Supreme Court Update
Posted on April 10, 2013
Both of my “Cert. Pending” cases to watch are to be discussed at the Justices’ conference this Friday, April 12. And both have made SCOTUSBlog’s “petitions to watch” list, which means that in Tom Goldstein’s view, both “have a reasonable chance of being granted.” Under the Supreme Court’s ordinary practice, we can expect orders in both cases on April 15, though sometimes the Court defers a decision to a later date. So we can expect next week to be a big week in international judicial assistance at the high court, one way or another!
The two cases are:
- Moloney v. United States. This is the Belfast Project case. As Ed Moloney and Anthony McIntyre frame the issues, the case is about whether the lower courts denied them an opportunity to be heard on their objections to the government’s subpoenas to Boston College and whether the lower court applied the correct legal standard in deciding whether to issue the subpoena.
- Republic of Argentina v. NML Capital. This case asks whether a judgment creditor can take post-judgment general asset discovery against a foreign sovereign debtor under FRCP 69 in light of the FSIA.
I have said it before—I am not in the Supreme Court prediction business. So here are my predictions. I think the Court is somewhat likely to grant Argentina’s petition, because there is a true circuit split that needs resolving between the Second and Seventh Circuits and because the issue is not just academic in light of the Argentine bond litigation. I think the Court is unlikely to grant M&M’s petition, because I do not think there is a real split of authority and because I think their arguments are not too strong. But I have been wrong before, and the Court will do what it will do.