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Snippets: BP Settlement, Colorado DUI, and the 'Echo Chamber'

By Mark Wilson, Esq. on December 08, 2014 2:47 PM

Except for oral arguments and the occasional back-page opinion attached to the order list, it's been a quiet week at the Supreme Court.

On December 1, the Court heard oral arguments in U.S. v. Elonis, the "Facebook threats" case. Last week, the Court heard another one of its more polemical cases, about whether UPS broke the law by not giving lighter assignments to pregnant employees, even though it had done so for injured employees.

Here are some other snippets from this week's Supreme Court news.

Court Rejects Cert. Petition for BP Settlement

The Court denied a cert. petition from BP in BP Exploration & Production v. Lake Eugenie Land & Development. BP claimed that a lot of people were taking advantage of its generous $9.7 billion settlement offer for damages resulting from the 2010 Deepwater Horizon explosion and oil spill -- people who BP thinks didn't suffer as much as they claimed.

The petition stems from a March opinion of the Fifth Circuit Court of Appeals holding that the way the settlement agreement was drafted, claimants didn't have to provide evidence of a loss due to the oil spill, only an attestation that the claim arose because of the oil spill. Unfair? Not really. BP knew this was going to be a problem, but nevertheless agreed to it to get a deal made: "It was a contractual concession by BP to limit the issue of factual causation in the processing of claims."

Colorado AG Files Cert. Petition in DUI Case

Do police have to get a warrant before forcibly testing someone's blood for alcohol following a DUI arrest? The Court may answer that question sometime this term. A man in Arapahoe County, Colorado (near Denver) had his blood taken without his consent following a car collision. He couldn't consent because he was either unconscious or sleeping. Once awake and armed with a lawyer, he argued that police should have obtained a warrant first. The Denver Post noted that Chief Justice Roberts, in a dissenting opinion, said there should be an exception for warrantless blood draws, as the blood alcohol level decreases over time.

The Echo Chamber

An investigation by Reuters into the Supreme Court's docket revealed that 66 of the 17,000 lawyers who petitioned for writs of certiorari had outsized success. "Their appeals were at least six times more likely to be accepted by the [C]ourt than were all others filed by private lawyers during that period," said the report, also noting that these 66 lawyers represented 43 percent of the cases the Court heard between 2004 and 2012. And of those 66 people, 31 clerked for a Supreme Court justice.

It remains to be seen where is the chicken and where is the egg, however. Though the article hints that the Court uses the name on the brief as a criterion for granting cert., it could also be that companies (and they often are companies) take their most contentious issues to the most elite appellate litigators.

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