 In this third and final part of our review of the just completed term, we'll consider first cases that continue the Court's re-examination of separation of powers in federalism. We also have a brief video segment about this term's Orisa case. Then we'll look at five cases involving application of the Hades Corpus statutes, and we'll close with cases involving copyright, punitive damages, and commercial arbitration. Let's turn now to segment one. This term may not have had as many blockbuster federalism in separation of powers cases as earlier terms, but the Court was hardly silent on these matters. Here to discuss four cases are Erwin Chemerinsky of the University of Southern California School of Law, and Ernest Young of the University of Texas Law School. Erwin, we included the first case Whitman v. American Truckeys, an EPA case, because it looked for a while that perhaps this would be the lopes of the delegation doctrine. It didn't turn out that way, nine to nothing. What did the Court decide in this challenge to my CPA rules? The Court held that the Cleaner Act is a permissible delegation of power to the Environmental Protection Agency. I think the significance of the cases shows that there's not going to be a revival with a non-delegation doctrine any claim soon. During the 1930s, in some famous cases, the Supreme Court struck down important federal laws as being an excessive delegation of power to administrative agencies. Since 1937, not one federal law has been struck down on delegation doctrine grounds. The DC Circuit here, though, struck down portions of the Cleaner Act as an impermissible delegation of power. The Supreme Court, in a unanimous opinion by Justice Scalia, held this as permissible. The Court was clear that statutes are allowed when they value power so long as they contain intelligible principles to guide the agencies in their exercise of discretion. And the Court found that here. That's right. Let's turn to federalism. Last year, it told us to watch for this case of a solid waste agency of Northern Coal County versus the Corps of Engineers. This involved a consortium of Chicago-area municipalities that wanted to turn a abandoned sand and gravel pit into a solid waste disposal site. Corps of Engineers would not give them a permit to do that, citing the Cleaner Water Act and the Court's own migratory bird rules. How does this case tie into the Court's general jurisprudence on federalism and commerce? The Court said that it interpreted the Cleaner Water Act to apply to interstate wetlands just because the presence of migratory birds and a serious constitutional doubts as the Congress had that up during the Congress bus. So the Court said it would interpret the statute narrowly to avoid the constitutional doubts. This is actually the second time in the last two years that the Court has interpreted the statute narrowly to avoid possible problems beyond Congress' Congress clause authority. The other case was the United States versus Jones in May of 2000, where the Court interpreted the federal arsenic narrowly to not apply to arsenic and dwelling to avoid constitutional solutions. I think what federal district courts are going to see is in many cases the lawyers and criminals in the case argue that federal statutes have to be interpreted narrowly to avoid possible constitutional issues regarding the scope of Congress' powers. That's what we saw in the last part of the program when we were talking about the immigration system as well. Let's turn now to the sovereign immunity case that's termed. This involves a suit under the American Disabilities Act. And I do two things, and I know it's not easy to do it quickly, but first tell us what the essence of the Court's sovereign immunity doctrine is now, and then why was Congress unable to abrogate the state's sovereign immunity under the ADA? Well, you have to understand two cases to understand this one. One is Seminole Tribe versus Florida from 1996. Seminole held not only that the state's sovereign immunity is much broader than the text of the London Amendment explicitly provides for, but that Congress can't abrogate that immunity when it acts under its Article I powers. Seminole also made clear, though, that Congress can abrogate the state's immunity when it acts pursuant to its power to enforce the Reconstruction Amendments, we usually call it the Section V power. A city of Bernie versus Flores from 1997 sets out the parameters of Congress' Section V power. And what the Court did in Gary was to hold that the ADA is not valid Section V legislation. What's Congress going to have to do in light of what they thought was quite a showing to advocate the Section V powers? Well, the Court focused on two aspects, really, of the statute. One was Congress' actual findings of discrimination, which the Court found lacking. Now, that would suggest that Congress could get a different result under the same statute if it simply goes back and does its homework a little better. But I think the more important fact was the fact that the proportion of activity that was prohibited by the statute that was actually unconstitutional was not sufficiently large. The City of Bernie says that Congress can regulate some activity by the states that's not actually unconstitutional, but that proportion has to be relatively small. The problem in Garrett is that the ADA sweepingly bans all discrimination against the disabled, yet the disabled are in a suspect class. Most discrimination against them is not unconstitutional. The Court's saying here that Congress, under those circumstances, can't enact the categorical ban. One of the things important to emphasize here is that the Court did not declare a title of one of the Americans that displays act unconstitutional as applied to state governments. In footnote nine of the majority opinion, Chief Justice Reynolds specifically says the law still can be applied to states through actions against individual officers that are next party young when sued by the federal government. Also, and I think it's notable, in footnote one Chief Justice Reynolds said the Court was not considering with a title two of the Americans that displays act that deals with discrimination by the government providing services whether that can be used to sue states directly. That's left with future litigation. Thanks very much, Ernie. Ernie, we mentioned in the first part of the program the Morrillard suit against Massachusetts Attorney General Irwin discussed the commercial speech aspects. We said I was going to ask you, and I will now, tell us a bit about the preemption aspect and the federal cigarette regulations. The preemption holding is actually quite broad. It has been held that all of the Massachusetts regulations were preempted as to cigarettes. The federal statute that did the preempting doesn't apply to smokeless tobacco or to cigars, and therefore the Court had to go ahead and reach the First Amendment issues as to those issues. But everything that government cigarettes was held to be preempted and what strikes me about that holding is the lineup here. Justice Stevens says in dissent that there's a certain irony in the Court's holding that the states are barred by federal law from regulating tobacco ads replaced within 1,000 feet of the school. After all, the five justices in the majority here are the same five that gave us United States versus Lopez, which said that the federal government can't regulate possession of guns within 1,000 feet of the school. Now, to be fair, the Commerce Clause and Preemption issues are quite different in many ways, but it does highlight what's become a recurring pattern on the Court, and that is that the supposedly more pro-states justices, people like Justice O'Connor here, Justice Scalia, actually tend to take a fairly broad view of federal preemption, while the supposedly more nationalist justices like Justice Stevens or Justice Breyer tend to be fairly protected. The state's regulatory prerogatives, at least in the preemption cases. Thank you very much, and thank you too, Erwin. Another context of federal statutory preemption, of course, is ERISA. Preemption has been a staple in the Court's docket for many years. We have a short segment on this year's ERISA case. Let's go to that now. In recent years, the Court seemed to shy away from finding preemption, but not in this term's case of Egelhoff the Egelhoff. David Egelhoff's life insurance plan with Boeing made his wife Donna the beneficiary. There was no question the plan was governed by ERISA. Then the Egelhoff's divorced, and David died and tested. His son and daughter from a previous marriage sued for the insurance proceeds. They relied on a Washington state law that said in a situation like the Egelhoff's, designation of a spouse as the beneficiary of an insurance plan is revoked upon divorce. The question, does ERISA preempt such a state law? Yes, said the Supreme Court in the 7-2 decision. Justice Thomas' opinion for the majority said the courts must look to ERISA's objectives to determine what state laws would survive preemption. Here, he said, the state statute has an impermissible connection with ERISA insurance plans. It binds ERISA plan administrators to a particular choice of rules for determining beneficiary status. Moreover, it interferes with nationally-uniformed plan administration. If ERISA doesn't preempt this type of statute, some ERISA plan administrators might have to master the relevant laws on 50 states. That, said the court, is precisely the burden that ERISA preemption was intended to avoid. That concludes our look at the court's separation of powers and federalism cases. We'll take up habeas corpus in a moment. The court continued its efforts to clarify the statutory and case law governing state and federal inmates' use of habeas corpus, especially as affected by the occasionally imprecise language of 1996 anti-terrorism and effective death penalty act, the AEDPA. Here to discuss five cases are Lori Levinson of Loyola Law School, Los Angeles, and Erwin Schumereski. Lori, we start with two cases that don't involve the AEDPA, at least directly. They involve how to attack state convictions used in federal sentencing guideline determinations in criminal history score. Daniels v. the United States involved a federal conviction, and whether or not habeas corpus could be used to attack state convictions. It was a prior case of other efforts to attack those convictions. What did the court say here? What the court said in Daniels is that a 22-55 motion cannot be used to laterally attack state convictions that were used to enhance the federal sentence under the Armed Career Criminal Act. In other words, while that defendant was in state custody and going through the state appellate process and the state habeas process, that was the time to attack those convictions. I think the court made this ruling for a good reason. We'll promote the finality of judgments, and it says that's the best time to have all the facts present in front of the court to make those judgments. So it's too late by the time of the sentencing hearing. And this is really a continuation of what the court had held in the CUSTAS case, that you cannot do these type of attacks at the time of the federal sentencing. With one exception? Yes, one big exception, which is if you have a conviction that was obtained without the right to counsel. Now, for a state sentencing hearing, what's the law there? There was a decision the same day. If Lackawanna was decided the same day with the same result, the court said basically Daniel's reply is here too. It cannot use the plight of all time. Those are both five to four decisions. Right. Excellent. Erwin, let's turn now to the language of the AEDPA. And we're talking here about a specific portion. It's codified at 2244D. It has to do with a one-year limitation in the Act about filing habeas petitions. Let me just read the portion here because we're going to be referring to it several times. At the time during which a properly filed application for state post-conviction or other collateral review as pending should not be counted toward any period of limitation under this subsection. Now, the key phrase here, the subphrase, is that terrorism and effect of death permit generally creates for one year of statute of limitations of filing habeas petitions. It specifically says that that time period is told if this filed in state court is properly filed a petition for post-conviction relief in the state system. States have argued that a petition is not properly filed unless there's no tolling if it's a situation where the reclaim is presented or the procedural defaults by the defendant in the state court. Justice Scalia writing for unanimous court rejected the argument. Justice Scalia said that properly filed affords to the formal asseders of the grant of filing to properly dock it with the clerk. It doesn't refer to substantive matters. It doesn't refer, for example, where the petition presents claims that were procedurally defaulted. So properly filed is procedural like substantive? That's exactly what this says. Okay, thanks. Now let's go to the same language story but a different set of words within that provision. Let's read it again. The time during which a properly filed application for state post-conviction or other collateral review is pending should not be counted. And the question in Duncan v. Walker is what state modifies? Does it modify only post-conviction or does it modify collateral review? Let me just give the facts of this case. There's a chronology here that will put this in context. On April 10th, 1996, Sherman Walker filed a federal habeas petition. Two weeks later, April 24, 1996, the AEDPA becomes effective. The one-year period kicks in. Not the one in the statute but the one of the courts of appeals have all adapted for free AEDPA convictions. So one-year limitation period starting April 24. Three months later, July 9, 1996, the district court dismissed the petition. He said he hadn't exhausted his state remedies. Then over a year later, on May 20, 1997, a year after the effective date of the act, Walker returned with the second petition. The district court said it was time-barred. Court of Appeals said no. He gets credit for that three-month period there because it said the court of appeals state modifies other collateral review. The court didn't see it that way. Right. The Supreme Court did not. The court said the Supreme Court, the state modified both the collateral review as well. It was only the state habeas corpus petitions that were told the statute, not the federal one that was filed. Now I think this raised some great concerns among the dissent and other members of the court because what about the situation where you have a federal petition that's filed and it's not dismissed out until after the time is gone that could create a great injustice. And we know statistically that most habeas corpus petitions are dismissed. I think something like over 60%. And of those, more than 50% of them are dismissed because of failure to exhaust. So this could pose a hardship unless the courts find some way around it. Well, Justice Stevens suggested one that you comment about it. Right. What Justice Stevens said is what the federal judges might do in a situation where they don't want the petitioner to lose all his rights is to basically stay the federal proceeding while the petitioner goes back and exhausts the state proceedings. And it was also noted that this decision could backfire because you could have more federal judges finding an exhaustion of state remedies where they might not have found it before. Okay. Thanks very much. Let's go now going to one more provision of the act, a different provision though. This is Tyler versus Cain. This has a big retroactivity. Melvin Targ was convicted in Louisiana murder in 1975. He filed a variety of petitions, including the federal habeas petition. In 1990, in the case of Cain versus Louisiana, the court has validated a jury charge that was subsequently identical to the one that was used in his trial. So he came back with more petitions, including the second habeas petition, federal habeas petition, filed after the AEGPA. So in this case, he had to show or he elected to show. Let me again read the words of the statute. This is 2244 again. You have to show that his claim relied, here quoting, on a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court that was previously unavailable. The question is, how did the court interpret this race, made retroactive by the Supreme Court? Well, the court interpreted it very narrowly. What Justice Thomas said was that made retroactive meant that the Supreme Court made it retroactive. It meant that by itself and that you could not put together several of the court's opinions. Even though in this case, he had a pretty good argument. He said, look, it's just like Cain versus Louisiana. Then in Sullivan, the Supreme Court had said this type of jury instruction error was structural. It was not harmless. That would seem to meet the take standard, and therefore, in this situation, it should be seen as retroactive. The Supreme Court said, no, we have to expressly say that it's retroactive. The counter does leave open the possibility that you could have multiple decisions by the court that make something retroactive, but it has to be very clear in the holding of the cases. It really is almost a magic word situation. The Supreme Court has to say explicitly, and it has to be explicit, and it has to be in the holding. It can't be indicative that this is a decision that's made retroactive. Even if we've done it here, that wouldn't help Tyler. It wouldn't help Tyler because it has to have been made retroactive before he violates his petition, so he doesn't get any benefit if it is made retroactive later. Thanks, Lord, and thank you, Irwin. We'll return in a moment to conclude the programs and cases involving commercial litigation. Copyright, Petitive Damages, and arbitration. Here to discuss these cases are Irwin Chemerinsky and Ernie Younger. Ernie, let's start with the last of the technology cases we've made since two in the start of the program. This involves the suit by Jonathan Tasini, the freelance writers against the New York Times, and other fairly big publishers who paid them for their original contribution, but then provided those articles to online databases like Lexis and Exis without permission, and there was a lawsuit over that. Let's just get some of the words down here. Copyright Parwin said that the Times or a magazine that carried the article originally is a collective work. The freelance article was a contribution. In addition here is this language from the Copyright Act as it was amended in 1976. This is the owner of the copyright and the collective work, and I'm quoting now. The privilege has the privilege of reproducing and distributing the contribution as part of that collective work, and any revision of that collective work and any later collective work in the same series. The question is, are these electronic databases revisions of the collective work? What do the courts say? Data services like Lexis, Exis, and also CD-ROM calculations aren't revisions of the original news piece because they don't reproduce the articles in their original context. A couple things to keep in mind and think about. First of all, is that Section 201c applies only in the absence of a contract that allocates the rights. The industry practice now is mostly to have explicit contracts that allocate these rights. And so the most interesting cases in the end may be cases that interpret frequently used contract terms. For instance, the Federal District Court just held this month that the second people. Right now there's a lot of ours. Let's go to the Penitent of Damages case. This arose out of a complicated dispute over utility knife. But the key question here is, when it falls to advertising claim, the jury in the Federal Court case awarded Leatherman Tools $50,000 in compensatory damages, $4.5 million in Penitent of Damages. And Cooper Industries complained to the judge that this was excessive under the Gore v. BMW standard. And the Court of Appeals for the Ninth Circuit said, well, you may have an argument, but the standard of review were applying instant in the discretion of the District Court. So it appealed it. Now, what did the Supreme Court say? The Supreme Court reversed the Ninth Circuit here. In the BMW v. Gore in 1996, the Supreme Court said that grossly excessive Penitent of Damages was violated to process. The Supreme Court here said whether an awarded Penitent of Damages is grossly excessive is a question of law and the appellate court should review it. And how about that's rejected the Ninth Circuit is an abusive discretion standard? I think that this decision creates a real burden on District Courts to create a clear record just to facilitate it. Let me ask you another question. In commenting on this decision, several have said that the District Court has not only always been record, also has, well, Penitent of Damages can do a very, very, well-bearing gatekeeping review in terms of what goes to the jury and what goes back to the jury. With this thing which is too different, one is gatekeeping in terms of what goes to the jury. That's where the doubt bearers about what we're going to say to the evidence. The latter is gatekeeping in the sense of reviewing the jury's awarded Penitent of Damages. This case involves the latter. It emphasizes that District Judges do have to carefully review Penitent of Damages. Make sure that that grossly excessive District Courts need to know that the appellate court is going to review that on a development standard. This is nothing that in our decision today suggests that the Seventh Amendment would permit a court in reviewing a Penitent of Damage Award to disregard jury findings of fact. That's an important point. The court has tried to traditional distinction between appellate review and fact. The jury is finding a fact that's an issue that can be now appellate review on the Seventh Amendment. But when it's a question of law, whether the award is grossly excessive, there is a question of law, and that's the review of Donova. This turned three Plenary Decisions and one Purcurium all upheld the use of commercial arbitration in employment and in other disputes. We've prepared a short review of these cases. Let's run that video now and we'll return to discuss some of the implications of the most closely watched of the four cases, involving mandatory arbitration of employment disputes. Circuit City v. Adams involved the Federal Arbitration Act, or FAA, an employment contract. St. Clair Adams took a job with Circuit City. He signed an agreement to settle all employment disputes by binding arbitration. Two years later, he sued Circuit City in State Court. Circuit City then sued the Federal Court to compel enforcement of the arbitration clause. The Act says Federal Courts should enforce arbitration clauses involved in commerce, but it excludes from coverage contracts that involve semen, railroad employees, or any other interstate commerce. Does the Act exclude only transportation workers or all of them, or decision that the Supreme Court affirmed Circuit City's right to compel arbitration? And held the Act excludes only transportation workers' contracts? Justice Kennedy based his decision on cannons of statutory construction. Cases before the Court next arbitration clauses. There will no doubt be additional arbitration proceedings, now that employers may insist on using contractual arbitration. The second case, Green Tree Financial v. Randolph, also involved contracts that disputes a rise in employment would be settled by arbitration. Randolph sued Green Tree, alleging violation of the Truth and Landing Act. Green Tree asked the District Court to compel arbitration. It did so. Two questions. First, was the District Court order compelling because it occurred in an embedded proceeding involving both arbitration and other claims? Here, resolving the split among the circuits, the Chief Justice said that the FAA did not recognize the distinction between embedded and independent proceedings. Second, was the arbitration clause unenforceable because its potentially large hidden cost would force Randolph to forego her claims? No. There is a liberal federal policy favoring arbitration agreements, a party that wants to invalidate an agreement fearing prohibitive costs bears the burden of showing the likelihood of incurring such costs, which Randolph failed to do. The third case, Eastern Associated Coal involved the Court's long-standing recognition of the national policy favoring labor arbitration, except what an award is contrary to the Eastern Coal to be instilled through. The Arbitrator conceded and failed the Cantor's Association. The Court reinforced another lawyer's decision. You're going to see on several levels shares that you'll be litigated. As the segment of sight indicated, there are going to be issues about the availability of discovery and the scope of the discovery in arbitration proceedings and many cases raising issues about the relationship between the Federal Arbitration Act and state laws. Our state laws that conclude the Enforcement of Arbitration Clause now preempted the answers, yes, after Circuit City vs. Adams. Also, to what extent can there be challenges based on state unconscionability principles that's contracts that have arbitration clauses? All of these and so many of these are left to be litigated after Circuit City vs. Adams. This concludes the Federal Judicial Center's fifth edition of Supreme Court Determine Review. Many thanks to our faculty, not only for describing and commenting on the cases, but also for helping us structure and plan the program. Thanks to our Judicial Education Advisory Committees for guidance on case selection. Thanks also to Senator Director Fern Smith and Judicial Education Director John Cook for guidance on the program. And thanks finally to you for joining us.