Supreme Court Preview for the 2016-17 Term

Date: September 08, 2016

The Supreme Court is set to open its new term in the first week of October. As always, we will be actively monitoring developments, and will continue to urge the Court to take-up important issues affecting the small business community. For that matter, we’re still waiting to hear whether the Court will grant review in several cases that we think especially worthy—including promising petitions challenging the practice of lower court judges deferring to unofficial agency interpretations of federal statutes, and cases raising serious questions about due process protections for permit applicants. 

In the interim, the Court is set to hear arguments in two important cases this fall—one of special concern to small business landowners, and the other of special concern to manufacturers. First, in Murr v. Wisconsin, the Court will decide whether government can completely deny you the right to develop a parcel, if it adjoins another lot on which you have been allowed to develop. We argue emphatically that government must respect your right to make economically beneficial uses of both properties; however, the government insists that it can prohibit development without paying a dime.  

Finally, Microsoft Corp. v. Baker is an important case because it will effectively set the ground rules for class action lawsuits against manufacturers and employers for years to come. While the general rule is that parties must wait for a final decision on all the issues before a case may be appealed, the plaintiffs are asking the Supreme Court to bless an unorthodox litigation ploy that would give them an opportunity for an immediate appeal. The Ninth Circuit held that plaintiffs could dismiss their own case voluntarily and then seek to appeal a denial of class certification at that juncture; however, we argue that a case is no longer alive once the plaintiff seeks voluntary dismissal. Moreover, we maintain that this controversial tactic should be prohibited because it gives plaintiffs an unfair advantage in litigation.  

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