Appellate Advocacy Blog Weekly Roundup Sunday, May 21, 2021

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at [email protected] or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at [email protected] or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

• The Supreme Court has ruled that their April 2020 decision on non-unanimous jury verdicts is not retroactive. The April 2020 decision found that non-unanimous jury verdicts for serious crimes (whether federal or state) are unconstitutional. Then the court considered this case (which we wrote about here back in December 2020) asking whether the April decision should apply retroactively to prisoners in Louisiana and Oregon (the last remaining states to allow non-unanimous verdicts as of the April decision) convicted in the past by non-unanimous juries. The Court ruled that it should not, stating: “It is time — probably long past time — to make explicit what has become increasingly apparent to bench and bar over the last 32 years: New procedural rules do not apply retroactively on federal collateral review.” See the order and reports from The New York Times and The Associate Press.

• The Supreme Court has agreed to hear an abortions case that many believe may test Roe v. Wade. The case challenges a Mississippi law that bans most abortions after 15 weeks. The Court accepted the appeal of the Fifth Circuit’s decision that the law could not survive Supreme Court precedent on abortion restrictions, saying that it would consider whether “all pre-viability prohibitions on elective abortions are unconstitutional.” The case should be heard in the Court’s next term, which begins in October.  Here is a sampling of the many recent reports: The New York Times, The Washington Post, The Los Angeles Times, The Associated Press, and Reuters.

• This week, a reader flagged for us the petition for certiorari in Johnson & Johnson v. Ingham, No. 20-1223 (U.S., pending), and shared two pieces that discuss the case and its legal issues. Thanks, Abby! The Supreme Court will conference on the case this week. Johnson & Johnson (J&J) is appealing the $2.1 billion judgment on the claims of 22 plaintiffs who claimed J&J’s talc products contained asbestos and caused their ovarian cancers. Of particular import in the appeal is whether the lower court properly consolidated multiple plaintiffs into a single trial. For background, see pieces from Reuters and Bloomberg.  Both shared pieces question the legitimacy of consolidated trials and can be found here: Drug & Device Law and Justices Should Stand For Jury-Trial Fairness And Grant Writ Of Certiorari In J&J v. Ingham.

• There’s a new podcast about the Supreme Court, “Divided Argument,” presented by law professors Dan Epps and Will Baude seems to be well-received; find the first three episodes here.

Appellate Court Opinions and News

• The Ninth Circuit has rejected an appeal of the $25 million verdict against Bayer-owned Monsanto. This is the second appeal that the company has lost on a similar verdict and another appeal is pending. This case concerned the claim that the weedkiller Roundup caused the plaintiff’s cancer and considered whether the company should have included a warning on the product. The court rejected the company’s claim that conflicting federal and state laws on labeling prohibited it from including a warning. As Bayer faces many similar suits and because this ruling is a split from a decision from a US District Court in Georgia that sided with Monsanto (now pending in the Eleventh Circuit), some predict that Bayer will ask the Supreme Court to weigh in.  See the order and a report from The Courthouse News.