In today’s New York Times, Linda Greenhouse reports here on the Supreme Court’s consideration of appeals from Guantánamo detainees at today’s Conference.

At the WSJ.com Law Blog, Peter Lattman has this post about the Court’s decision to grant cert in the securities case, Stoneridge Investment Partners v. Scientific-Atlanta.

The Associated Press has this article on the Michigan High School Athletic Association’s gender equity lawsuit that is under review at today’s Conference. Ken Kobayashi of the Honolulu Advertiser reports here about a case regarding a Hawaii school’s admissions policy, which will be reviewed at the 4/13 Conference.

Kent Scheidegger reports here at Crime & Consequences that bottom-side briefs were filed yesterday in Panetti v. Quarterman.

In Brief, the online magazine of the Virginia Law Review, has this essay by Judge William Fletcher of the Ninth Circuit analyzing the Supreme Court’s 2004 decision in Sosa v. Alvarez-Machain, as well as responses to Judge Fletcher’s essay from Professors Ernest Young, John Harrison, and Anthony Bellia.

UPDATE 8:30 p.m. Because the Court closed for the day some hours ago, it became apparent that there were no immediate orders out of the Friday Conference. All results will emerge at 10 a.m. Monday.

The Court is holding a private Conference today to discuss new and pending cases. Our list of “Petitions to Watch” for this Conference can be found here.

Several scenarios involving the Boumediene/Al Odah detainee cases, which are being considered by the Court today, can be found in an earlier post here or in today’s New York Times here. Additionally, the petitioners in Hamdan v. Gates and Khadr v. Bush have asked the Court once again to consider their petition at today’s Conference (see here).

If any orders relating to these or other cases are issued this afternoon, we will post them promptly. Regular orders relating to today’s Conference are scheduled to be released Monday at 10 AM eastern.

In today’s Washington Post, Robert Barnes and Carrie Johnson report here on Tellabs Inc. v. Makor Issues & Rights; Bloomberg News has this story.

Barnes also has this article on the verbal sparring between Arthur Miller and Justice Scalia during yesterday’s oral arguments; AP writer Mark Sherman has this report. At the WSJ.com Law Blog, Peter Lattman reports here on Tellabs.

Steve Chapman of the Chicago Tribune has this column on the Leegin price fixing case.

UPDATE 8 p.m. The government’s brief in opposition has now been filed. It can be found here. It urges the Court to deny the Hamdan/Khadr petition or, as an alternative, to hold it until the other detainee appeals have been resolved. The brief also argues that the joint petition of two detainees involving two different cases and two different lower courts may not be a proper filing under the Court’s rules, It suggests that the two detainees can file papers in the other detainee cases (if those are granted) to make any argument they would assert in their own appeal.
In addition, a group of present and former members of the British Parliament and the European Parliament filed an amicus brief, arguing that the new Military Commissions Act’s court-stripping provisions “fundamentally offend the rule of law and contravene treaties by which the United States is bound and upon which it is built.” That brief is here.

Lawyers for Salim Ahmed Hamdan, facing a war crimes trial before a U.S. military commission, have asked the Supreme Court to consider his appeal on his legal rights at its private Conference on Friday of this week. After the Court had refused on March 5 to expedite the appeal on its calendar, it had appeared that the case would not be ready for early consideration. Hamdan’s lawyers have now suggested reasons for taking it up promptly.

In a letter to the Court on Wednesday (found here), Hamdan’s counsel asked that the Court consider Hamdan’s appeal (Hamdan v. Gates, 06-1169) this week along with two other appeals by Guantanamo Bay detainees who are challenging their detention. Those cases, along with motions to expedite in each, will be before the Justices at the Friday Conference. (If any order emerges from the Conference on Friday, this blog will post it promptly.)

Hamdan’s appeal involves, in addition to him, another Guantanamo detainee who is facing a war crimes charge — Omar Khadr (his part of the petition is Khadr v. Bush). Hamdan’s appeal is from a District Court ruling dismissing his case under the new Military Commissions Act of 2006, and asks the Justices to hear the case without waiting for a D.C. Circuit ruling on an appeal that Hamdan also has pending there. Khadr’s part of the appeal asks the Court to review the D.C. Circuit’s Feb. 20 ruling using the MCA to dismiss all detainees’ pending habeas cases. That Circuit Court ruling is the same one that is at issue in the two other appeals — Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1169).

In Wednesday’s letter, the Court was advised of the guilty plea on Monday of another detainee before a military commission — Australian David Hicks. His was the first military commission trial to open.

Hicks was one of the detainees involved in the other appeals the Court is ready to consider. The Justice Department had suggested to the Court, in opposing quick action on the Hamdan/Khadr appeal, that Hicks could raise issues about detainees facing military commission trials as part of the other appeals. The letter quotes the government’s earlier suggestion that, if the Court wished to consider how the Military Commissions Act applied to detainees facing commission trials, it could do so in the other cases.

With Hicks’ guilty plea this week, Hamdan’s lawyers said that would “preclude this Court’s consideration of the military commission matters in the context” of the other appeals. Only the Hamdan/Khadr petition, the letter added, “presents the Court with the opportunity to fully resolve at this time the challenges to the status of the Guantanamo detainees.”

The letter also argued that the Court should act soon on detainees facing war crimes trials because those are going forward under the D.C. Circuit ruling in February holding that detainees have no constitutional rights to pursue in federal court.

Finally, the letter notified the Court that the D.C. Circuit has put Hamdan’s pending appeal there on hold until the Supreme Court acts on his petition to the Supreme Court.

Meanwhile, the Justice Department was scheduled to file later Thursday its formal response to the Hamdan/Khadr petition. Earlier, it opposed expedited consideration of that petition, but it did not seek additional time to file its response, which was thus due today. (When the brief becomes available, it will be posted here.)

In another development, eight constitutional law professors and a former federal judge, William S. Sessions, filed an amicus brief urging the Court to hear the Hamdan case promptly (download here). “This case presents constitutional issues of exceptional importance and urgency warranting this Court’s review” without awaiting further action in the D.C.Circuit on Hamdan’s case. The brief contains a broad challenge to the Circuit Court ruling dismissing Guantanamo habeas cases under the Commissions Act, and to the Act itself. The Act’s court-stripping provision, the brief contends, violates the Constitution’s limit on suspending the writ of habeas corpus, and intrudes on the Supreme Court’s Article III powers.

In connection with a possible news appearance, I have been asked to identify the most important cases for this Term. The obvious candidates, of course, are the school diversity and partial birth abortion cases. But are there any dark-horse candidates out there that might be quite significant, but that have received little public attention or news coverage? Please feel free to post in the comments or to e-mail me directly. I look forward to your comments on this question.

No oral arguments are scheduled and no non-capital orders or opinions are expected to be issued today.

In the Wall Street Journal, Mark H. Anderson reports here (subscription req’d) on today’s argument regarding standards for securities class-action lawsuits; AP writer Marcy Gordon has this article. At the WSJ.com Law Blog, Peter Lattman has this preview of Tellabs Inc. v. Makor Issues & Rights Ltd; James P. Miller reports here in the Chicago Tribune. Yesterday, Jess Bravin and Lattman had this article (subscription req’d) in the Wall Street Journal discussing both Tellabs and Credit Suisse v. Billing.

Aaron Streett’s latest edition of “Supreme Court Today,” covering yesterday’s opinions and grants, is here. Paul Secunda of Workplace Prof Blog reports here on the Court’s decision in Rockwell.

In the Legal Times, Tony Mauro’s latest Courtside column is here, discussing Martin Garbus’s new book, “The Next 25 Years: The New Supreme Court and What It Means for Americans.”

At the Antitrust Review, Manfred Gabriel has this post on the forthcoming decision in Twombly and David Fischer has this analysis of the oral argument in Leegin Creative Leather Products, Inc. v. PSKS, Inc.

Rick Hasen of Election Law Blog recently posted a draft of his paper, “The Untimely Death of Bush v. Gore,” here on SSRN.

At Concurring Opinions, Melissa Waters has this post on the Supreme Court’s decision last term in Sanchez-Llamas v. Oregon and what it reveals about Chief Justice Roberts; and Alice Ristroph has this post discussing the Court’s opinions in Lochner v. New York and Jacobson v. Massachusetts and their relation to the state’s interest in preserving individual lives.

Here, at Sentencing Law and Policy, Doug Berman previews the Federal Sentencing Reporter’s latest issue, entitled “Claiborne & Rita: Reasonableness Review in the Supreme Court.”

The transcript in Telllabs v. Makor is now available here.

Beginning at 10 AM eastern, the Court will hear one hour of oral argument in Tellabs v. Makor Issues and Rights (preview here). A transcript should be available sometime this afternoon.

No opinions on the merits are expected to be released.

The following argument preview was written by Anitha Reddy of the Stanford Supreme Court Litigation Clinic.

Tomorrow in Tellabs, Inc. v. Makor Issues & Rights, Ltd. (No. 06-484), the Court will consider how strictly courts should interpret the heightened pleading requirements of the Private Securities Litigation Reform Act (PSLRA) when ruling on a motion to dismiss a securities fraud complaint. The case asks whether a court must weigh competing inferences of innocence in determining whether the plaintiff has alleged facts sufficient to give rise to a “strong inference” that – as mandated by the Act – the defendant acted with the required state of mind.

Carter G. Phillips of Sidley Austin in Washington, D.C. will argue on behalf of petitioners Tellabs and Notebaert. Professor Arthur Miller of Harvard Law School will argue on behalf of the respondent shareholders. Assistant to the Solicitor General Kannon Shanmugam will argue for the United States as an amicus in support of Tellabs. The briefs of both parties along with some of the amicus briefs, including that of the United States, are available here.

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UPDATE 2: 6:05 PM: Texas’s brief opposing Supreme Court review can now be found here. The post below now includes some discussion of the arguments Texas makes.

UPDATE: 2:45 PM: The Solicitor General’s amicus brief discussed in this post can now be found here.

The Bush Administration, continuing its sturdy defense of presidential powers, has urged the Supreme Court to rule that President Bush had the authority to direct state courts to obey a decision of the World Court bearing on state criminal prosecutions. The state of Texas disputed that plea in urging the Court not to hear again a case that was before the Justices in 2005, but did not produce a ruling at that time.

In an amicus filing in the case of Medellin v. Texas (06-984), the government called for reversal of a Texas state court ruling that Bush did not have the power to ensure that state courts complied with the international tribunal’s decision on the rights of foreign nationals arrested and prosecuted within the U.S. for crimes here. The state argued in response that the case is moot because Medellin has had access to the courts in Texas to challenge his conviction, and that is all that the World Court ruling required. While Texas challenges the Buish Administration’s assertion of executive power, it suggests that that question, too, is moot.

The Vienna Convention on Consular Relations gives such foreign nationals a right to meet with a diplomatic officer from his or her home country when arrested in another country. The World Court (the International Court of Justice at The Hague) ruled that the U.S. government must take steps to assure that 51 Mexican nationals Iincluding Medellin) who were prosecuted in the U.S. had that right, despite state court rules that barred them from relying upon the Convention in challenging their convictions.

The government’s brief was filed last Thursday but has just now become publicly available. Similarly, the state’s brief in opposition, filed last week, is now publicly available.

The government supports the appeal of Jose Ernesto Medellin, a Mexican national who was convicted of a double rape and murder in Houston in 1993. Medellin claims that his consular access rights were violated, but he has been denied a chance to press that claim, both by the Fifth Circuit Court and by Texas’ highest criminal court. In the most recent decision, last Nov. 15, the Texas state court found he had failed to raise that issue properly as his case unfolded in state court. Medellin’s appeal to the Justices was filed on January 16.

Medellin’s appeal is also supported by the Mexican government and by a group of law professors who are experts on World Court matters.

The case has not yet been scheduled for a Conference of the Justices. It is expected to go to the Justices sometime in April, after Medellin’s counsel has filed a reply.

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Amgen Inc. has recently filed this new cert. petition in the case of Amgen v. Hoechst Marion Roussel, Inc., et al. On appeal from the Court of Appeals for the Federal Circuit, the petition, docketed as 06-1291, raises two issues pertaining to patent law (full question presented after the jump).

Roy Englert, Jr. of Robbins, Russell, Englert, Orseck & Untereiner is counsel of record.

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At Market Watch, Mark H. Anderson has this article on today’s argument in Credit Suisse v. Billing; Christopher S. Rugaber of the Associated Press reports here.

AP writer Mark Sherman has this report on the Court’s decision in Rockwell clarifying the False Claims Act; Greg Stohr reports here at Bloomberg. Stohr also has this article on the Court’s slower pace in issuing rulings this year. At the BLT, Tony Mauro has this post on the “molasses-like” pace.

Mauro also has this article in the Legal Times about Justice Scalia and Justice Alito’s participation in Morse v. Frederick, given that the petitioner’s counsel, Kenneth Starr, is also their summer employer.

In today’s Washington Post, Robert Barnes has this article on yesterday’s argument in Leegin Creative Leather Products Inc. v. PSKS Inc.; USA Today’s Joan Biskupic reports here; Linda Greenhouse of the New York Times has this report; and in the LA Times, David G. Savage reports here.

Also in the LA Times, Savage has this article on the Court’s decision to grant review of a child pornography law; James Vicini reports here for Reuters.

In the Christian Science Monitor, Warren Richey reports here on the Supreme Court’s decision not to review a grandparent visitation ruling.

Finally, at Balkinization Brain Tamanaha has this post on objectivity and judicial restraint in constitutional law and Jack Balkin continues the discussion on citing Dred Scott here.

The Supreme Court has now made available the written transcript of today’s oral argument in the case of Credit Suisse v. Billing (No. 05-1157). It can be found here.

The opinion in 05-1272, Rockwell v. US, is here.

The opinion in 06-116, Limtiaco v. Camacho, is here.

The Supreme Court ruled on Tuesday, by a vote of 6-2, that a person bringing a lawsuit to recover misspent federal funds must have direct and independent knowledge of the facts behind the claim in order to be eligible to sue. The facts for which that individual must be the original source, the Court declared, are the facts underlying the specific claims asserted, rather than being the source for information that came out in public through government action. Thus, if the facts change as the claim proceeds in court, the suing individual must still know personally of the facts underlying the changing claims.

The decision, written by Justice Antonin Scalia, clarified the meaning of the False Claims Act requirement that an individual bringing a so-called “qui tam” lawsuit must be able to show that he or she is the “original source” of the information about the false claim, and thus is not relying upon information previously disclosed to the public. The ruling, in Rockwell International v. U.S.ex rel. Stone (05-1272, opinion), concluded that the suing individual must satisfy the “original source” requirement in all stages of the lawsuit, and not just in the original complaint.

Lower courts had been divided on the meaning of the “original source” requirement. In spelling out what that means, the Court rejected the “qui tam” claim of a former employee of Rockwell International Corp. who had won a $4.1 million judgment after claiming radioactive contamination at the Rocky Flats nuclear weapons plant in Golden, Colo. (Boeing North American Inc. has since acquired Rockwell.)

This was one of two decisions on the merits announced Tuesday. In the other, the Court decided that the Territory of Guam must calculate its borrowing limit based upon the assessed value of property in the Territory, not the appraised value. There were four partial dissents in Limtiaco v. Camacho (06-116, opinion). Justice Clarence Thomas wrote the majority opinion. The decision resolved a dispute between the two top officials of Guam’s government about its debt limit.

The decision interpreted the Guam Organic Act.

Beginning at 10 AM eastern, the Court is expected to release at least one opinion on the merits; we will bring you coverage as they are released. Immediately following that, the Court will hear one hour of oral argument in Credit Suisse v. Billing (preview here).

A transcript should be available sometime this afternoon.

The following argument preview is by Brian Walker of the Stanford Supreme Court Litigation Clinic.

At oral argument today in Credit Suisse v. Billing (No. 05-1157), the Court will consider the overlap between securities regulations and antitrust law generally and, more specifically, whether aftermarket tie-in arrangements between stock underwriters and purchasers during an IPO — which are illegal under securities laws — also create a right of action for treble damages under antitrust law.

Mayer Brown’s Stephen M. Shapiro of Washington, D.C will argue on behalf of the petitioners; he will split his time with Solicitor General Paul D. Clement, who will argue on behalf of the United States as an amicus. Christopher Lovell of New York’s Lovell, Stewart, & Halebian will argue on behalf of the respondents. The briefs of the parties are available here; the brief of the United States is available here.

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In the USA Today, Joan Biskupic has this preview of Leegin Creative Leather Products v. PSKS Inc. At the ACS Blog, Pete Barile of Axinn, Veltrop & Harkrider LLP, who filed an amicus brief in support of the respondents, previews the case here. Mark H. Anderson of the Wall Street Journal reports here (subscription req’d) on this morning’s oral argument on the price-fixing case.

AP writer Christopher S. Rugaber reports here on the Court’s decision to consider the securities fraud case Stoneridge Investment v. Scientific-Atlanta; and AP writer Pete Yost has this article discussing the Court’s decision to review a child pornography law. The Associated Press has several additional stories on cases where certiorari was denied, including: this report on the rejection of appeals by American Indians; this article reviewing the Court’s refusal to grant a grandparents visitation case; and this story on the Court’s decision not to consider the Dow Corning bankruptcy case.

Today, in the Washington Post, Robert Barnes reports here on the Supreme Court’s unusually slow pace in issuing opinions, a forthcoming article on justices’ shifting ideologies, and Justice Breyer’s performance on NPR’s “Wait, Wait … Don’t Tell Me” quiz show. The discussion of the justices’ ideological drift continues here at the Northwestern Law Review Colloquy website with a response from Professor Stephen B. Burbank, former clerk to Chief Justice Warren Burger. At the Wall Street Journal’s Washington Wire blog, Jess Bravin reports on Justic Breyer’s appearance on the quiz show here; David Lat has this post at Above the Law.

Ross Runkel of the Supreme Court Times Blog summarizes this week’s arguments here. At Prawfs Blawg, Ethan Leib has this post on Coke v. Long Island Care at Home, which refers to this article on the case by Steven Greenhouse in the New York Times. At the Bankruptcy Litigation Blog, Steve Jakubowski has this post on the Court’s displeasure with the oral argument in Travelers v. PG&E.

Lastly, the Supreme Court’s docket now reflects Chief Justice Roberts’s decision to rejoin the Credit Suisse case, set for argument tomorrow.

The Supreme Court found itself drawn deeply on Monday into the economics of modern retailing, and confronted a complex yet very simply stated question: do consumers really benefit the most from low prices, or is something else more imporant for them — like service or a selection of brands? And that translated into a legal question: should the Justices shape antitrust law to promote one or the other of those consumer preferences?

The oral argument (transcript here) in the case of Leegin Creative Leather Products Inc. v. PSKS Inc. (06-480) showed the Court more closely divided than might have seemed likely when the case was granted in December. The Court is being asked in the case to overrule the 1911 Dr. Miles decision, so as to allow manufacturers of consumer goods more legal leeway to bar discount prices when their products are sold at retail. Because the Court in modern times has swept away antitrust rules that are like the price-maintenance ban of the Dr. Miles decision, and because a chorus of economists insists that the consumer goods market is more dynamic now and needs more flexible legal rules, the rule of Dr. Miles might well have been judged to be in serious trouble.

But, except for Justice Antonin Scalia, there was no obvious sentiment on the bench for doing away with the per se rule that virtually bars vertical resale price maintenance. The economic “consensus” that Leegin and its allies have insisted exists against that ban did not seem so evident among the Justices. Justice Stephen G. Breyer, perhaps the most energetic questioner, openly doubted that claim. One economist, Breyer said, had concluded that if resale price maintenance were allowed on any scale, “every American would pay far more for the goods they buy at retail. Should we overturn Dr. Miles and run that risk?”

When Leegin’s lawyer, Theodore B. Olson of Washington, D.C., countered that the vast majority of economists disagreed, Breyer shot back: “We’re supposed to count economists?”

The effect of that exchange was to suggest that risking higher prices for consumers might be enough to cause some Justices to shy away from overruling the Dr. Miles precedent. Olson sought to parry that effect, repeatedly arguing that one manufacturer’s resale price mainenance tends to encourage competition at the retail level from makers of other brands, thus benefitting the consumer. Price maintenance, Leegin’s lawyer argued, enables manufacturers and retailers to provide better service to make their branded products more popular than others’.

After Olson conceded that it would be illegal if a group of retailers themselves got together in agreement on prices, Justice Anthony M. Kennedy — who may well hold a swing vote in the case — seized upon that concession. “Why should we allow the manufacturer to do something that [we] wouldn’t allow the retailers to do?” Isn’t that why there should remain a per se rule when manufactures insist upon the pricing level? Kennedy went on. Olson argued that manufacturers actually want the lowest prices possible charged at retail, to increase volume, and inter-brand competition might help with that desire.

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The Supreme Court has now made available the written transcript of Monday’s oral argument in the case of Leegin Creative Leather Products v. PSKS Inc. (06-480). It can be found here.
The transcript for the hearing in Bowles v. Russell (06-5306) is here.

UPDATE 2:05 p.m. Monday’s orders indicated no action by the Supreme Court on two new appeals by Guantanamo Bay detainees (Boumedine v. Bush, 06-1195, and Al Odah v. U.S., 06-1196). However, the parties have now been informed that the Court will consider at its Friday Conference both the motions to expedite the cases, and the question of granting or denying the two petitions themselves.

UPDATE 11:00 a.m.: Today’s orders can now be found here.

The Supreme Court agreed on Monday to spell out the scope of securities fraud law when a private firm or individual has a role in price manipulation, but made no public statements as part of the scheme. In a second order, the Justices agreed to rule on the constitutionality of a 2003 law passed by Congress to criminalize distribution of child pornographic materials over the Internet and through the mails. The newly granted cases will be heard in the new Term starting in October

The securities fraud case is Stoneridge Investment v. Scientific-Atlanta (06-43), testing when a supposedly “secondary” actor in deception about securities can be treated as a “primary” actor in terms of shared liability for the scheme. The case is a sequel to the Court’s 1994 ruling in Central Bank v. First Interstate Bank, holding that private securities fraud lawsuits may not be based on claims of aiding and abetting deception. Monday’s order granting review noted that Chief Justice John G. Roberts, Jr., and Justice Stephen G. Breyer are recused from the case.

The underlying dispute in the Stoneridge case arises over claims that Scientific Atlanta, Inc., and Motorola, Inc., engaged in efforts to help a giant cable television firm, Charter Communications, inflate its financial statements artificially in order to bolster its stock’s price. The deal involved an alleged “sham” transaction that generated some $17 million in phony revenues from the supposed sale of TV set-top boxes. The scheme led to a federal indictment of two of Charter’s officers and a cease and desist order by the Securities and Exchange Commission. Stoneridge’s lawsuit claiming securities fraud was also aimed at Charter, but its appeal granted Monday only involves the dismissal of its claims against the vendor companies.

The case on pornography is U.S. v. Williams (06-694; cert. petition, reply). It involves the validity of the 2003 “PROTECT Act” that Congress passed to try to shore up federal controls on child porn after the Supreme Court struck down a 1996 federal law on the subject in Ashcroft v. Free Speech Coalition (2002). The PROTECT Act is separate from the law struck down last week by a federal judge in Philadelphia, involving a federal law that solely targets Internet distribution of sexually explicit materials in order to protect children with access to computers and other online devices.

Among orders denying review in new cases, the Justices refused Monday to take a new look at the constitutionality of state laws governing grandparent visitation with children. It refused to hear Fausey v. Hiller (06-863). The petition sought to raise the question of whether a law allowing for grandparent visitation over a parent’s objection is invalid if grandparents are not required to show that visitation is necessary to prevent actual or potential harm to the child. The Court’s last examination of grandparent visitation laws came in Troxel v. Granville in 2000; there was no decision for a five-Justice majority, so Troxel did not finally resolve the question of the constitutionality of grandparent visitation laws generally. The new case involved a Pennsylvania law that does not require a showing of harm as a predicate for a court to award grandparents’ visits over parental protest.

The Court also declined to examine the constitutionality of the former practice in a South Dakota county of requiring strip searches of all juveniles brought to a police station after any minor offense. The policy in Minnehaha County has since been modified by the state legislature. The denied case was Smook v. Minnehaha County (06-1034). The Eighth Circuit Court upheld the search that led to the challenge.

The Justices rejected an appeal seeking to test an equally divided Mississipi Supreme Court ruling that involved the admission of a confession to a crime that had been obtained illegally by police in violation of the suspect’s rights under Miranda v. Arizona. The state court found the admission was an error, but found that it was “harmless” because there was “overwhelming” evidence to support the conviction. The case was Haynes v. Mississippi (06-7827).

At 10 AM eastern, the Court will release an Orders List relating to its Conference of 3/23; we will bring you coverage of that as soon as it is released.

The Court will then hear one hour of oral argument in Leegin Creative Leather Products v. PSKS (see our preview here) followed by one hour of argument in Bowles v. Russell.

Transcripts of both arguments should be available sometime this afternoon.

In April 1911, Associate Justice Charles Evans Hughes stated a simple economic proposition: “The argument appears to be that, as the manufacturer can make and sell, or not, as he chooses, he may affix conditions as to the use of the article or as to the prices at which purchasers may dispose of it…But because a manufacturer is not bound to make or sell, it does not follow in case of sales actually made he may impose upon purchasers every sort of restriction.” In fact, said Hughes, such restrictions on resale rights are “obnoxious to public policy,” and thus illegal.

In other words, the Supreme Court was saying, once a product is sold, the right of property passes to the buyer, who can resell it at whatever price he wants and attempts to stop him are always illegal. That is what is known now as the “Dr. Miles rule,” from Hughes opinion in Dr. Miles Medical Co. v. John D. Park & Sons Co.

In layman’s language, the rule means that it is illegal for a manufacturer to bar a retailer of its goods from selling them at a discount; in legal parlance, it means that vertical “resale price maintenance” is per se (virtually automatically) illegal under the Sherman Antitrust Act.

On Monday, almost exactly 96 years later, the Supreme Court will hear argument on whether to cast aside the “Dr. Miles rule.” In the case of Leegin Creative Leather Products Inc. v. PSKS, Inc. (06-480), the Justices will consider whether — from now on — manufacturers should be legally free as a general rule to require retailers to charge only what the manufacturer says when the goods are sold in a retail store.

The case pits a maker of a line of women’s shoes, bags and other accessories, against a women’s outfitting store – Kay’s Kloset – in Lewisville, Texas, that was selling Leegin’s “Brighton” line of goods at discount prices. Leegin found out, and cut off the store’s supply of Brighton items, provoking an antitrust lawsuit. The Fifth Circuit Court, saying it had no choice but to apply the Dr. Miles rule, upheld a $3.6 million tripled antitrust damages award against Leegin because its attempt to control Kay’s Kloset prices was illegal. The Supreme Court put that ruling on hold while the case is on appeal.

Amid a welter of economic and legal arguments in the briefs, the Court finds only a simple legal question: should manufacturer’s resale price control policies now be judged on a case-by-case basis, applying normal legal and economic reasoning, or will the Court retain the notion that such policies are virtually always illegal?

Four attorneys will argue the case, beginning shortly after 10 a.m. Monday. Theodore B. Olson, the former Solicitor General and now a partner at Gibson Dunn & Crutcher in Washington, will argue for Leegin for 20 minutes, followed by Deputy U.S. Solicitor General Thomas G. Hunger, representing the federal government and arguing for ten minutes in support of overruling the Dr. Miles decision. Speaking for the Texas store will be Robert W. Coykendall of Morris, Laing, Evans, Brock & Kennedy in Wichita, Kan., followed by New York State Solicitor General Barbara D. Underwood, representing 37 states that want the Court to preserve the Dr. Miles rule.

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