http://www.scotusblog.com/wp/the-week-ahead-26/ The Supreme Court of the United States blog Thu, 26 Jun 2008 21:56:34 -0700 http://wordpress.org/?v=2.8.5 hourly 1 http://www.scotusblog.com/wp/the-week-ahead-26/comment-page-1/#comment-14715 Roger Friedman Tue, 19 Feb 2008 22:42:11 +0000 http://www.scotusblog.com/wp/uncategorized/the-week-ahead-26/#comment-14715 Well ouch, I was stung by Breyer and Roberts' absence. Ginsburg and Souter for the respondent, Scalia and Thomas for the petitioner; Alito, Stevens and Kennedy on the fence. If not reversed outright, it will be sent back to FERC to see if the particular contract was affected by market manipulation by one of the parties. Probably not sufficient to show manipulation by one of the parties in the spot market or by others in the forward market. Replacing a "practically insurmountable" standard with a virtually impossible one. Blame it all on Enron and the bankers walk -- theme of the term. Well ouch, I was stung by Breyer and Roberts’ absence. Ginsburg and Souter for the respondent, Scalia and Thomas for the petitioner; Alito, Stevens and Kennedy on the fence. If not reversed outright, it will be sent back to FERC to see if the particular contract was affected by market manipulation by one of the parties. Probably not sufficient to show manipulation by one of the parties in the spot market or by others in the forward market. Replacing a “practically insurmountable” standard with a virtually impossible one. Blame it all on Enron and the bankers walk — theme of the term.

]]> http://www.scotusblog.com/wp/the-week-ahead-26/comment-page-1/#comment-14697 Roger Friedman Mon, 18 Feb 2008 18:27:49 +0000 http://www.scotusblog.com/wp/uncategorized/the-week-ahead-26/#comment-14697 Re American Electric Power: Paul Clement sure is a master of sophistry. He starts with a statute that directs FERC to set just and reasonable rates, and to modify tariffs and contracts as necessary to assure just and reasonable rates; then he says that, because there is more than one way of determining whether rates are just and reasonable, FERC has the power to determine what is meant by just and reasonable rates; that just and reasonable rates means recognition of the "central importance of the stability and reliability of longterm contracts" without regard to the level of rates or the conditions of contract formation; and that courts must give Chevron deference to this interpretation. So I count for the respondents Kennedy (California ties); Breyer (he couldn't save the sentencing guidelines, can he save deregulation); Stevens (probably a rate-of-return traditionalist); Roberts and Ginsburg (DC Circuit hates FERC, but Scalia believes in liberty of contract and Thomas believes in NASCAR). Don't look for endorsement of the 9th Circuit (right-wing hates it), Christoper Wright did a good job of emphasizing the ALJ's use of a "practically insurmountable" standard. Morgan Stanley has neutralized its fat cat advantage by hiring Walter Dellinger to argue (right-wing hates him), Ted Olson would have been a better choice. Re American Electric Power: Paul Clement sure is a master of sophistry. He starts with a statute that directs FERC to set just and reasonable rates, and to modify tariffs and contracts as necessary to assure just and reasonable rates; then he says that, because there is more than one way of determining whether rates are just and reasonable, FERC has the power to determine what is meant by just and reasonable rates; that just and reasonable rates means recognition of the “central importance of the stability and reliability of longterm contracts” without regard to the level of rates or the conditions of contract formation; and that courts must give Chevron deference to this interpretation.
So I count for the respondents Kennedy (California ties); Breyer (he couldn’t save the sentencing guidelines, can he save deregulation); Stevens (probably a rate-of-return traditionalist); Roberts and Ginsburg (DC Circuit hates FERC, but Scalia believes in liberty of contract and Thomas believes in NASCAR). Don’t look for endorsement of the 9th Circuit (right-wing hates it), Christoper Wright did a good job of emphasizing the ALJ’s use of a “practically insurmountable” standard. Morgan Stanley has neutralized its fat cat advantage by hiring Walter Dellinger to argue (right-wing hates him), Ted Olson would have been a better choice.

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