My trip to the Court to see the arguments in Clay and Archer confirmed that my predictions below were correct. The Court will indeed reverse both cases. Tom did an excellent job arguing for Clay, as did Craig Goldblatt, a partner at Wilmer, Cutler & Pickering, where I will be a summer associate this year. This was Craig's first oral argument before the Court, and to my inexpert eye, he seemed to do great, particularly after Justice Kennedy gave him a rather hard time with his first few questions.
On to tomorrow's cases:
No. 01-1572 Cook County, IL v. United States, ex rel. Chandler
A good description of this case can be found on SCOTUSblog here. The case is about whether a municipality can be subject to liability under the False Claims Act, including for punitive damages. The Act provides an incentive for whistleblowers to come forward when they know about a fraud being perpetrated on the government, by letting the whistleblower sue in the government's stead and keep part of the damages. Here, the county claimed to be providing certain medical services that it was not actually providing to patients that it was not actually treating under some sort of federal grant. The county argues that it is not a "person" under the False Claims Act and cannot therefore be subject to its liability. This is contrary to the ruling of the Seventh Circuit. I agree with the respondent (and the United States as amicus) in this case. There is no reason to think that Congress intended to exclude municipalities from the False Claims Act. The Court will AFFIRM.