David J. Schenck

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In Culley v. Marshall, the Supreme Court is asked to determine whether the Due Process Clause requires a state or local government to provide a post-seizure probable cause hearing before a statutorily-required civil forfeiture proceeding. In determining whether a hearing is required, the Court must decide which rule applies: the “speedy trial” test employed in United States v. $8,850, 461 U.S. 555 (1983), and Barker v. Wingo, 407 U.S. 514 (1972), as held by the Eleventh Circuit, or the three-part due process analysis set forth in Mathews v. Eldridge, 424 U.S. 319 (1976), as held by at least the Second, Fifth, Seventh, and Ninth Circuits.…

Continue Reading Supreme Court Considers Whether Due Process Clause Requires Post-Seizure Probable Cause Hearings for Innocent Vehicle Owners

Vidal v. Elster addresses the complex intersection between trademark registration and freedom of speech under the First Amendment.…

Continue Reading Supreme Court to Decide Whether Refusal to Recognize Trademark Criticizing a Public Figure Violates the Free Speech Clause

In O’Connor-Ratcliff v. Garnier and Lindke v. Freed, the Court is considering whether a public official engages in state action subject to the First Amendment by blocking an individual or deleting comments from the official’s personal social-media account.…

Continue Reading Supreme Court Examines Whether Public Officials’ Social Media Activity Constitutes State Action in O’Connor-Ratcliff and Lindke

In United States v. Rahimi, the central question before the Court is whether the government may restrict gun ownership for individuals subject to domestic violence protective orders under 18 U.S.C. § 922(g)(8). This is a critical Second Amendment challenge, marking the first significant test of the Second Amendment’s individual right to bear arms since the Court’s 2022 Bruen decision. …

Continue Reading Supreme Court Weighs Gun Rights For Domestic Violence Offenders

In Department of Agriculture, Rural Development Rural Housing Service v. Kirtz, the Court is considering whether civil liability provisions of the Fair Credit Reporting Act (FCRA) unequivocally and unambiguously waive the sovereign immunity of the United States.…

Continue Reading Supreme Court Contemplates Whether Sovereign Immunity Is Waived Under The Fair Credit Reporting Act

Dykema’s appellate group is delighted to present the December edition of its monthly publication, “Last Month at the Supreme Court.” Each publication will feature synopses of the Court’s high-profile and client-oriented cases, including highlights from oral argument and opinion analysis as the Court issues key decisions.…

Continue Reading Last Month at the Supreme Court | December 2023

Dykema’s appellate group is delighted to present the inaugural edition of its monthly publication, “Last Month at the Supreme Court.” Each publication will feature synopses of the Court’s high-profile and client-oriented cases, including highlights from oral argument and opinion analysis as the Court issues key decisions. …

Continue Reading Last Month at the Supreme Court | November 2023

In Alexander v. S. Carolina State Conf. of the NAACP, the Court returns to a thorny challenge of untangling race and partisan interest as legislatures go about their mandatory obligation to redraw political lines following each census. The issue before the Court involves the difference between political gerrymandering and unconstitutional racial gerrymandering, and the elusive standards for differentiating between the two.…

Continue Reading Supreme Court Takes On Whether Political Gerrymandering Is Unconstitutional Racial Gerrymandering By Another Name

In Murray v. UBS Sec., LLC, the Court is considering whether, within the burden-shifting framework governing Sarbanes-Oxley cases, a whistleblower must prove his employer acted with a “retaliatory intent” as part of his case in chief, or if the employer bears the burden of proof to establish the lack of “retaliatory intent” in proving its affirmative defense.…

Continue Reading Supreme Court Takes Up Sarbanes-Oxley Whistleblower Burden Shifting