 You're watching FJTN, the Federal Judicial Television Network. The Federal Judicial Center presents Supreme Court 1999-2000, The Term and Review, an FJTN program for judges, staff attorneys and law clerks. Now from the television studios of the Federal Judicial Center in Washington, D.C., your moderator, Russell Wheeler. Hello, and welcome to the Federal Judicial Center's annual review of the just completed term of the United States Supreme Court. This term, the court gave full, plenary review to fewer than 80 cases. Those cases adjudicated contentious questions of free expression and personal liberty, defined rules governing the contest between the government and criminal defendants, and with prisoners seeking review of their convictions, and helped shape relations between nation and state and among the three branches of government. Other cases interpreted statutes governing commercial relations and the jurisdiction of the federal courts. With help from our board, our Judicial Education Committees, and Center Director Fern Smith, we've selected 48 of this year's cases that we think will be of greatest interest to federal judges and their staffs. We've divided the program into three parts, each about 35 minutes long. Your written materials have summaries of the cases we'll discuss, in the order we'll discuss them, and brief biographies of the law professors who will be describing and commenting on the cases. They are well qualified not only to summarize the court's work, but also to provide different perspectives on this term's holdings. For additional perspectives, we've included conversations with Judge Fern Smith on some of this term's criminal procedure cases, and with Judge Thomas Ellis about four cases involving the substance and procedure of habeas corpus. Your written materials also include a one-page evaluation form. Please take a moment to fill it out and fax it to us at the number on the form. The information helps us to decide whether to continue to present programs like these, and if so, how to improve them. In this first part of the program, we'll take up civil rights and civil liberties cases, First Amendment and otherwise, and then cover a few cases involving commercial litigation. We'll start the program with seven cases involving the First Amendment, and here to discuss them are Susanna Sherry of the University of Minnesota Law School, and Jordan Stiker of the University of Texas School of Law. Susanna, last year at this time, we commented on the dearth of First Amendment cases. We can't say that this term. No, there were quite a few this term. Let's start with one of them involving the Boy Scouts. You know, of course, in the 1980s, the court told the JCs and another group that their men-only membership policies would not stand in the face of state anti-discrimination laws. Now this year, James Dale asked the court to tell the Boy Scouts that their policy-prohibiting gay scout leaders could not stand in the face of a New Jersey statute, and the court did not agree. No, the court didn't. Unfortunately, the case ends up raising more questions than it answers. With a little bit of background, the Scouts terminated James Dale because he was openly gay and they did not want him as an assistant scout master. The New Jersey courts determined that the New Jersey Public Accommodations Law prohibited that kind of discrimination. The Boy Scouts claimed a First Amendment right to discriminate, and five to four, the Supreme Court agreed with them. The Chief Justice Rehnquist's majority opinion was somewhat spare, but it has some fairly broad implications. After existing precedent, the court had to answer two questions. Would forcing the Scouts to retain Dale as a scout master impair their ability to disseminate an anti-homosexual message, or would it constitute compelled speech? Would it be compelling them to disseminate a contrary message? So the court first had to find that the Boy Scouts did indeed have an anti-homosexual message as part of their core expression. And in order to do that, Chief Justice Rehnquist simply deferred to the Boy Scouts litigation posture. In fact, there was no evidence that they had ever expressed an anti-homosexual sentiment or expression before, and they discouraged their scout masters from discussing sex with the Scouts at all. The court also deferred to the Boy Scouts' determination that forcing them to retain Dale would impair their ability to express their message, despite a New Jersey State court finding a fact to the contrary. And the court found that forcing them to retain Dale would communicate a message of endorsement of homosexuality. Again, there was very little evidence of this. Apparently, Dale's own Boy Scouts didn't know that he was gay, and of course the Boy Scouts have traditionally welcomed everybody, and this might be viewed as a message of tolerance rather than a message of endorsement. And then finally, of course, the court had to determine that there was no compelling state interest on the part of New Jersey. Unfortunately, the court did not discuss whether New Jersey might have an interest in eradicating other kinds of discrimination. Susan, does this case have some potentially radical implications for other state anti-discrimination efforts? Yes, I think it might make it quite difficult for states and the federal government to enforce some of their anti-discrimination mandates. For example, if a college which, like the Boy Scouts, is an expressive organization claims that it has a core message either of diversity, which would require it to engage in affirmative action, or a message of racism, for example, which would require it to discriminate, it's not clear that either state or federal anti-discrimination laws could prevent that. Do you think the significance and breadth of the decision might turn on whether or not the court is as deferential to other organizations as it was to the Boy Scouts in this case about the expressive associational need? Yes, the deference is clearly the key to this case's breadth. And actually, I think the court probably will not go very far with it. This may end up being limited to protecting discrimination against gays. Let's turn from a freedom of association to freedom of expression and discuss this case coming out of Colorado that involved a Colorado ordinance that creates a bubble zone around persons going in and out of health care facilities. Hill and others violated the ordinance. This case is reminiscent, I think, of earlier cases involving access to health care facilities and abortion clinics, which was initiated in this case. Only those were based on injunctions. Here we have a statute. Comment on that, would you? And this time the court upheld it. But if Dale was the gay discrimination exception, this is the abortion picketing exception to the First Amendment. I think the court takes an approach and allows restrictions that they would not do in other contexts. The court did so by saying that the eight-foot bubble was more justified and less intrusive on First Amendment rights than regulations and injunctions that it had struck down in the past. And Justice Stevens said that it struck an acceptable balance between the rights of the speaker on the one hand and the rights of the unwilling listener on the other. The court applied ward v. rock against racism, which is the case it uses for content-neutral restrictions on speech. They did so despite the fact that the regulation was triggered only if the listener decided that it was unwanted speech, and that, of course, turns on content. And despite the fact that the avowed purpose of the statute was to protect listeners from emotional trauma, which again turns on the content. But once the court determined that this was a content-neutral restriction, the court easily found that it was narrowly tailored to serve a significant governmental interest and left open ample alternative channels of communication. Nevertheless, I think the court is treating these cases very much like it used to treat obscenity cases sort of on a case-by-case basis and, unfortunately, offering very little guidance to the lower courts. In either situation. In either situation. Thanks, Xana. Jordan, let's talk about another state statute. This is a state statute regulating campaign contributions. Of course, federal campaign regulations is a topic this year in the election. This is the case of Missouri v. shrink Missouri, this PAC. And it set limits on campaign contributions, which the Court of Appeals threw out. The Supreme Court sustained them. Similar, I guess, reasoning to Buckley? The court doesn't vote Buckley here. The Missouri initiative had limited contributions ranging from $250 to $1,000, depending on the office at stake and the size of the constituency. And a PAC and a candidate for state auditor had challenged the regulations as unconstitutionally infringing on speech. And the district court had upheld the statute, but the Court of Appeals reversed, applying strict scrutiny. The Supreme Court here, though, upholds the statute and invokes Buckley's differential treatment of contribution limits and expenditure limits. And I think the most important part of this case is that the Court seems to say that the state didn't have to make a new showing to support its avoidance of corruption rationale or the avoidance of the appearance of corruption rationale. Court almost seemed to place the burden on the opponents of the regulation to disprove that this was a legitimate basis for regulation. Let me ask you about the complaint by the PAC that this $1,000 limit, which had been involved in the Buckley case, didn't mean much after a quarter century of inflation. What did the Court say about that? The Court rejected the idea that Buckley should be read to create any constitutionally minimal, permissible contribution amount. The Court basically said that the Court issue is whether or not political association is preserved. And here there was evidence that over 98 percent of the contributors prior to this regulation had contributed below this contribution maximum. So the Court said that the political association right wasn't interfered with. The dissenters in this case were very alarmed. They took a global attack at Buckley, said that this kind of regulation is counterproductive, and argued that contributions to political campaigns are important for political speech. Almost a rational basis test, though, in terms of the guidance to dispute judges facing these statutes. I think that's right. Thanks, Jordan. Let's turn to another kind of election, the California Democratic Party versus Jones, which involved this blanket primary that the California voters had adopted by initiative, which creates basically a free-for-all in the primaries. People can hop around and vote in different parties' primaries. And this was challenged by the parties, and what did the Court say? The Court struck down the speech because it struck down the scheme because it violates the political party's rights of association under the First Amendment. What the Court said is that choosing candidates is a core function of political parties, and that this scheme forces them to adulterate that process by admitting outsiders who end up having influence. And in some cases, especially small parties, even maybe determine not only the choice of candidates, but the message that the party wants to send. The Court said that it was forcing parties to associate with those who do not share their beliefs, and so the Court struck it down. Now, a blanket primary is a little different than an open primary, which once the Democrat goes over and votes in the Republican primary and an open primary, they're stuck with that ballot. Are they in jeopardy now? They might be in jeopardy. The Court carefully distinguished them and said it was not deciding the question of open primaries, but I'm sure that's going to be the next set of challenges that the district courts will see. Okay, thanks very much. Jordan, let's turn to student activity fees. That was back before the Court again in a suit by Southworth against the University of Wisconsin at Madison over the distribution scheme for student activity fees. He disagreed with some of the groups who received these fees and said the Court called this compelled speech in other contexts, labor unions, for example, but the Court didn't agree with him. Yeah, the students here who were objecting to the fees tried to link themselves to previous Court decisions that had disallowed compelled speech in the union and state bar context, the Bood and Keller. Here the scheme was set up so that the student government distributed most of the fees, although there were referenda that were authorized to approve or disapprove of particular requests. Here the parties had stipulated before it got to the Court that the distribution by the student government was viewpoint neutral and the Court said that viewpoint neutrality was sufficient to protect the constitutional interests here. The Court distinguished the union and labor context by saying that in the university context it's harder to draw a line between germane and non-germane speech and also that in the Bood and Keller context they found that the compelled speech was more intrusive and more targeted than here. The Court also emphasizes in this case that it's very hard to structure a scheme that would allow students to opt out. They also emphasize that this is not a government speech case because the government has more power to exercise viewpoint, viewpoint neutrality is not required for the government. I think the next set of challenges though is going to be challenges to the distribution systems at universities as not being viewpoint neutral. I think the stipulation was what made this case. So that's coming up next. Let's come in briefly if you would on the third method of allocating these fees. This is a student referendum. That'll take us into the school prayer case we want to discuss. The Court was much more concerned about the student referendum as a way of regulating access to this public forum. The Court basically said that the majority shouldn't be able to vote on what and who gets to participate in these kinds of fora and that's where they remanded. Now then the Santa Fe case these anonymous plaintiffs do suing the Santa Fe, Santa Fe, Texas school district. Here a student election was crucial to the whole thing. The school board allowed students to vote whether or not to have a message or indication before the football game each football game all season and then if they wanted to have that to elect someone to present it and the Court did not buy that. The school had adopted a policy to allow the students to elect a representative to deliver either a message or invocation at a football game and Justice Stevens for the majority concluded that this kind of activity via a government policy on government land during a government sponsored event couldn't be deemed as private speech. The Court also looked at the history in this case because prior to this change in the policy Santa Fe had actually had someone who was designated to be the student chaplain to deliver a prayer at the football games and the Court via Justice Stevens looked at this history and said that given this background that it was hard for the school to disassociate itself from this effort and the school basically said that this violated the establishment clause it was the actual or perceived endorsement prong of the establishment clause test was enough to invalidate it. Court said they didn't have to wait for an as applied challenge because of the purpose in this case. Justice Stevens also noted the coercive effect of having prayer this kind of prayer at school football games the football players were required to attend as were other students members of the band or cheerleaders. The Court's opinion suggests that there's not going to be a sort of a special area in schools where there's an establishment clause scrutiny some people had hoped that this would this Court would limited Weissman to a graduation case but the Court basically says in all contexts the same kinds of concerns apply. Jordan how does the selection process here relate to the referenda in Southworth? Well as in Southworth I think the Court is very skeptical of the school's effort to distance itself in the policy by having a majority selection procedure. The majority selection procedure would only give majority views access to the public forum. So are there any circumstances under which students could engage in prayer in public school functions? That's a good question I think it's clear that if the school is the sponsor or perceived sponsor of the religious speech it's clearly unconstitutional that's this case. I think it's much more difficult to determine what the Court would do if there was genuinely privately motivated religious speech at a public event. Okay thanks Jordan that privately I mean a public speech is where the Court is holding the line but aids Susanna to religious schools as a part of the distribution scheme to education seems to be where the Court is letting the barriers down. This is Mitchell v. Helm. Yes I think that they are backing away from some earlier cases although we're not sure how far because there wasn't a majority opinion in Mitchell. The plurality Chief Justice Rehnquist joined by justices Thomas Scalia and Kennedy I think would let down all the barriers they said that the only test for whether government aid can go to religious schools is whether it's neutrally allocated and as long as it's neutrally allocated it doesn't matter whether for example it is direct aid to the school or indirect aid to the parents that's a distinction that the Court has upheld until now and they also felt that it was all right if the school diverted the aid from the secular teaching purposes to religious indoctrination. So I think under the plurality standard virtually all aid to private schools, sectarian schools is acceptable including any voucher system that anybody has thought of so far but they did not get a fifth vote. Justice O'Connor who would have been the natural fifth vote here declined to join the opinion wrote separately with Justice Breyer saying that the plurality had gone too far and indeed she criticized them for the unprecedented breadth of their rules. She rejects each of the points of the plurality and instead would look at the aid on a case-by-case basis the reason that the aid in this case was upheld is because it did not lead to any government endorsement of religion or government indoctrination. The only thing we know from this fractured court is that two old cases from the seventies Meek and Wallman have officially been overruled. It seems like the beholding in this case as well as the plurality's reasoning that we're moving away from judicial checks on sectarian aid and it seems as though are there any limits at all on what kind of aid that the public sphere can give to sectarian organizations? Well Justice O'Connor definitely thinks that there are limits she doesn't tell us very clearly what they are although one thing is clear is that there have to be some kind of safeguards so that the aid does not get diverted into religious indoctrination. And presumably we'll see those developed in cases that will be coming along. Thanks, Suzanna. Thank you, Jordan. We'll be right back. The court decided several other civil rights and civil liberties cases this term including a potentially far-reaching equal protection case and one involving grandparent visitation rights. A long-standing voting rights case was back in the court as was a state statute regulating abortion and there was also an important case involving the showing that plaintiffs must make in age discrimination in employment act cases. Irwin Chemerinsky of the University of Southern California Law School joins Jordan Stiker and me to discuss these five cases. Irwin will talk about two Purcuriums this program and one of them is the suit by Grace Olwick over the village of Willowbrook, it's a Chicago suburb, over an easement. This appears to be a little more important case than you might expect from a Purcurium. I think it's quite important. The issue is whether or not there's an equal protection claim from this discrimination against the class of one. Homeowner in Chicago applied for water service from the suburb. The village said they could have it but they had to give a 30-foot easement on their property. The homeowner said well you've asked for only a 15-foot easement from everybody else you're discriminating against us and filed a suit for an equal protection denial in federal court. They said they would be discriminated against in retaliation for having previously sued the city about something else and having won. The Seventh Circuit said it did state a claim with regard to equal protection. The Seventh Circuit said the allegation of retaliation was sufficient under the Fourteenth Amendment. The Supreme Court as you pointed out affirmed in a Purcurium opinion. The Supreme Court said equal protection safeguards individuals not groups. So there can be a claim for discrimination against the class of one. The Supreme Court said it's sufficient to state a claim in order to allege that there's been arbitrary discriminatory treatment. The Supreme Court said it no reason to reach the question of whether or not an allegation or retaliation would also be sufficient. I think she had claimed that she had claimed that there was some retaliation about her earlier contacts with the village. Let me just get this straight though. Here we have as we said a Purcurium. There was no argument in the court. Unsigned opinion. In fact the opinion is less than 600 words long. But nevertheless this you think is going to be consequential. Why? I do because I think this opens the door to constitutional claims where there previously hasn't been constitutional litigation. Think of the land use context. Think of any person who applies for zoning variance or conditional use permit as denied. Now they can bring it as an equal protection claim. Think of victims of police abuse. We're going to see them frequently now presenting their claims as equal protection arguments. This case really does seem to be following up on the court's recent race and sex discrimination claims under the Equal Protection Clause and sort of highlighting the individual rather than group character of the Equal Protection Riot. Thanks everyone. Jordan we want to turn to this case which was a lot of interest this term involving the Troxels who brought suit under a Washington state statute because they wanted to see their grandchildren more than the mother of the children wanted. And the court has now found a substantive due process right here for the parents. So we presume federal courts are going to see actions against these state statutes. Everyone has one. What was the reasoning? As best you can tell, there was not a majority opinion here. Here the Washington state statute allowed any person to petition the court at any time for visitation subject to the best interests of the child standard. And the grandparents sought visitation after their son, the father, had committed suicide. The Washington Superior Court had granted more access than the mother had desired. And then the Washington Supreme Court struck it down and said this violates federal due process. The Supreme Court, via a plurality opinion, found the statute unconstitutional as applied. The court invoked Meier and Pierce and basically said that there is a constitutional interest in directing the upbringing of your children. And the plurality emphasized the breathtakingly broad character of this statute, the any person, any time. It didn't go so far as the Washington Supreme Court had done, holding that there had to be a showing of harm before you ever override a parental's decision to allow or disallow visitation. All 50 states have some form of grandparent visitation law. What do you see as the implication of this decision for all of those statutes? I think those statutes are going to be challenged. I think what the court has done here is they've clearly affirmed a due process of interest in directing the upbringing of your children. But they struck it down as applied in a context where the state gave virtually no weight. Here, the mother hadn't been found to be unfit and they placed virtually no weight on the mother's views. I think the case would be different because we don't have any sense of what is constitutionally sufficient to protect the substantive due process right that the court seems to recognize. We'll watch and see how that develops. Thanks, Jordan. Irwin, I suspect the most controversial case this term was the suit by the attorney general in Nebraska's Stenberg against Dr. Carhart for violating a Nebraska statute that prohibits what it calls partial birth abortion. Help us understand the decision. Nebraska, like a total of 31 states, had a statute that prohibited the procedure, which is called partial birth abortion. The law prohibits the removal of a living fetus or a substantial part of a living fetus for purpose of then ending the fetus' life. It's important to understand this case to know that the district court made extensive findings of fact. The district court found that an unintended consequence of the law would prohibit a form of abortion known as dilation and evacuation, which is actually the most frequent form of abortion performed. The district court also found that the intended consequence of the law was the procedure known as dilation and extraction. The district court concluded that this is often the safest form of abortion for women, especially in the few weeks of pregnancy right before viability. The Supreme Court, a five to four decision declared the law unconstitutional. Justice Breyer wrote the opinion for the court, joined by justices Stevens, Souter, Ginsburg, and O'Connor. Justice Breyer said that the law placed an undue burden on a woman's right to abortion. In 1992, in Planned Parenthood versus Casey, three justices used the undue burden test in evaluating government regulation of abortion. Here for the first time, a majority of the court has said that's the test. The Supreme Court relied heavily on the district court's fact finding, including this law was an undue burden. I think the case also is important because Justice Breyer writing for the court says that any government regulation of abortion must take into account the woman's health and safety, that that's the paramount interest to be considered when the government regulates abortion. Everyone, do you think the court leaves open the possibility that some other partial birth abortion statute might withstand constitutional scrutiny? I think especially Justice O'Connor, the key fifth vote for the majority leaves open that possibility. She writes a concurring opinion, she says, if a law was written that just prohibits dilation and extraction, and that is an exception for the woman's health and safety, then she'd be inclined to uphold it. Virtually all of the existing partial birth abortion laws are like Nebraska's, be unconstitutional for the same reason. But I think what we're gonna see is abortion flows now coming back to the legislature to try to get adopted the laws like O'Connor outlined. And so the issue is gonna be back in the district courts and ultimately to the Supreme Court. Thanks very much. We'll probably be discussing it in a future program. Thanks everyone. Talking about things coming back to the court, Jordan, we have this reapportionment case. So last year we had a North Carolina case that was back in the court for a success of appearance. Here we have the Department of Justice's litigation with the Bocher Parish School District in Louisiana about its redistricting scheme. What was the rationale of the court used here and deciding this case? There's a complicated history, which I think is less important ultimately than what the court firmly and clearly decides. At issue here was the meaning of section five, the pre-clearance provision of the Voting Rights Act. Section five requires that a proposed district and plan not have the purpose or the effect of denying or abridging the right to vote on the basis of race or color. And here the court was confronted with the fact that in previous cases it had held that in order to show effect under this provision, you had to show retrogressive effect, that is that minorities were in a worse off position under the proposed district and plan. Here the court was faced with the issue of the purpose prong. What kind of purpose is required to make a section five showing? Is it enough to show that the decision maker is hostile to minority interests? And Justice Scalia for the court said no, the key here, like the effect prong and beer, is that the purpose must be retrogressive, that is that the decision maker and the plan must have the purpose of trying to put minorities in a worse off position. Justice Scalia basically said the court should harmonize the purpose and effect prong of section five of the Voting Rights Act. And Justice Scalia emphasized that this is not a substantive challenge, this isn't a section two challenge or an equal protection challenge, it's the focus is on non-retrogression. Let me ask you, how come this case isn't moved? I mean we have the census going on now and the school board said, we'll have a new plan in place by the time we have elections in 2002. But the court decided the case. I think the court is eager to clarify these histories of law even in cases that may no longer have a practical effect because the Voting Rights Issues recur. And they will recur after the census when there's a lot of redistricting. That's a certainty, yeah. Okay, thanks Jordan. Erwin, our last case is Reeves versus Sanderson. This is a plaintiff under the Age Discrimination and Employment Act case. And the issue has to do with what the plaintiff must show to get the case to the jury. The district judge denied the employer's motion for a rule 50 motion and the court of appeals reversed and then the Supreme Court, nine to nothing, agreed with the district court. Tell us why. Roger Reeves brought a claim for age discrimination. The employer said that they had fired him because he hadn't kept adequate attendance records of those who were supervising. In front of the jury, Reeves proved that that was a pretext that he had kept adequate attendance records. And he also introduced evidence of age animus that was expressed by a supervisor. The jury found in his favor as you pointed out the defendant made a motion for a judgment as a matter of law under rule 50 which the district court denied. The fifth circuit then reversed the district court saying the judgment as a matter of law should have been granted. The fifth circuit said that the plaintiff failed to provide adequate evidence of age discrimination. The Supreme Court reversed. The Supreme Court said that it's sufficient for the plaintiff to prove age discrimination by establishing a prime official case and then by demonstrating that the defense is a pretext. The Supreme Court also said that the fifth circuit had misapplied rule 50. The Supreme Court said when a court of appeals applies rule 50, it should give every inference in favor of the plaintiff's evidence that the court of appeals here hadn't done that. Everyone, do you think this case should be understood as an age discrimination case and employment discrimination case or a rule 50 case? All of the above. It's certainly an age discrimination case but I think it applies to all of the employment discrimination statutes. The Supreme Court relied heavily on title seven precedent here. I think the holding would apply just as much in that context. It really applies in all civil litigation. The Supreme Court here was giving instructions to court of appeals of how did it deal with rule 50 and how much deference they've got to give to the jury and its findings in favor of plaintiffs. Thank you very much, Irwin. Thank you, Jordan. We'll be back in a moment. We'll conclude part one with a few cases interpreting some other federal statutes. With me to discuss them are Irwin Chemerinsky and Lori Levinson of the Loyola Law School in Los Angeles. Irwin, let's start with a Lanamac case. This case of the suit from Samara Brothers against Walmart involved a three-way split in the circuits over an unregistered aspect of trademarks. Walmart had ordered some knockoffs of little dresses that Samara had made and Samara claimed that the design of the product was, in the terminology, inherently distinctive and thus creating confusion in the minds of buyers. But the Supreme Court unanimously said no. The Supreme Court said that generally there cannot be Lanamac claims for such confusion with regard to design. This does concern Section 43A of the Lanamac, which creates a cause of action if there's a name or symbol that likely to cause confusion. And here, as you said, Walmart hired a manufacturer to copy some dresses that were made by Samara Brothers. They're little cirrusucker dresses for girls and there's different symbols that were put on. And it was exact copies of the dresses that were sold by Samara Brothers. And the cause of action was brought under the Lanamac for deception. And Justice Scalia, writing for a unanimous court, says that design is generally not sufficiently distinctive or sufficiently associated with a particular producer, so it's the law of cause of action. Justice Scalia said if there is what he called secondary meaning, which is the term of art, then there could be a cause of action. Secondary meaning is there's some reason to associate the particular design with a specific producer. But apart from that, you can't have a cause of action with a Lanamac with regard to design. Justice Scalia distinguished the Supreme Court case from not that long ago that involved a Mexican restaurant. He said that involved product packaging and not design. Now Justice Scalia admitted that often the line between product packaging and designs going to be a difficult one to draw, but he said it's much easier than trying to decide well when is a design inherently distinctive? Okay, thanks very much. Laurie, every term has its recall cases. This term is no exception. Let's talk about two of them if we could. Let's start out with Rotella v. Wood. This had to do with the court's own four year period of limitation about when you can bring a recall claim. What court was trying to clarify when that four year period starts? No, that's right. The court has previously looked to the Clayton Act before to see what the statute of limitations is and they've done so again to see when it starts. The plaintiff in this case wanted a rule that said it's when he discovers not just the injury but also the pattern of racketeering activity. And the court rejects that and says no, you go back at least to when they discovered the injury and in fact leave open the possibility of Justice Scalia's rule. It's not when you discover the injury but it's when the injury actually occurs. Okay, and then the other case is this suit by Beck against Prupas, former employers. Indeed, they fired him when he made allegations of racketeering activity in this insurance company. And the question is whether or not the firing, the firing itself gives a cause of action under section 1962. Well, ordinarily under conspiracy law we look very broadly at what is an overt act. But what the court says here is that's not the rule at least in civil RICO conspiracy actions. The actual overt act has to meet the definition of a racketeering activity. So in this case when the plaintiff claimed look they are threatening to fire me because I wouldn't engage in the RICO activities, I was going to report those. That doesn't constitute a racketeering act under the definition of the statute. And therefore looking at that definition and not some broad common law, the court says it doesn't meet the requirements. Okay, thanks very much. RICO cases every term. Lori and Irwin, ERISA cases every term. And this term is no exception. But I don't recall an ERISA case before the court that made front page headlines. But this suit by Lori Peegram against her doctor and HMO doctor did because of what it said about the rationale for HMOs. Explain the case for us. The case involves a woman who suffered a rupture of appendix as a result of her doctor and an HMO delaying treatment. She sued the doctor in Indiana State Court for malpractice and similar claims. The doctor then removed the case from state to federal court arguing ERISA preemption. The plaintiff then amended her complaint in federal court to name the HMO as defendant. And she said the HMO and the doctor had breached their fiduciary duty. And the issue in the case is an HMO regarded as a fiduciary for purpose of ERISA. As you know, the Supreme Court has often broadly defined ERISA and ERISA preemption. But here they rejected the ERISA claim. Justice Sutter wrote the opinion for the court. Justice Sutter rejected the argument that an HMO should regard it as fiduciary. Now the argument was made to the court that doctors get revenue that's left in the HMO at the end of the year and that creates a fiduciary duty. But Justice Sutter said, if that's true, then all treatment decisions would be preempted by ERISA whenever there'd be a malpractice claim. Justice Sutter said, Congress intended to encourage HMOs. And Congress knew that HMOs had to ration care. So Congress didn't mean for HMOs to be fiduciaries under the statute. Now, does that mean that there is no action under ERISA against an HMO as an ERISA fiduciary? Generally the answer would be there are not cause of action against HMOs as fiduciaries under ERISA. However, there is a footnote in Justice Sutter's opinion where he says, in some exceptional circumstances, such as with the HMO's discretion, and perhaps in an instance where there's some duty to disclose information, then there might be a claim. But Justice Sutter in this unanimous court makes clear that these would really be the rarest circumstances. And that was not before the court in this case in any event. Well, ERISA has a way of producing litigation, so I suspect we'll see that question presented at some time. Thanks very much, Erwin, and thank you, Laurie. That concludes the first part of our program. We'll take a five minute break and then take up some important criminal law and procedure decisions.