Friday Round-up

By Anna Christensen
on Nov 6, 2009 at 10:10 am

Coverage of Monday’s oral argument in Jones v. Harris Associates continues.  Conglomerate has three articles on the case: a piece by William Birdthistle assesses the case’s implications for the executive branch, highlighting the ten-minute appearance by Assistant to the Solicitor General Curtis Gannon on behalf of the United States, while Renee Jones argues that the questions raised by Jones “reflect an apparent shift in how judges and government officials are thinking about the role of government in business.”  Emphases on “independence” and “market efficiency” in the context of pay decisions, Jones argues, are “beginning to lose force,” suggesting that the government might adopt a more active approach to compensation issues in the future.  Joan Heminway, also writing for Conglomerate, addresses the ambiguity over what Congress meant by the term “fiduciary duty,” one of the key issues at stake in Jones.  At The Atlantic, Mike Conkzal covers the case, describing the lower-court proceedings and clarifying the key questions before the Court.

Also recapping this week’s arguments, several sources have coverage today of Wednesday’s oral argument in Pottawattamie County v. McGhee.  At USA Today, Joan Biskupic presents the background and recaps the oral argument in the case, in which the Court will decide whether prosecutorial immunity still applies if a prosecutor falsifies evidence and testimony to frame a defendant.  UPI describes an alleged split among the Justices on the issue, while Jurist covers both Pottawattamie County and Wood v. Allen, linking to the lower court rulings in both cases.

Several news outlets have coverage of Graham v. Florida and Sullivan v. Florida, the juvenile life-without-parole cases that will be argued on Monday.  Newsweek’s Krista Gesaman has an in-depth discussion of the international debate over juvenile life without parole, outlining the arguments on both sides of the issue and noting the shift brought about by the Court’s 2005 decision in Roper v. Simmons, which banned death sentences for juvenile offenders.  Slate has an article by Amy Bach recapping the case of Joe Harris Sullivan, whose conviction arises from the robbery and rape of an elderly woman committed when he was only thirteen.  Although the Court won’t be addressing the fairness of Sullivan’s trial on Monday, Bach reports, the process was “so pathetic that it raises questions about whether Sullivan committed the crime in the first place” and may “reflect[] a deep and basic failure of ordinary criminal justice.”  Also at Slate, Dahlia Lithwick previews Sullivan and Graham, noting in particular the possibility that the Court could rely – as it did in Roper – on neuroscientific evidence that basic structural differences exist between juvenile and adult brains, which reportedly puts teens at greater risk of acting impulsively and in response to peer pressure.

Looking further forward, Balkinization’s Rick Pildes previews Free Enterprise Fund v. The Public Company Accounting Oversight Board, in which the Court will hear arguments in early December.  The case will address congressional and executive control over administrative entities, and may call into question certain aspects of the Sarbanes-Oxley Act of 2002.  The case, Pildes posits, could have direct implications for the new policy measures being considered by Congress in light of the current financial crisis.  Also addressing Free Enterprise, the Vanderbilt Law Review’s “En Banc” supplement has published a roundtable on the case; the Volokh Conspiracy links to the material.

Also at Volokh, Randy Barnett previews an upcoming panel hosted by the Georgetown Law Journal on McDonald v. Chicago.  The panel, which is to take place next Friday, will feature Barnett, Alan Gura (lead counsel in DC v. Heller), Kurt Lash, and David Gans, and will address the case’s potential impact on the privileges and immunities clauses.

Recalling last Term’s ruling in Gross v. FBL Financials, Michael Zimmer of Concurring Opinions has a piece addressing the case’s unexpected implications for employment discrimination law.  In particular, Zimmer emphasizes the Court’s decision to shift the focus of the case from whether plaintiffs must present direct evidence of discrimination in certain claims to whether a plaintiff bringing such a claim must prove that his or her age was the “but-for” cause of the discrimination.  The Court’s reasoning behind this shifting focus, Zimmer speculates, might lie in the Justices’ desire to avoid the “messy” question of what constitutes direct evidence; alternatively, he notes, the Justices might have shifted their focus based on the changes in the Court’s composition since it last addressed similar discrimination issues. Also looking to the last Term, and in particular to the Court’s ruling in Caperton v. Massey, ACSblog covers the Wisconsin Supreme Court’s recent adoption of a judicial conduct rule providing that campaign contributions alone cannot compel judicial recusal.

At Politico, Josh Gerstein has an article on the Court’s recent decision to solicit the views of the Solicitor General on a case involving Arizona’s attempt to require employers to verify their potential employees’ immigration status.  This development, Gerstein writes, puts Homeland Security Secretary Janet Napolitano in a difficult position, as she was named as a defendant in the litigation.  It is not yet clear whether Napolitano will decide – or be required – to recuse herself from the matter.

In light of the five-year anniversary of the Court’s decision in United States v. Booker, Sentencing Law and Policy has several pieces today discussing the use of federal sentencing guidelines as advisory rules rather than legal requirements.  One article recaps a recent Wall Street Journal piece on the use of the new sentencing guidelines in white-collar prosecutions, while a second piece speculates on Booker’s relationship to federal sentencing disparities.

At ACSblog, Melvin Urofsky previews his new biography of Justice Louis Brandeis, focusing on the Justice’s influence on our current understanding of the constitutional right to privacy.  Brandeis, Urofsky writes, published an 1890 article (along with his law partner, Samuel Warren) in the Harvard Law Review drawing on the Fourth and Ninth Amendments, and on tort law, to present the novel idea of a right to privacy; the article became “one of the most cited articles in American legal history,” and served as the precursor to Brandeis’s notable record on privacy rights.

Senator Arlen Specter, who has repeatedly called for Supreme Court sessions to be televised, has taken note of the Justices’ apparent penchant for the camera, The BLT reports.  Speaking on the Senate floor, Specter pointed to recent interviews on ABC and CBS, telling his colleagues that “We cannot accept the justices’ plea for anonymity when they so regularly appear before the camera.”  Specter also noted that the notoriously camera-shy Justice Souter has retired, perhaps paving the way for a more television-friendly Court.