Supreme Court Previews

The previews are contributed by the Legal Information Institute, a nonprofit activity of Cornell Law School. The previews include an in-depth look at two cases plus executive summaries of other cases before the Supreme Court. The executive summaries include a link to the full text of the preview.

Glacier Northwest, Inc. v. International Brotherhood of Teamsters (No. 21-1449)

Oral argument: Jan. 10, 2023

Question as Framed for the Court by the Parties

Whether the National Labor Relations Act impliedly preempts a state tort claim against a union for intentionally destroying an employer’s property in the course of a labor dispute.

Facts

The National Labor Relations Act (NLRA) gives employees the right to collectively bargain and to undertake “concerted activities for… mutual aid or protection.” Concerted activities include the right to strike. The NLRA also prohibits unfair labor practices, which include employer interference with concerted activities. The National Labor Relations Board (NLRB) hears claims of unfair labor practices and can issue injunctive relief but cannot award damages for an injury caused by tortious conduct.

Glacier Northwest, Inc. (Glacier) sells and delivers concrete using “ready-mix” trucks that mix the concrete during transit. Because concrete hardens quickly when mixing ceases, Glacier must deliver the concrete on the day of mixing and cannot let the concrete sit inside the truck for too long.

On August 11, 2017, Glacier’s truck drivers in King County, Washington, members of the International Brotherhood of Teamsters Local 174 (Local 174), went on strike during negotiations over a new collective bargaining agreement. Because Local 174 coordinated the strike to occur during Glacier’s prime concrete delivery time, many drivers’ trucks were full of concrete during the strike. Several of the striking drivers returned their trucks to Glacier’s local site without emptying them or notifying Glacier about the undelivered concrete. The remaining workers at Glacier hastily removed the concrete from the trucks before it could solidify and damage the trucks. The undelivered concrete, left to harden, could not be salvaged for sale.

Glacier sued Local 174, raising tort claims regarding the ruined concrete. Local 174 responded by filing a complaint with the NLRB, alleging that the lawsuit constituted unlawful retaliation against concerted activities. Local 174 then filed a motion to dismiss Glacier’s tort claims, contending they were preempted by the NLRA. The trial court agreed and granted the motion.

The Washington Court of Appeals reversed. Citing the U.S. Supreme Court’s decision in San Diego Bldg. Trades Council v. Garmon, a pivotal case on preemption, the court stated that a claim is preempted by the NLRA when it involves conduct that is “arguably protected” under the NLRA; however, the court concluded that Local 174 did not engage in protected conduct when the truck drivers ruined Glacier’s concrete.

The Washington Supreme Court reversed the state appellate court’s decision. The state supreme court also relied on Garmon but concluded that a walkout “is a type of strike possibly protected by” the NLRA. The court emphasized the importance of deferring to the NLRB when an activity is even “arguably” subject to the NLRA due to the agency’s expertise. The court further determined that the appellate court erred in applying the “local interest” exception to preemption. The court noted the focus of the local interest exception inquiry is whether intimidation and violence were present to give the state a compelling interest in asserting jurisdiction. The court concluded that the destruction of the concrete was not intimidation or violence.

The Washington Supreme Court remanded the case with instructions to dismiss Glacier’s claims. The U.S. Supreme Court granted Glacier certiorari on October 3, 2022.

Legal Analysis

WHETHER STRATEGICALLY-TIMED STRIKES ARE “ARGUABLY PROTECTED” UNDER THE NLRA

Glacier maintains that the striking drivers intentionally destroyed its property by leaving the concrete to harden. Glacier argues that because intentional property destruction is not “arguably protected,” preemption is not required in this case under the Garmon rule, which states a claim is preempted by the NLRA when it involves conduct that is “arguably protected” under the NLRA. Glacier contends that this language requires Local 174 to show that the NLRB could decide in its favor. According to Glacier, a mere “conclusory assertion” does not suffice to show that an activity is arguably protected; instead, Glacier argues that Local 174 must show that its interpretation of the NLRA is not “plainly contrary” to the NLRA’s text and has not been “authoritatively rejected” by courts or the NLRB.

Glacier maintains Local 174 cannot meet this burden. First, Glacier argues that protecting intentional destruction of property does not align with the Act’s goal: encouraging collective bargaining. According to Glacier, “concerted activity” should be interpreted considering the specific activities mentioned in the NLRA. Second, Glacier argues that precedent makes clear that employees have no right under the NLRA to engage in unlawful conduct. Although Glacier concedes striking is a lawful activity, it maintains that employees cannot deliberately time a strike to maximize property damage and then claim NLRA protection. Glacier asserts that the NLRB itself has recognized that striking employees must take “reasonable precautions” to avoid damage to their employer’s property.

Glacier distinguishes “ordinary work stoppages” and their resultant economic effects from strikes deliberately timed to inflict maximum damage. Glacier also contends that damage to a company’s property is different than causing mere loss in profits. According to Glacier, the requirement of reasonable precautions would be meaningless if there were a “federally protected right” to intentionally cause property destruction.

Finally, Glacier contends it is inconsequential that the NLRB General Counsel issued a complaint against it for unfair labor practices after the Washington Supreme Court found preemption. Glacier argues that the complaint amounts to an “unreasonable” assertion of a “regional director” and is insufficient to rebut the text of the NLRA and legal precedent.

Local 174 counters that, by issuing a complaint against Glacier, the NLRB General Counsel signaled the NLRB’s belief that Local 174’s conduct was “actually protected” under the NLRA. According to Local 174, this makes it certain that the striking drivers’ actions were at least “arguably protected.”

Local 174 further argues that, because its interpretation is not “plainly contrary” to the statutory language and has not been “authoritatively rejected” by courts or the NLRB, the striking workers’ conduct was “arguably protected.” Local 174 argues that the General Counsel’s independent investigation and the resultant NLRB complaint against Glacier indicates there is sufficient evidence that “the charges have merit.” Local 174 contends that if the charges have merit, they must not be “plainly contrary” to the NLRA’s language and must not have previously been “authoritatively rejected.” Local 174 also points out that deferring to the NLRB is a mere “jurisdictional hiatus,” because if the NLRB determines Local 174’s conduct was not protected, Glacier can proceed on its tort claims in state court.

Local 174 argues that the drivers engaged in the “mere act of stopping work,” and did not intentionally destroy Glacier’s property. Local 174 contends that strikes are protected even if the timing results in economic harm or makes such harm foreseeable. First, Local 174 points to the language of the NLRA, which states a strike is protected even if it causes an “interruption of operations.” Second, Local 174 cites several cases where opportunistically timed strikes were deemed protected. According to Local 174, in both the prior cases and on the present facts, there was no “affirmative” act that caused physical damage; instead, the workers merely stopped working. Local 174 contends that if those examples were “actually protected,” the circumstances here must be at least “arguably protected.”

Local 174 points out that showing an interpretation has not been “authoritatively rejected” is a low bar. Local 174 claims that even if Glacier can distinguish the cases that Local 174 cites, Local 174 should prevail because its position is not “authoritatively rejected.” According to Local 174, inflicting economic loss is the motivating reason of any protected strike, so the “purpose” is not distinguishable. Finally, Local 174 rebuts Glacier’s argument that striking employees must take “reasonable precautions.” Local 174 argues that “reasonable precautions” have only been required where there is a “danger of aggravated injury to persons or premises.” Local 174 maintains that the truck drivers put no one at risk of injury with their actions.

The Local Interest Exception To Preemption

Glacier highlights that the local interest exception to preemption provides that where an activity implicates interests that are “deeply rooted in local feeling and responsibility,” states are not preempted from providing damages for injury caused by the activity. Glacier argues that, even if Local 174’s intentional destruction of Glacier’s concrete is “arguably protected,” the local interest exception applies to exempt Glacier’s tort claims from preemption. According to Glacier, tortious conduct––including intentional destruction of property––has long been recognized as an area of local interest for states. Glacier points out that the NLRA cannot provide damages for injury caused by tortious activity, meaning the state has a heightened interest in hearing the case to provide damages and prevent further “disrespect for the law” from occurring.

Local 174 responds that the local interest exception applies only where conduct is “arguably prohibited,” not where it is “arguably protected.” According to Local 174, a state cannot regulate “conduct that Congress intended to protect,” and that risk is always present when conduct is “arguably protected.” Further, Local 174 argues that the remedy issue Glacier points to is illusory because if Local 174’s activity was indeed protected, Washington state could not provide damages anyway, and if the activity turns out to be un- protected, Glacier can then seek damages in state court. Additionally, Local 174 contends that even if the local interest exception is extended to “arguably protected” cases, mere work stoppages would not be enough for the local interest exception to apply, since there must be “violence and imminent threats to the public order” for the exception to apply.

Discussion

Balancing Employer And Union Bargaining Power

Coalition for a Democratic Workplace et al. (Coalition), in support of Glacier, argues that authorizing unlawful methods of creating economic pressure would give unions an overwhelming bargaining advantage. While the Coalition acknowledges that the NLRA authorizes unions to inflict economic harm upon employers via strikes as a legitimate bargaining tactic, it argues that Congress assumed unions would be limited to lawful economic weapons. The Coalition asserts that tortious intentional destruction of property is too powerful a weapon because employers would bear not just financial but also logistical and reputational harms.

United Brotherhood of Carpenters and Joiners of America et al. (“Brotherhood”), in support of Local 174, counters that the balance of bargaining power includes the right to strike and the incidental loss of perishable products. The Brotherhood maintains that strikes inherently function by inflicting economic loss and pressure on employers. The Brotherhood suggests that, because Glacier produces perishable concrete on an ongoing basis, any strike by the trucker’s union was bound to cause property damage. The Brotherhood concludes that recognizing tort liability would disincentivize strikes and erode the congressional balance of negotiating power in industries involving perishable products.

Resolving Labor Disputes In The Proper Forum

The Coalition, in support of Glacier, argues that depriving employers of their ability to bring tort claims arising out of labor disputes in state court leaves them entirely without recourse and undermines the states’ traditional role in protecting their citizens’ rights. The Coalition observes that the NLRB cannot award damages for torts, meaning that employers who suffer tortious harms and whose claims are preempted cannot recover. The Coalition adds that intentional destruction of property in labor disputes imposes collateral harms on local communities, thus generating local interest. The Coalition adds that employers will pass on the cost of potential property damage to employees and consumers via decreased wages and increased prices.

A group of law professors (Professors), in support of Local 174, counter that the NLRA conferred primary jurisdiction on the NLRB to adjudicate labor disputes and resolve claims arising from use of economic weapons. The Professors assert that, following the Gilded Age, Congress intentionally stripped the courts of jurisdiction to decide the permissibility of labor strikes. The Professors add that decades of NLRB precedent facilitate clear and nationally uniform application of labor law.

Written by Ronahn Clarke and Amanda Shoemaker. Edited by Danielle Dominguez.

Full text available at https://www.law. cornell.edu/supct/cert/21-1449. 

Gonzalez v. Google LLC (No. 21-1333)

Oral argument: Feb. 21, 2023

Question as Framed for the Court by the Parties

Whether Section 230(c)(1) of the Communications Decency Act immunizes interactive computer services when they make targeted recommendations of information provided by another information content provider, or only limits the liability of interactive computer services when they engage in traditional editorial functions (such as deciding whether to display or withdraw) with regard to such information.

Facts

In 2015, Nohemi Gonzalez, a U.S. citizen, was killed in a terrorist attack in Paris. The following day, The Islamic State of Iraq and Syria (ISIS) claimed responsibility by issuing a written statement and posting a YouTube video. YouTube, which is owned by Respondent Google LLC (Google), is an online platform for users to post, share, view, and comment on videos. As YouTube’s owner, Google can review and remove any content on the platform that violates its policies.

Reynaldo Gonzalez, the victim’s father, along with other family members, filed a complaint against Google for damages pursuant to 18 U.S.C. § 2333, the Antiterrorism Act (ATA). The ATA gives U.S. citizens the opportunity to recover damages for injuries suffered “by reason of an act of interna- tional terrorism.” According to Gonzalez’s complaint, Google is secondarily liable for Nohemi’s death because Google “aided and abetted an act of international terrorism” in violation of § 2333(d) by allowing ISIS to “recruit members, plan terrorist attacks, issue terrorist threats, instill fear, and intimidate civilian populations” through YouTube.

Specifically, Gonzalez alleged that Google is liable because it used computer algorithms to recommend videos published by ISIS or related to ISIS to its users. In this way, Gonzalez claimed that Google was helping ISIS spread the organization’s message. Moreover, Gonzalez claimed that Google is liable because it failed to remove, or sometimes removed only a portion of, the content posted by ISIS or related to ISIS, although it has the authority, as YouTube’s owner, to remove such content completely from YouTube. Based on the aforementioned acts or failures to act by Google, Gonzalez asserted that YouTube had become “an essential and integral part” as well as “a unique and powerful tool of communication” of ISIS’s terrorist campaign program.

Google moved to dismiss the complaint pursuant to 47 U.S.C. § 230 of the Communications Decency Act (Section 230), which provides immunity to online platforms, such as YouTube, from civil liability based on third-party content. The district court granted Google’s motion to dismiss, reasoning that Google is entitled to immunity under Section 230 because the producer of the recommended videos was ISIS, not YouTube. The Ninth Circuit affirmed the district court’s decision, holding that Section 230 immunity applied to content recommendations so long as YouTube recommended non-harmful content based on the same neutral criteria as the harmful content. Plaintiffs filed a timely petition for rehearing en banc, and a majority of the Ninth Circuit voted to deny rehearing en banc The U.S. Supreme Court granted certiorari on October 3, 2022.

Legal Analysis DEFINITION OF “PUBLISHER” UNDER SECTION 230

Gonzalez argues that YouTube, a subsidiary of Google, is not a publisher or speaker as defined under Section 230 when it recommends third-party content to users, and therefore should not be able to raise a Section 230 defense in this case. Gonzalez explains that a Section 230 defense is available when the defendant can show that (1) the plaintiff’s claim treats the defendant “as the publisher or speaker” of the third-party content; (2) the content is provided by “another information content provider”; and (3) the defendant acts as a “provider . . . or user of an interactive computer service.”

On the first element, Gonzalez distinguishes between the everyday and legal meanings of the term “publisher,” arguing that Congress intended for “publisher or speaker” under Section 230 to refer to its narrower legal meaning under defamation law. Gonzales points out that Section 230 was originally enacted to overrule Stratton Oakmont, Inc. v. Prodigy Services, a state defamation case in New York which found that publishers that censor or remove problematic materials can be held liable for the content they affirmatively choose to publish. Gonzalez argues that YouTube does not qualify under the defense, because the claim here is not focused on YouTube’s dissemination of harmful materials, but rather on YouTube’s recommendation of them. According to Gonzalez, even if Congress intended for the everyday meaning of “publisher” to apply, YouTube’s recommendation function still does not fall under the protection of Section 230.

Gonzalez concedes that some recommendation-based claims might qualify for a Section 230 defense, but for Gonzalez, the key issue is whether the recommendation directly sends harmful third-party content to users in the form of a file, or whether it merely includes information about third-party content in the form of a URL or a notification. Gonzalez asserts that sending a file is an act of publication, whereas sending a URL or notification is not. Thus, according to Gonzalez, when YouTube recommends ISIS-related videos to users, YouTube is not acting as a “publisher or speaker” under Section 230 because it is merely sending users information about the video in the form of a URL, and thus the Section 230 defense cannot shield Google from liability under the ATA.

Google counters that YouTube is a “publisher” under Section 230. Google contends that the Supreme Court typically reads statutory language according to its everyday meaning and that, in consequence, “publisher” in Section 230 should be read in this manner. Google explains that, under the term’s everyday meaning, publishing refers to the act of selecting and ordering content; newspapers and broadcasters publish, for example, by selecting and ordering content to match a print layout or to fill specific time slots. Google contends that YouTube, similarly, selects and orders content using algorithms for publication to its “Up Next” feed; since YouTube applies the same neutral criteria to all its content, YouTube should qualify for immunity as a publisher under Section 230.

Google also claims that regardless of whether Congress intended for the legal or everyday meaning of “publisher or speaker” to apply, YouTube should still qualify as a “publisher or speaker” under Section 230. Even under the narrower meaning of “publisher,” Google points out that the Supreme Court deems defamation defendants to be “publishers” simply because they arrange content. Referring to the surrounding text of the statute, and specifically 47 U.S.C. §§ 230(f)(2) and (f)(4), Google points out that Congress explicitly intended for “publishing” in Section 230 to include selecting content via algorithms.

Thus, according to Google, YouTube is a “publisher” under the plain text of the statute because it filters and recommends videos for users using algorithms. In response to Gonzalez’s distinction between the acts of recommendation and dissemination, Google counters that the internet has obscured the difference between publication and distribution, causing them to happen at almost the same time.

RECOMMENDATION OF THIRD-PARTY CONTENT AS “INFORMATION PROVIDED BY ANOTHER INFORMATION CONTENT PROVIDER”

Regarding the statute’s second element, Gonzalez argues that YouTube’s recommendations do not qualify as “information provided by another information content provider” under Section 230 because they are generated by YouTube, itself, not by another information content provider. Specifically, Gonzalez explains that when YouTube’s recommendations contain URLs, these URLs are not “information provided by another information content provider” for the purposes of Section 230.

Finally, regarding the inapplicability of the statute’s third element, Gonzalez points out that a defendant can only trigger the Section 230 defense when it acts as a “provider . . . of an interactive computer service.” According to Gonzalez, to qualify as interactive, a computer service must send content in response to a user’s request for information. Gonzalez points out that You-

Tube sends unrequested videos to users via an automated recommender algorithm.

Google counters that plaintiffs cannot hold defendants liable for merely providing access to “information provided by another information provider” when they did not, themselves, create or develop the harmful content. Google cites a Sixth Circuit case, O’Kroley v. Fastcase, Inc., where the plaintiff based their claim on Google’s previews of third-party websites on its search feed. According to Google, the Sixth Circuit held that under Section 230, Google could not be held liable for merely providing access to third-party content in the form of automatically-generated excerpts from those websites. From Google’s perspective, Google’s previews are analogous to YouTube’s “Up Next” feed, and therefore the phrase “information provided by another information content provider” cannot be interpreted to exclude YouTube’s recommender function from the protections of Section 230. Since YouTube did not create or develop the ISIS videos, but merely provided access to them, Google argues that YouTube should be able to assert immunity under Section 230.

In response to Gonzalez’s argument that YouTube’s recommendations do not qualify as an “interactive computer service,” Google contends that nothing in the text of Section 230 requires computer services to exclusively provide users with content they request. Google therefore concludes that YouTube qualifies as “interactive computer service” under Section 230(f)(2) because it allows, and thus “enable[s]”, “access by multiple users” to content stored on YouTube’s servers.

Discussion

Effects On The Growth Of The Modern Internet

Counter Extremism Project and Hany Farid (CEP), in support of Gonzalez, states that rejecting the application of Section 230 immunity to online platform service companies, such as Google in this case, would not necessarily threaten the growth of the modern internet. CEP points out that the modern internet is no longer “a fragile new means of communication” that could easily be damaged in its growth by law enforcement’s efforts to police harmful content. CEP emphasizes that Google and other mega-platforms possess considerable power to stem the spread of harmful content; they can act to lessen the risk of injury to users. Wikimedia Foundation (Wikimedia), in support of Google, counters that the modern online community needs the protection of Section 230 immunity to flourish. Wikimedia argues that Section 230 allows small companies and non-profits with limited funds to exist and thrive by ensuring them protection from the risk of litigation and high litigation costs. Wikimedia states that Section 230 promotes the development of the modern internet by permitting a diverse portfolio of companies, as opposed to an oligarchy of a few mega-platforms, to thrive without the fear of litigation.

Preservation Of Online Free Speech

Giffords Law Center to Prevent Gun Violence (Giffords), in support of Gonzalez, states that granting broad Section 230 immunity to online platforms would reduce checks on hate speech. Giffords argues that when platforms lack adequate mechanisms to combat hate speech, users tend to “self-censor” to avoid being targeted by prevalent hate-speech groups. Giffords claims that this consequence directly runs contrary to the ideal of an online free “marketplace of ideas.”

Internet Law Scholars (ILS), in support of Google, counters that Section 230’s legal immunity has been vital to the development of a safer and more diverse online environment because it liberates online platforms from the fear of liability for their users’ actions. ILS warns that denying Section 230 immunity to algorithmic selection processes, such as YouTube’s recommendation algorithm, would lead platforms to over moderate their content to avoid liability. ILS points out that this censorship would directly contradict the free speech values that characterize many online communities.

Written by Yue (Wendy) Wu and Wentao Yang. Edited by Amaris Cuchanski. Full text available at https://www.law. cornell.edu/supct/cert/21-1333. 

Ohio Adjutant General’s Department v. Federal Labor Relations Authority (No. 21-1454)

Oral argument: Jan. 9, 2023

Court below: U.S. Court of Appeals for the Sixth Circuit

The Supreme Court in this case will determine whether the Federal Labor Relations Authority (FLRA) has jurisdiction to regulate state militia labor practices. The Ohio

Adjutant General, Ohio Adjutant General’s Department, and the Ohio National Guard contend that the Ohio National Guard is under state control and that Congress has not expressly included state militias in the Federal Service Labor-Management Relations Statute, and thus the state militias are not subject to the FLRA’s jurisdiction. In contrast, the FLRA maintains that the Guard is subject to the FLRA’s jurisdiction because the statute memorialized various federal regulations providing collective bargaining rights to dual status technicians, and the FLRA’s jurisdiction is necessary to such rights. This case has significant implications for federal military power, labor relations for state militias, and the balance of power between state and federal governments.

Full text available at https://www.law. cornell.edu/supct/cert/21-1454.

Financial Oversight and Management Board for Puerto Rico v. Centro de Periodismo Investigativo, Inc. (No. 22-96)

Oral argument: Jan. 11, 2023

Court below: U.S. Court of Appeals for the First Circuit

This case asks the Supreme Court to consider whether the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), which created the Financial Oversight and Management Board for Puerto Rico (Board), abrogates the Board’s sovereign immunity by granting general jurisdiction to federal courts over claims against the Board. The Board argues that PROMESA does not abrogate its sovereign immunity, since the statutory language of PROMESA does not explicitly revoke its sovereign immunity. In contrast, the Centro de Periodismo Investigativo, Inc. (CPI) contends that PROMESA abrogates the Board’s sovereign immunity because the statutory language, read in conjunction with prior case law regarding the abrogation doctrine as well as the legislative history of PROMESA, implicitly revokes the Board’s sovereign immunity. The outcome of this case will profoundly impact the Board’s operations and public oversight of the Board’s financial decisions.

Full text available at https://www.law. cornell.edu/supct/cert/22-96.

Turkiye Halk Bankasi A.S. v. United States (No. 21-1450)

Oral argument: Jan. 17, 2023

Court below: U.S. Court of Appeals for the Second Circuit

The Turkish government owns the majority of a bank called Turkiye Halk Bankasi (Halkbank), which a grand jury indicted for multiple counts of fraud in 2019. Halkbank, however, argues that it should be immune from any criminal prosecution by the United States because of the Foreign Sovereign Immunities Act (FSIA). The FSIA explicitly provides immunity from civil actions for foreign governments and their instrumentalities, but the Supreme Court has never stated whether it also applies to criminal prosecutions. If foreign governments are not granted immunity from criminal prosecution under the FSIA, then, as the United States argues, 18 U.S.C. § 3231 explicitly authorizes district courts to hear the case. The Supreme Court’s decision could affect international relations between countries if they fear criminal prosecution by the United States. It could also impact the United States’ ability to protect its national security from foreign government-owned entities that fund terrorists.

Full text available at https://www.law. cornell.edu/supct/cert/21-1450. 

Santos-Zacaria v. Garland (No. 21-1436)

Oral argument: Jan. 17, 2023

Court below: U.S. Court of Appeals for the Fifth Circuit

This case asks the Supreme Court to determine whether a petitioner must file a motion to reconsider with the Board of Immigration Appeals to satisfy the exhaustion requirement (8 U.S.C. § 1252(d)(1)) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and whether this requirement is jurisdictional or a waivable claims-processing rule. Leon Santos-Zacaria argues that the exhaustion requirement is a claims-processing rule because the statute does not mention jurisdiction, and Congress must clearly state that a procedural requirement is jurisdictional for it to be so. Santos-Zacaria further argues that the exhaustion requirement pertains only to remedies available to the alien as of right, which Santos-Zacaria asserts does not include reconsideration. U.S. Attorney General, Merrick Garland, counters that the exhaustion requirement is jurisdictional because the statute is written with language like that which is used to define the scope of appellate jurisdiction. Garland further asserts that the exhaustion requirement encompasses issue exhaustion, which includes reconsideration, because the applicant must give the agency a chance to correct its own mistakes before resorting to appellate review. The outcome of this case will determine the accessibility of judicial review of asylum application decisions.

Full text available at https://www.law. cornell.edu/supct/cert/21-1436.

Perez v. Sturgis Public Schools (No. 21-887)

Oral argument: Jan. 18, 2023

Court below: U.S. Court of Appeals for the Sixth Circuit This case asks the Supreme Court to determine whether settlement with a school satisfies the exhaustion requirement under the Individuals with Disabilities Education Act (IDEA) so that a student might bring a claim for monetary damages in a district court. Miguel Luna Perez asserts that IDEA’s exhaustion is satisfied by a settlement with a school, not only by a decision on the merits. Perez further argues that requiring individuals to exhaust their claims in lieu of settlement would be futile. Further, Perez asserts that allowing non-IDEA claims to proceed without IDEA exhaustion would not cause individuals to bypass the administrative IDEA process. Sturgis Public Schools and Sturgis Board of Education (Sturgis) counter that settlement is insufficient for exhaustion requirements especially when the individual seeks monetary damages. Sturgis further contends that allowing non-IDEA claims to proceed without IDEA exhaustion might result in parents seeking monetary damages in the courts to the detriment of their child’s free appropriate public education. The outcome of this case has important implications on the substantive rights of children with disabilities in terms of the dispute resolution proceedings between the schools and parents.

Full text available at https://www.law. cornell.edu/supct/cert/21-887. 

Twitter, Inc. v. Taamneh (No. 21-1496)

Oral argument: Feb. 22, 2023

Court below: U.S. Court of Appeals for the Ninth Circuit This case asks the Supreme Court to determine whether social media platforms such as

Twitter, Facebook, and Google provide substantial assistance to terrorists by allegedly not taking meaningful action to prevent such terrorists from using their services. This case also asks the Supreme Court to determine whether the same social media platforms can be held liable under the Justice Against Sponsors of Terrorism Act (JASTA), even if their services were not used in connection with the specific act of terrorism that caused injury to the plaintiff. Twitter contends that a defendant does not knowingly provide substantial assistance through general awareness that terrorists were among its many users, and that liability cannot stem from such generalized assistance to a terrorist organization. Mehier Taamneh counters that whether Twitter and other defendants know of terrorist use of their services is a question of fact, and, at this stage, the Court need only decide that plaintiff’s factual allegation is plausible. Taamneh also argues that liability exists when a defendant substantially assists international terrorism and that JASTA’s text doesn’t limit liability to action that has a direct connection to the specific attack that injures the plaintiff.

Full text available at https://www.law. cornell.edu/supct/cert/21-1496. 