March 3, 2008

In a surprise, an equally divided court affirmed 4-4 without releasing an opinion (Roberts was recused, effectively giving the respondents a fifth vote); the question remains whether Breyer, Scalia, or Thomas was that fourth vote. Earlier: Feb. 2008; Sep. 2007. The decision is non-precedential, so the circuit split between the Second and Sixth Circuits on how to apply Buckman remains. Is Buckman really so easily avoided by clever pleading? Apparently at least four justices think so.

Update: Beck and Herrmann comment.