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Wednesday Round-up

NPR’s Morning Edition has a story on today’s first case, Pottawattamie County v. McGhee, in which the Court will consider whether prosecutors can be held liable under Section 1983 for procuring and then using false testimony to convict a defendant.  At ACSblog, Prof. Emily Garcia Uhrig previews Wood v. Allen, in which the Court will hear oral argument this morning.  Wood, an Alabama death row inmate, alleges that his trial counsel was ineffective; as Uhrig explains, the case also involves the interaction between two sections of the Antiterrorism and Effective Death Penalty Act – one allowing for federal review of state court factual determinations and the other requiring a presumption in favor of such determinations.

The breaking news yesterday – also about a capital case – was that John Allen Muhammad, the so-called “D.C. sniper,” has asked the Court to stay his execution, which is currently scheduled for November 10.  As reported by the Washington Post, Wall Street Journal, and NPR, Muhammad claims that his counsel was ineffective in failing to introduce evidence of his mental illness at his sentencing.

Sentencing Law and Policy highlights this article in the Idaho Statesman on the local impact of the Court’s 2002 decision in Ring v. Arizona, which required that the aggravating factors necessary for death sentences be determined by juries.  Because jurors are far less likely than trial judges to sentence a defendant to death, prosecutors in Idaho are now seeking the death penalty less often.

Coverage of Monday’s oral argument in Jones v. Harris Associates continued yesterday.  The Washington Post and the Los Angeles Times offer synopses and some background on the lower court proceedings.  The Wall Street Journal has its own coverage here, emphasizing the potential impact of the case on mutual-fund fees, which approached $10 billion last year. At the WSJ Law Blog, Ashby Jones adds another recap of Monday’s oral argument.  He concludes that the Supreme Court may be willing to accept a more lenient standard for mutual fund fees – “within the range of what would have been negotiated at arm’s length in the light of all of the surrounding circumstances” – than did the Seventh Circuit.

Pundits continued to discuss Jones as well.  An opinion piece at the Wall Street Journal raises concerns about court intervention in the market for mutual fund fees, characterizing the lawsuit as “the trial bar’s latest attempt to paint a bull’s-eye on the mutual fund industry.”  It makes sense that mutual fund investors pay more in fees, the authors imply, because they invest a lot less than, say, institutional funds.  As part of the ongoing Jones forum at The Conglomerate, Brett McDonald expresses doubt about some of the principal arguments being made by both sides in Jones: contrary to what Harris Associates is arguing, market regulation probably has its infirmities; however, despite what Jones is arguing, neither the S.E.C. nor any other government body may be to serve as an effective caregiver.  A halfway solution, he suggests, is to allow courts to continue to review mutual fund fees using the “Gartenberg factors,” which tend to favor defendants but allow some big settlements.  Usha Rodrigues, in the same forum, has a post about the purported independence of mutual fund advisers and their boards of directors; she draws an entertaining analogy between advisers and Coke machines.  The most recent post by Gordon Smith examines Congress’s use of the word “fiduciary” in the statute at issue in Jones for the purpose of interpreting fiduciary duties.

Kent Scheidegger at Crime and Consequences points out a quip by Scalia that had the audience laughing at Monday’s oral argument in Beard v. Kindler.