Monday Round-up: Afternoon Edition

By Anna Christensen
on Nov 2, 2009 at 4:24 pm

Discussion is already turning to this morning’s orders, which we covered and analyzed earlier.  At the Wall Street Journal, Dow Jones Newswire’s Kristina Peterson addresses the Court’s denial of cert. in a drug-patent dispute between generic drug manufacturer Apotex Corp. and patent-holders Sanofi-Aventis and Bristol-Myers Squibb, while the Associated Press has coverage of the Court’s decision not to hear an appeal to stop the release of documents relating to sexual abuse lawsuits against Roman Catholic priests in Connecticut.  The AP also reports that the Court will address the legality of decisions made by only two members of the National Labor Relations Board, and the Wall Street Journal has an article on the Court’s decision to let stand a government fee imposed against Daewoo Engineering and Construction Co.; the company was found to have failed to submit a fully accurate claim for government funding.  (Disclosure: Akin Gump represented the petitioner in the case.)  The Court also let stand a ruling permitting prosecutors to charge a Ku Klux Klan member with kidnapping more than 40 years after the alleged crime took place, according to the AP.

At Crime and Consequences, Kent Scheidegger discusses petitions that didn’t make the order list this morning.  He focuses on Justice Stevens’ and Scalia’s dissents in the dismissal of the certified question in United States v. Seale.

After oral arguments this morning, the media is already covering the case heard that got the most pre-argument attention, Jones v. Harris Associates. In the case, the Court will consider the standard to be applied to review the fees charged by investment advisors.  At Conglomerate, Michelle Harner, while acknowledging that courts should have “the flexibility to consider market standards and competition,” expresses discomfort with the level of deference the Seventh Circuit opinion on appeal showed the markets.  NPR also zeroes in on the underlying issue of the higher rates that mutual fund advisers generally charge their captive funds versus their institutional investor clients, presenting opinions on both sides.

The blogs and news outlets already spent the weekend gearing up for today’s argument in Jones v. Harris.  Robert Barnes writes in Sunday’s Washington Post that the case could spur “years of judicial review of the measures that the Obama administration and Congress have taken” with regard to the current economic crisis; Barnes also points out that the abundance of business cases before the Court this term will pose an “interesting test” for Justice Sotomayor, given her background in corporate law.  A New York Times editorial urges the Court to limit the ability of financial advisors to overcharge their clients; at Reuters, Ross Kerber and James Vicini preview the case, noting that it will represent a “high-stakes test” for the financial sector at a time of unprecedented volatility.  Conglomerate’s Larry Ribstein also has a preview of Jones, in which he offers an analytical framework for understanding the policy questions raised by the case.

The Wall Street Journal published three pieces on Jones over the course of the weekend: a Friday article analyzes the implications the case might have for the directors of mutual funds, many of whom are concerned that Jones might create a new standard for investment advisory fees; an opinion piece in Sunday’s paper argues that a rejection of the current practice for investment advising could open a flood of litigation, with negative implications for the “vast majority” of investors; and the WSJ Financial Adviser blog offers a helpful summary of the issues at stake.  This morning the WSJ Law Blog points out that Seventh Circuit judges Richard Posner and Frank Easterbrook, both known for their market-based views of the law, split over the question of whether markets are a good way to regulate money-management fees.

The New York Times has an article on the Court’s recent decision to let stand a ruling that blocks disclosure of the names of those who signed a petition in support of a bill which would overturn new “domestic partnerships” legislation in the State of Washington.  Author William Yardley speculates that the controversy may have far-reaching implications for the question whether petition signatures constitute constitutionally protected speech.

In Sunday’s L.A. Times, David Savage covers the case of Fernando Belmontes, who is currently on death row in California for a 1982 killing.  The Court is now considering Belmontes’ sentence for the third time; the Justices have been asked on two previous occasions to re-consider Ninth Circuit rulings overturning the conviction on the ground that the failure of Belmontes’ counsel to inform the jury of his traumatic childhood constituted “ineffective assistance.”  Savage notes that the case is emblematic of a “long-running war” between California prosecutors and the Ninth Circuit over the use of death sentences in the state.

At UPI.com, Michael Kirkland speculates on the current Court’s stance with regard to abortion, highlighting in particular Justice Alito’s record.  Kirkland also addresses two recently enacted Oklahoma laws: one requires women seeking abortions to fill out lengthy questionnaires, the results of which would be posted online, while the other requires a woman seeking an abortion to listen to a doctor’s description of the fetus during an ultrasound.  Both laws are currently being challenged in state courts and could present an opportunity in the near future for the Supreme Court to once again address the abortion issue.

Looking back at October’s orders, The Raleigh News and Observer has a story on a lawsuit filed by former Pfizer employee Jim Dotson, who was fired after adopting a chronically ill baby from a Russian orphanage, to which he donated 24 rounds of a pediatric antibiotic.  Dotson sued Pfizer under the Family and Medical Leave Act, and in October the Supreme Court let stand a Fourth Circuit ruling in his favor.

In the wake of the Court’s decision last summer in Caperton v. Massey Coal (08-22), the National Law Journal’s David Ingram reports at Law.com that the House Judiciary Committee will soon address the federal recusal guidelines which were at issue in the case.  Recalling a 2004 controversy in which House Democrats criticized Justice Scalia for failing to recuse himself from a case involving Dick Cheney, with whom the Justice had socialized, Ingram writes that recusal standards can be “complicated” and are governed by a number of factors.

Suspected al Qaeda agent Ali Saleh Kahlah al-Marri has been sentenced to eight-and-a-half years in prison, Jurist reports.  Last year, the Supreme Court granted cert. in al-Marri’s challenge to his indefinite detention at a South Carolina naval brig, but the case was dismissed when the federal government transferred him to the custody of the Department of Justice to face criminal prosecution.

A piece published Friday at Sentencing Law and Policy speculates that the Court may soon take up constitutional issues implicated by state-imposed restrictions on sex offenders.  The blog reports that Kentucky Attorney General Jack Conway plans to appeal a ruling by his state’s supreme court that a restriction on sex offenders’ residency is unconstitutional; Conway has asked SCOTUS to delay implementation of that ruling while cert. is pending.

According to Jeffrey Tomich of the St. Louis Post-Dispatch, Monsanto has asked the Court to review a decision banning the planting of genetically modified alfalfa pending a review of the crop’s environmental impact.  The case in question was brought by a coalition of alfalfa growers and environmental groups, who sued the Department of Agriculture for approving Monsanto’s genetically modified plants.

Concurring Opinions links to the October issue of the UCLA Law Review, which includes a piece addressing the ongoing conflict between the protections enshrined in Lawrence v. Texas, which the Court decided in 2003, and the vulnerability inherent in interpersonal relations under the Fourth Amendment.  Also drawing on past Court decisions, Suja A. Thomas of the University of Illinois assesses the new summary judgment standards implemented by Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly.

Part of the early blog coverage of the Jones oral argument was a humorous post by Tony Mauro on the BLT.  Apparently due to an attempted resetting for Daylight Savings Time, the clocks in the Courtroom were thrown off kilter, reading 6:20 when the first session began and then unnaturally accelerating to just past 11–leaving the Court with an “Alice in Wonderland quality” throughout the argument.