registered voters simply because they failed to vote for some period of time. The Court rejected other arguments that, it said, boil down to a policy disagreement. Respondents had argued that the notices are often thrown away, which functionally leads to removal of people solely for nonvoting. The Court responded that it has no authority to dismiss the considered judgment of Congress and the Ohio Legislature regarding the probative value of a registrant s failure to send back a return card. Respondents also contended that Ohio s procedure is illegal because the State sends out notices without having any reliable indicator that the addressee has moved (such as Postal Service change-of-address information). The Court disagreed, noting that subsection (d) shows that Congress thought that the failure to vote for a period of two consecutive general elections was a good indicator of change of residence. At bottom, no provision of the NVRA prohibits the [Ohio] legislature from implementing that judgment. So long as the trigger for sending such notices is uniform, nondiscriminatory, and in compliance with the Voting Rights Act, 20507(b)(1), States can use whatever plan they think best. Finally, the Court rejected two arguments raised in the dissents. The principal dissent by Justice Breyer argued that 20507(a)(4) requires states to make a reasonable effort to remove voters, and that Ohio s process violates this requirement by relying on return of notice cards despite the human tendency not to send back cards received in the mail. But, remarked the Court, the NVRA has already blessed the use of notice cards in subsection (d). Finally, the Court dismissed Justice Sotomayor s concerns of disenfranchisement of minority and low-income voters as unsupported by any evidence of discriminatory intent in the record. Justice Thomas filed a concurring opinion. He joined the Court s opinion in full but wrote separately to add that [r]espondents reading of the NVRA would seriously interfere with the States constitutional authority to set and enforce voter qualifications. [B]ecause the power to establish requirements would mean little without the ability to enforce them, the Voter Qualifications Clause also gives States the authority... to verify whether [their] qualifications are satisfied. 2

3 Justice Breyer filed a dissenting opinion, which Justices Ginsburg, Sotomayor, and Kagan joined. In his view, Ohio s Supplemental Process fails to comport with [NVRA s] requirements; it erects needless hurdles to voting of the kind Congress sought to eliminate by enacting the Registration Act. Justice Breyer read the Failure-to-Vote Clause to prohibit target[ing] registered voters for removal from the registration roll because they have failed to vote. Rather, states must identify registrants whose address may have changed, such as by using information from the Postal Service, and only then confirm the change of address by using the notice procedure described in subsection (d). HAVA does not alter this understanding, he said, because it simply clarifies that the use of nonvoting in subsections (c) and (d) does not violate the Failure-to-Vote-Clause. According to the dissent, these federal law are most naturally read to prohibit a State from considering a registrant s failure to vote as part of any process that is used to start, or has the effect of starting, a purge of the voter rolls. Justice Breyer specifically faulted Ohio s process because a forwardable notice card that has not been returned tells the State close to nothing at all, because most people simply do not return cards received in the mail. Justice Breyer further noted that many registered voters fail to vote, but very few registered voters move outside of their county of registration. Given these statistics, failure to vote has no tendency to reveal accurately whether the registered voter has changed residences. Because the Supplemental Process relies on failure to vote to identify voters who might have changed residence, it cannot be reasonable as required by 20507(a)(4). Justice Sotomayor joined the principal dissent but filed a separate dissent as well to emphasize that Congress enacted the NVRA against the backdrop of substantial efforts by States to disenfranchise low-income and minority voters, including programs that purged eligible voters from registration lists because they failed to vote in prior elections. She noted that numerous amici report that the Supplemental Process has disproportionately affected minority, low-income, disabled, and veteran voters. In light of the NVRA s essential purposes [of] increas[ing] the registration and enhanc[ing] the participation of eligible voters in federal elections, she criticized the Court for ignor[ing] the history of voter suppression against which the NVRA was enacted and uphold[ing] a program that appears to further the very disenfranchisement of minority and low-income voters that Congress set out to eradicate. Minnesota Voters Alliance v. Mansky, By a 7-2 vote, the Court held that a Minnesota law that prohibits persons at a polling place from wearing a political badge, political button, or other political insignia violates the Free Speech Clause of the First Amendment. Minnesota enacted this political apparel ban in the late nineteenth century to address [polling place decorum] vulnerabilities and improve the reliability of elections. Minnesota currently empowers election judges to decide whether a particular item falls within the ban based on the following guidance: prohibited items include those that name a political party, name a candidate, indicate support for or opposition to a ballot question, display issue-oriented material designed to influence or impact voting, or promote a group with recognizable political views. If a judge deems an item to be objectionable, she will ask the voter to conceal or remove it. If the voter refuses, the judge must allow him to vote but will record the violation, which may lead to an administrative hearing or prosecution for a petty misdemeanor. Prior to the November 2010 election, individuals and non-profit organizations (petitioners) challenged the political apparel ban on First Amendment grounds. On Election Day, individual petitioners wore Please I.D. Me buttons and Tea Party shirts, which election judges deemed covered by the ban. The 3

4 district court granted Minnesota s motions to dismiss with respect to petitioners facial and as-applied challenges. The Eighth Circuit affirmed dismissal of the facial challenge, relying on Burson v. Freeman, 504 U.S. 191 (1992), which upheld a 100-foot zone outside a polling place that restricted speech related to a political campaign. (The Eighth Circuit later affirmed dismissal of the as-applied challenge as well, but only the facial challenge is at issue here.) In an opinion by Chief Justice Roberts, the Court reversed and remanded. The Court ruled that a polling place is a nonpublic forum because, at least on Election Day, [it is] government-controlled property set aside for the sole purpose of voting. Under longstanding law, a speech restriction in a nonpublic forum standard is valid if it is reasonable in light of the purpose served by the forum. The Court concluded that Minnesota pursued a permissible objective in setting aside the polling place as an island of calm in which voters can peacefully contemplate their choices. In short, Minnesota may reasonably take steps to ensure that partisan discord not follow the voter up to the voting booth, and distract from a sense of shared civic obligation at the moment it counts the most, which may be thwarted by displays that do not raise significant concerns in other situations. The Court nonetheless struck down the ban because Minnesota failed to articulate some sensible basis for distinguishing what may come in from what must stay out. The Court ruled that the ban s primary flaw was its unmoored use of the term political. To start, found the Court, the term political can be so expansive that it might cover a button or T-shirt merely imploring others to Vote! The Court noted that Minnesota offered a narrowing interpretation which read the ban to cover only words and symbols that an objectively reasonable observer would perceive as conveying a message about the electoral choices at issue in [the] polling place. But this construction introduces confusing line-drawing problems. For example, one of the barred categories is issue oriented material, which prohibited the Please I. D. Me buttons. But, asked the Court, [w]hat qualifies as an issue? Minnesota answered that a covered issues is any subject in which a political party or candidate has taken a stance. Yet, observed the Court, a voter identification requirement was not on the ballot in 2010, so Minnesotans would have had no explicit electoral choice to make in that respect. The Court rejected the state s contention that the buttons were covered because Republican candidates for two statewide offices had staked out positions on voter ID laws. A rule whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot is not reasonable. The Court found that another category promoting a group with recognizable political views makes matters even worse. Minnesota had construed the category as limited to groups with views about the issues confronting voters in a given election. The Court noted, however, that [a]ny number of associations, educational institutions, businesses, and religious organizations could have an opinion on an issue[] confronting voters in a given election, and wondered whether their insignias could be banned if those groups views aligned or conflicted with the position of a candidate or party on a ballot. For instance, would a Boy Scout uniform have been prohibited in 2012 since the Presidential candidates had issued public statements on the Scouts then-existing policy to exclude gay members? All told, said the Court, the State s difficulties with its restriction go beyond close calls on borderline or fanciful cases. The ban s lack of objective, workable standards means that the State s interest in maintaining a polling place free of distraction and disruption would be undermined 4

5 by the very measure intended to further it. The Court added that what Minnesota seeks to accomplish is not impossible, and favorably cited California and Texas laws banning displays in more lucid terms. In short, if a State wishes to set its polling places apart as areas free of partisan discord, it must employ a more discernible approach than the one Minnesota has offered here. Justice Sotomayor filed a dissenting opinion that Justice Breyer joined. She objected to declaring the political apparel ban facially invalid without afford[ing] the Minnesota state courts a reasonable opportunity to pass upon and construe the statute. She would certify this case to the Minnesota Supreme Court for a definitive interpretation, which in her view would likely obviate the hypothetical line-drawing problems that form the basis of the Court s decision today. Sveen v. Melin, Minnesota law provides that the dissolution or annulment of a marriage revokes any revocable... beneficiary designation... made by an individual to the individual s former spouse. Minn. Stat , subd. 1. This means that if a person designates a spouse as a life insurance beneficiary and later gets divorced, Minnesota law provides that the beneficiary designation is automatically revoked. By an 8-1 vote, the Court held that applying this law to a beneficiary designation made before the statute s enactment does not violate the Contracts Clause. The case arose in the wake of Mark Sveen s death. Mark married respondent Kaye Melin in The next year, Mark purchased a life insurance policy and designated Melin as the primary beneficiary, with his children from a prior marriage, petitioners Ashley and Antone Sveen, as contingent beneficiaries. When Mark and Melin divorced in 2007, their divorce decree made no mention of the policy. After Mark died in 2011, his children claimed that under Minnesota law, Melin s divorce from their father removed her as a beneficiary and made them the designated recipients. The district court found in favor of the children, but the Eighth Circuit reversed, holding that a revocation-upon-divorce statute like [Minnesota s] violates the Contracts Clause when applied retroactively. In an opinion by Justice Kagan, the Court reversed. The Contracts Clause provides that [n]o state shall... pass any... Law impairing the Obligation of Contracts. U.S. Const., Art. I, 10, cl. 1. The Court explained, however, that not all laws affecting pre-existing contracts violates the Clause. A state law crosses the constitutional line only if it substantially impairs a contractual relationship and is not an appropriate and reasonable way to advance a significant and legitimate public purpose. The former (substantial impairment) inquiry looks at the extent to which the law undermines the contractual bargain, interferes with a party s reasonable expectations, and prevents the party from safeguarding or reinstating his rights. The Court concluded that, for three reasons, the Minnesota law does not substantially impair pre-existing contractual relationships and therefore does not violate the Contracts Clause. First, the statute is designed to reflect a policyholder s intent and so to support, rather than impair, the contractual scheme. The Court explained that legislatures have long enacted laws based on presumptions about a decedent s likely testamentary intent after large life changes a marriage, a birth, or a divorce. Laws like Minnesota s reflect the belief that, [a]lthough there are exceptions, most divorcees do not aspire to enrich their former partners. To carry out the intent of the contracting party, the law therefore presumes that the insured s failure to change the beneficiary after a divorce is more likely the result of neglect than choice. Second, the Minnesota law is unlikely to upset the policyholder s expectations at the time of contracting. That is because divorce courts have broad 5

6 discretion to allocate property upon a divorce, including by revoking spousal designations or by requiring that they remain. A policyholder cannot reasonably rely on a beneficiary designation surviving a divorce. Finally, the Court found that the Minnesota law acts as a mere default rule that the insured can easily undo at any time by redesignating the former spouse as beneficiary by filling out a form. The Court pointed to a series of cases, ranging from 1830 to 1992, where the Court has held that laws imposing such minimal paperwork burdens do not violate the Contracts Clause. These cases involved real estate recording statutes, land purchase notices, and foreclosure filing requirements. Melin attempted to distinguish those cases as involving laws that interfered with a person s remedies (his ability to enforce a contract) and not, as here, a law that acts directly upon a contract to alter its terms. The Court, however, saw no meaningful distinction among all these laws. The statutes at issue in the cases it cited also act[ed] on the contract in a significant way by adding a paperwork obligation nowhere found in the original agreement. The Court concluded that when the results of eliminating a remedy and extinguishing a right are identical, the Contracts Clause analysis is the same. Justice Gorsuch dissented. He recounted the ratification debates, which reveal the Framers intent to categorically prohibit[] states ability to impair the Obligation of Contracts. He further described the Court s early interpretations of the Clause, which barred legislative impairments of contractual obligations however minute, or apparently immaterial, while allowing the legislature to retroactively alter contractual remedies if it did so reasonably. Justice Gorsuch found the Court s modern doctrine which allows a state to substantially impair a contractual obligation to further a significant and legitimate public purpose as hard to square with the Constitution s original public meaning. He then concluded that Minnesota s law violates the Constitution, when applied retroactively, even under the Court s modern precedents. Justice Gorsuch noted that [n]o one pays life insurance premiums for the joy of it the choice of beneficiary is the whole point (internal quotation marks omitted). And so changing the beneficiary substantially impairs the contractual obligation. Nor, he concluded, is the impairment reasonable, for Minnesota could have achieved its objective by requiring courts or attorneys to confirm beneficiary designations during the divorce proceedings or having insurers or the state give notice to policyholders. Justice Gorsuch then responded to each of the Court s three reasons for finding no substantial impairment. He stated that many divorcees still want their former spouses to receive their insurance proceeds meaning it substantially impairs some number of contracts. He rejected the Court s reliance on divorce courts ability to change beneficiary designations because the Contracts Clause does not apply to courts. And he distinguished the cases upon which the Court relied on the same basis as Melin: because they involved statutes altering contractual remedies, not the key contractual obligation. China Agritech, Inc. v. Resh, In American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), the Court held that the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action. This allows a former class member to pursue an individual claim if the class is rejected. The Court unanimously held here that American Pipe does not permit former class members to bring not only their own claims, but also claims on behalf of a class. 6

7 This case is the third class action brought on behalf of purchasers of China Agritech s common stock. Each suit alleged that China Agritech engaged in fraudulent and misleading conduct, causing stock prices to plummet, in violation of the Securities Exchange Act of The Act has a two-year statute of limitations and a five-year statute of repose. 28 U.S.C. 1658(b). Theodore Dean, a China Agritech shareholder, filed the first class action on February 11, 2011, well within the statute of limitations and repose period. As required by the Private Securities Litigation Reform Act (PSLRA), Dean s counsel posted notice of the action and invited members of the putative class to move to serve as lead plaintiff. Six shareholders did so. The district court, however, denied class certification because plaintiffs failed to show reliance on a classwide basis. The action settled and the case was dismissed. A month later, Dean s counsel filed another timely complaint with a new set of plaintiffs. This time eight shareholders sought lead-plaintiff status, but the district court again denied class certification this time on typicality and adequacy grounds. The second suit settled and was dismissed. Then, in 2014 a year and a half after the statute of limitations had expired new counsel filed the instant class action on behalf of respondent Michael Resh, who did not seek lead-plaintiff status in the earlier cases. The district court dismissed the complaint as untimely. The Ninth Circuit reversed, finding that American Pipe applies to successive class claims and therefore tolled the time to initiate this action. In an opinion by Justice Ginsburg, the Court reversed. The Court explained that American Pipe tolling is necessary to ensure that Rule 23 class actions retain the efficiency and economy of litigation which is the principal purpose of the [class action] procedure. Absent tolling, [p]otential class members would be induced to file protective motions to intervene or to join in the event a class was later found unsuitable. But, held the Court, neither American Pipe nor Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983), so much as hints that tolling extends to otherwise time-barred class claims. The Court declined to adopt such a rule here. The efficiency and economy of litigation that support tolling of individual claims do not support maintenance of untimely successive class actions; any additional class filings should be made early on, soon after the commencement of the first action seeking class certification. That way, stated the Court, all would-be representatives have come forward, [and] the district court can select the best plaintiff with knowledge of the full array of potential class representatives and class counsel. Rule 23 encourages courts to resolve certification issues promptly; and the PSLRA evinces a similar preference... by requiring notice of the commencement of a class action. Given all that, [a] would-be class representative who commences suit after expiration of the limitation period... can hardly qualify as diligent[.] Worse, [r]espondents proposed reading would allow the statute of limitations to be extended time and again; as each class is denied certification, a new named plaintiff could file a class complaint that resuscitates the litigation. But, said the Court, [e]ndless tolling is not what American Pipe envisioned. Respondents argued that in Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010), the Court stated that a class action may be maintained if Rule 23(a) and (b) s requirements are met, and Rule 23 automatically applies in all civil actions and proceedings in the United States district courts. And so, respondents maintained, [if] Resh s suit meets the requirements of Rule 23(a) and (b),... there is no reason why Resh s suit cannot proceed as a class action. Rejecting that argument, the Court noted that Shady Grove addressed an entirely different issue. Critically here, Rule 23 itself does not address timeliness of claims or tolling and nothing in the Rule 7

8 calls for the revival of class claims if individual claims are tolled. The Court found no basis for respondents warning that the ruling here would likely cause a substantial increase in the number of protective class-action filings. And, said the Court, multiple early class filings could assist district courts in deciding when class treatment is appropriate and who the best representative is. Justice Sotomayor filed an opinion concurring in the judgment. She agreed with the Court s ruling if limited to cases like this one governed by the PSLRA. She explained that Shady Grove required a special reason to treat class claims differently from individual claims, and the PSLRA provides such a reason through its process governing appointment of lead plaintiffs. But, she concluded, the majority s conclusion that absent class members were not diligent because they failed to ask to be the class representative in a prior suit makes sense only in the PSLRA context. The same conclusion does not follow in the generic Rule 23 context, where absent class members are most likely unaware of the existence of a putative class action. Animal Science Products, Inc. v. Hebei Welcome Pharm. Co., The Court unanimously held that, when interpreting foreign law, [a] federal court should accord respectful consideration to a foreign government s submission on the law s meaning, but is not bound to accord conclusive effect to the foreign government s statements. U.S.-based purchasers of vitamin-c filed a class-action lawsuit against four Chinese corporations that manufacture and export the vitamin. The U.S. purchasers alleged that the Chinese sellers fixed the price and quantity of vitamin-c exported into the United States in violation of 1 of the Sherman Act. The Chinese sellers moved to dismiss on the ground that they were required by Chinese law to fix the price and quantity of vitamin C exports, and therefore shielded from liability by (among other things) the foreign sovereign compulsion doctrine. In support of the motion, the Ministry of Commerce of the People s Republic of China filed an amicus brief stating that the alleged conspiracy was actually a regulatory pricing regime mandated by the government of China. The U.S. purchasers disputed that claim. The district court denied the motion. While acknowledging that the Ministry s amicus brief was entitled to substantial deference, it found that the U.S. sellers introduced evidence which suggested that the price fixing was voluntary. Later, at the summary judgment stage, the court held that Chinese law did not require the sellers to fix the price or quantity of vitamin-c exports. A jury then returned a verdict for the U.S. purchasers, leading to a $147 million award. The Second Circuit reversed, holding that the district court erred in denying the Chinese sellers motion to dismiss. More precisely, it held that when a foreign government provides a U.S. court with the construction and effect of [the foreign government s] laws and regulations, the U.S. court is bound to defer to that interpretation if it is reasonable. The Second Circuit concluded that the Ministry s interpretation of Chinese law was reasonable, and that the district court should have accepted it. In an opinion by Justice Ginsburg, the Court vacated and remanded. Federal Rule of Civil Procedure 44.1 provides that in determining foreign law, the court may consider any relevant material or source... whether or not submitted by a party.... The court s determination must be treated as a ruling on a question of law. But, found the Court, the rule does not address the weight a federal court determining foreign law should give to the views presented by the federal government. Nor does any other rule or statute. (Internal citation omitted.) The Court concluded that, [i]n the spirit of international comity, a federal court should carefully consider a foreign state s views about the meaning of its own laws. But the appropriate weight in each case will depend upon the circumstances; a federal court is neither bound to adopt the foreign government s 8

9 characterization nor required to ignore other relevant materials. (Internal citations omitted.) The Court added that, when considering whether to accept a foreign government s statements about its own law, [r]elevant considerations include the statement s clarity, thoroughness, and support; its context and purpose; the transparency of the foreign legal system; the role and authority of the entity or official offering the statement; and the statement s consistency with the foreign government s past The Court therefore ruled that the Second Circuit erred in deeming the Ministry s submission binding and in refusing to address other evidence, including, for example, China s statement to the WTO that China had g[i]ve[n] up export administration... of vitamin-c at the end of The Court also stated that the Second Circuit misperceived United States v. Pink, 315 U.S. 203 (1942), in which the Court found conclusive an official declaration by the Commissariat for Justice of the Russian Socialist Federal Soviet Republic. The Court distinguished Pink on several grounds, including that it involved a document obtained by the United States, through official diplomatic channels, that was not inconsistent with the Soviet Union s past statements. Finally, the Court noted that the United States, historically, has not argued that foreign courts are bound to accept its characterizations [of American law] or precluded from considering other relevant sources. The Supreme Court Report is published biweekly during the U.S. Supreme Court Term by the NAAG Center for Supreme Court Advocacy. SUPREME COURT CENTER STAFF Dan Schweitzer Director and Chief Counsel NAAG Center for Supreme Court Advocacy (202) Winston Lin Supreme Court Fellow (202) Karla E. Zarbo Supreme Court Fellow (202) The views and opinions of authors expressed in this newsletter do not necessarily state or reflect those of the National Association of Attorneys General (NAAG). This newsletter does not provide any legal advice and is not a substitute for the procurement of such services from a legal professional. NAAG does not endorse or recommend any commercial products, processes, or services. Any use and/or copies of the publication in whole or part must include the customary bibliographic citation. NAAG retains copyright and all other intellectual property rights in the material presented in the publications. 9

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