 You're watching FJTN, the Federal Judicial Television Network. Supreme Court, 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. Welcome to the Federal Judicial Center's seventh annual review of the October term. The court decided 78 cases with signed or substantive purcurium opinions affirming 26% of the federal cases and 21% of the state cases. In the next two hours, we'll cover 53 of those 78 cases. The term saw the first decisions in 25 years on race-conscious university admissions policies. It saw a decision citing, among other cases, a 1981 European Court of Human Rights decision to suggest that the court's own, and now overruled, 1986 precedent on sexual privacy misread contemporary attitudes, cases on prosecuting conspiracies, and on ex post facto extensions of statutes of limitations, likely to affect prosecutions of alleged terrorists and of alleged sexual abusers. We'll cover these and other headline cases of constitutional interpretation. But we'll also cover a lot of what the Chief Justice at this year's Fourth Circuit Judicial Conference called Cinderella cases. Left at home to clean the stove while the constitutional cases, the big constitutional cases, go to the ball. So, for example, although we'll review cases affirming three-strike sentences and setting standards for granting post-conviction relief, we'll also review some bright-line rules for habeas and 2255 procedures. We'll look at whether libraries that get federal funds have to keep pornography off their internet-access computers but also look at whether states can bring fraud actions against telemarketers. We'll consider a case bucking the trend toward heightened state sovereignty and a case about the supplemental jurisdiction statutes towing provision. We'll describe briefly the decision about the 1998 Copyright Extension Act but spend more time on cases under the Lanham and Trademark Delusion Acts. We'll look at three arbitration cases, two orristic cases, and one about consent to trial before magistrate judges. Your materials summarize these cases and the 26 others we'll discuss in the order we'll discuss them, and then summarize 25 cases not on today's agenda. Those materials also include biographies of the law professors who will summarize and comment on the cases and in an evaluation form. As always, please use it to tell us the strong points and the weak points of this program. Next, the two cases on equal protection and two on voting rights. Perhaps the terms most closely watched cases were too involving affirmative action in higher education. The first time the court has touched that subject since 1978. We've prepared a brief video summary of those two cases. Let's look at the summary and then get some analysis. Two class actions challenged admissions practices at the University of Michigan. In both, the court said that a racially diverse student body can constitute a compelling state interest and rejected the claim that it has only sanctioned the use of racial classifications to remedy past or identify discrimination. Grutter v. Bollinger approved five to four, the University's law school admissions policy, as a narrowly tailored, individually applied use of race. Grats v. Bollinger disapproved six to three undergraduate admissions practices as not narrowly tailored and not giving applicants individual consideration. Justice O'Connor wrote the opinion upholding the law school policy and joined the Chief Justice's opinion disapproving the undergraduate policy. First, Grutter. The law school considers a number of factors in deciding whom to accept. For example, LSA T scores, undergraduate grades, recommendations, essays, and unique talents or interests. Admissions officers also strive to admit an unspecified critical mass of minority students. The law school's expert at trial said that if the admissions process had not considered race, underrepresented minority students would have comprised 4% of the 2000 entering class, not the actual figure of 14.5%. Barbara Grutter claimed, however, that denying her admission violated the Equal Protection Clause and the 1964 Civil Rights Act. The court last considered the use of race in university admissions in the 1978 Bakke case, which threw out the University of California Davis' medical school policy that set aside 16 of the class's 100 seats for certain minorities. Justice Powell's opinion announcing the judgment of an otherwise evenly split court has been seen until now as the court's dispositive statement on race-conscious admissions policy. He rejected a variety of asserted interests for race-conscious admissions but approved one, a diverse student body. In Grutter, the court endorsed Justice Powell's view that student body diversity is a compelling state interest that can justify the use of race in university admissions. In deferring to the law school's judgment that racial diversity is essential to its educational mission, the court took account of complex educational judgments, primarily within the expertise of the university. Noted its tradition of deferring to a university's academic decision, cited amicus brief claims that America's business and military need graduates from diverse student bodies. And noted that universities, particularly law schools, are training grounds for leaders. But racial classifications, said Justice O'Connor, are constitutional only if they are narrowly tailored to further compelling governmental interests. The law school's admissions program qualifies. It isn't a quota system and doesn't put minority group applicants on separate tracks. Universities can consider race or ethnicity more flexibly as a plus factor, part of a highly individualized, holistic review of each applicant's file, giving serious consideration to all the ways in which an applicant might contribute to a diverse educational environment. Finally, Justice O'Connor said under the 14th Amendment, all government use of race must have a logical endpoint. And the court expects that 25 years from now, the use of racial preferences will no longer be necessary. Jennifer Gratz and Patrick Hammacher challenged the admissions policy for most undergraduates. During the relevant years, undergraduate admissions guidelines, like the law schools, considered factors ranging from GPA to alumni relationships. They also factored in racial and ethnic status. For part of the period, applicants were placed in cells of a table. Gratz's GPA and standardized test score, for example, put her, an in-state Caucasian, in a postponed decision cell, but put an in or out-of-state minority applicant with the same GPA and test score into an admit cell. Later, the university adopted a point system. Members of underrepresented racial or ethnic minority groups received 20 of the 100 points necessary to guarantee admission. The university argued that these practices were narrowly tailored, unlike the medical school program in Bakke. Chief Justice Rehnquist, writing for five of the six justice majority, disagreed, automatically distributing 20 of the 100 points necessary to guarantee admission to every single underrepresented minority applicant solely because of race is not narrowly tailored to achieve the university's interest in educational diversity. He contrasted that approach to Justice Powell's acceptance of a program in which race or ethnic background may be deemed a plus in a particular applicant's file. Justice Powell also emphasized the importance of individual consideration of each applicant, which, said the Chief Justice, is not achieved by automatically distributing points to every applicant in particular underrepresented groups, even with the university's practice of flagging some applicants for further analysis. Finally, the university argued that the large number of undergraduate applications makes individualized review impractical. Responded to Chief Justice, the presence of administrative challenges does not render constitutional and otherwise problematic system. Here to discuss these two cases and cases on redistricting are Erwin Chemerinsky of the University of Southern California Law School and Susanna Sherry of Vanderbilt Law School. Susanna, how far do these decisions go beyond public universities, like the University of Michigan? Well, outside the educational context, I don't think they'll apply at all because the court focused so much on achieving a diverse student body as the compelling interest and that compelling interest, of course, is not present when you're talking about something like public contracting. But as to private universities, the court made quite clear in a footnote that the very same standards will apply under Title VI to any university that receives federal funds, which of course almost all of them do. So within that context of higher education, what's the basic rule? What's okay and what's not okay? The Supreme Court says that colleges and universities may use race as one fact among many admissions decisions to enhance diversity and benefit minorities. The college universities cannot add points to an individual applicant's score solely based on race. Quantification may be the key. The court says numerical set-asides, quotas, adding points, that's impermissible but it is impermissible for the university to use race as one fact among many admissions decisions. I'm not sure the line is going to be quite that easy to draw. There are cases that I think will test where the line is. For example, in the Michigan Law School program that was upheld, there were some Caucasians admitted whose scores were lower than the minority applicants who were admitted. Would it be different if in fact there were no such Caucasians admitted? I'm not sure. I think those are the kinds of cases we're going to see. We also see cases in which the school appears to be doing what it's always been doing, using numbers but not being very candid about it. Justice Ginsburg would see a lot of, which is at wings and nods. I think she might be correct. The reason that the law school could give the individualized attention rather than the quantification was because they only had 3,500 applicants. What are you going to do with a university that has 35,000 or 25,000 applicants? I think in those situations it's going to be very difficult for the university to give the required individualized attention, but they will nevertheless find a way to identify and preferentially admit the beneficiaries of affirmative action. Then you're going to have plaintiffs coming in and saying that a school that purports to be following the law and giving individualized attention is in fact engaging in the prohibited quantification instead. They'll come in with evidence, for example, that perhaps the minority students who are admitted have scores that are several standard deviations below the white students who are admitted. Let me ask you then. State universities who say we'll admit everybody in the public high schools in this state if they're in the top, say, 10% of the graduating class. How is that going to pass the individualized consideration test? Well, it might not. Several of the justices suggested that it was in fact no different from what was outlawed in the Gratz case. And some litigants, I think, might take the hint and challenge the programs, arguing that because the program, these X percent solutions only work because of segregated K through 12 schools, that in fact they are adopted in order to benefit minorities and that they have a disparate impact but are adopted because of and not simply in spite of their disparate impact. The schools will defend saying that it's part of their diversity program but I think that's where the individualized attention problem may come up. But those programs are all facially race-neutral. And the Supreme Court has made it very difficult to successfully challenge facially race-neutral programs. The Court has said there's a proof of both discriminatory intent and discriminatory impact. I think Grutter signals that five justs on the current court want to uphold affirmative action. And I think they'll be especially inclined to do so when they're facially race-neutral programs. You may be right except I think what plaintiffs will try to allege here is that while they're facially race-neutral they were intentionally adopted in order to give racial preferences. We're going to have to leave it there. Let's go into Georgia v. Ashcroft, a redistricting case that may appear at first plus to apply only to the district court here in Washington but actually it may have broader application. Facts are sort of complicated so we'll put them up on the screen. A 2001 Georgia State Senate redistricting plan, enacted by the democratically controlled legislature, had two goals. One was to maintain the number of districts with majorities of black voting age residents. The other was to increase the districts where blacks, even if not a majority, could have a strong impact on the election. And Georgia blacks vote overwhelmingly democratic. The plan decreased the number of districts with more than 60% black voting age residents by 5. It increased the number of districts with more than 50% black voting age residents from 10 to 13. And it increased the number of districts with from 30% to 50% black voting age residents from 8 to 13. And African American legislators voted overwhelmingly for the plan. Now Georgia is covered by section 5 of the Voting Rights Act. It has to get pre-clearance from either the Department of Justice or the district court here in Washington for any change in its voting procedures or practices. Georgia sought pre-clearance from the district court here in Washington. Now the Supreme Court said in 1976 that a plan should not be pre-cleared if it would lead to a retrogression in minorities' voting power. The district court refused to pre-clear the plan but the Supreme Court reversed 5 to 4 with Justice O'Connor writing. And there's a procedural point we ought to cover first. The district court let four plaintiffs intervene under rule 24. It said it didn't matter where they lived, whether they were in the disputed district or not. And the Supreme Court affirmed and it said nothing about residency. All it said was if you want to challenge a section 5 plan, you have to meet the provision of civil rule procedure 24. Is that going to show up in other cases? United States v. Hayes a decade ago the Supreme Court said that in order for a person to have standing to challenge district, the person has to live within the district. The district court here noted that these plaintiffs lived outside the district but still allowed intervention under rule 24. Now perhaps the court was implicitly saying that Hayes was met. Maybe they were changing Hayes or creating an exception to Hayes. We don't know when it's going to take future cases to clarify this. This is in a word. Was the plan right progressive? According to the court, in a word, no. What the court said was participating meaningfully and successfully in the political process does not necessarily require that you be guaranteed of influencing an election. It might mean that you have a larger number of districts in which the particular group has a good chance of influencing the election. Or it might even sometimes mean that there's a larger number of districts in which the group is important enough that whoever is elected has to listen to them, can't ignore them. Erwin, very quickly, how does this apply perhaps to Section 2? Justice O'Connor was using Section 2 cases about vote dilution in her analysis of Section 5 of the Voting Rights Act pre-clearance retrogression. So it may very well be that courts throughout the country need to look to what she says with regard to Section 5 as they handle Section 2 cases as well. Good note. Thanks, Erwin. Thank you, Susanna. There's one other redistricting case, Branch v. Smith at page 4 of your outline, where the court unanimously affirmed a Mississippi district court that put in place its own redistricting plan for that state's house delegation because a state court plan couldn't get timely pre-clearance. More important, seven justices held that Title II's reapportionment provisions require, or almost always require, legislatures or courts to impose single member, not at large plans when the census reduces a state's representation. The court didn't rule on whether a state court can order redistricting without legislative authorization. We turn next to this term's First Amendment cases. Denise Neary has the four First Amendment cases we'll cover. As mentioned in the program opening, the court heard several important First Amendment cases this term. Lori Levinson of Loyola Law School in Los Angeles joins Erwin Chemerinsky and me to discuss them. Lori, the court revisited the issue of cross-burning this term in Virginia v. Black. Please tell us about that case. Right. The court did come back to whether the states could ban cross-burning after they had decided the RAV decision. And the answer is, it depends. The facts are really important. You had two different cross-burnings in this case. One you had out in the field by the KKK with some people watching it. Another cross-burning was on the lawn of an African-American family who had just moved into a white neighborhood. What the court held is that a state could ban cross-burning if it was a true threat, if it was made with an intent to intimidate. But you had to prove the intent to intimidate. And you couldn't have jury instructions that just assumed that because there was a cross-burning, there was that intent. It suggests that at political rallies, cross-burnings could not be banned. Erwin, do other states have statutes that might be implicated by this decision? Most states have some form of hate crime law. And this case provides important guidance is when those laws can be constitutionally applied. And I think the case has important implications outside the hate crime context. First, it makes clear that there are no symbols that are outside the scope of First Amendment protection and that can always be prohibited. And second, it makes clear that truths with true threats, speech with the intent to intimidate, just isn't protected by the First Amendment. Thank you. Let's turn Erwin to commercial speech. The court heard two cases this term. It dismissed Nike Berth says Katsky for cert being improvidently granted, but did consider the issue of truthfulness in commercial speech in Madigan v. telemarketing associates. What did judges need to know about that case? The issue in this case is whether an attorney general of the state may sue a fundraiser for misrepresenting the amount of money that's going to go to charity. Here you had a charity, a Vietnam Veterans charity, now suing a fundraiser telemarketing. And the charity promised the fundraiser that 85% of all that it raised could go to the fundraiser rather than to the charity. Well, this was misrepresented to potential donors and an action was brought against the fundraiser. The fundraiser successfully moved to dismiss on First Amendment grounds. The Supreme Court, in opinion by Justice Ginsburg, said that a state may successfully sue a fundraiser for misrepresenting the amount of money that's going to go to charity. The court stressed that there's an important interest of those who have been donating money to have accurate information into the amount that's going to go to charity. However, the court reaffirmed an earlier decision that said a state can't regulate the amount of money that will go to the fundraiser as opposed to charity. The court emphasized that there will be times where fundraisers need to get a lot of what's raised in order to encourage them to perform the activities. The only thing that's interesting about this case is the court emphasized that Illinois required clear and convincing proof of fraud. Well, it's not clear then whether a lesser standard of proof might still meet First Amendment scrutiny. So, courts, you keep an eye on that area. Lori, let's turn to the U.S. vs. American Library Association case. That's in your materials on page 6. There, the court found that libraries using filtering software to block Internet pornography access didn't violate the First Amendment. What factors were key to that decision? Well, what was really key to that decision is that the court didn't believe that just because libraries have Internet access, they become a public forum. And therefore, the court did not apply a strict scrutiny test. It said that librarians are allowed to make editorial judgments all the time, so it would be all right to require this type of filter. But as long as adult customers can go to the librarian and ask for those sites to be unblocked. Which leads to the next question. Are your courts likely to see as a result of this case? They're very likely to see as-applied challenges. Two justices were clear, and they were too concurring in the judgment of the six and the majority, but they'd be receptive to as-applied challenges. And so I think what you're going to see is individuals going into public libraries and requesting the librarians lift the filters, hoping there'll be test cases. And as soon as a librarian says no, they'll then go to federal district court and bring the as-applied challenges that Canadian briars said they might be receptive to. So you're predicting some cases to come? Absolutely. Thanks. Let's turn then to political speech. Irwin, what does FEC versus Beaumont tell judges about campaign contributions? It says that federal law can prohibit corporations, even non-profit advocacy corporations from contributing money to political candidates. What you had here was North Carolina Right to Life Incorporated, a corporation that existed for political advocacy against abortion rights that wanted to donate money to political candidates. They said they had the first in their right to do so. And they wanted the district court in the Fourth Circuit, but the Supreme Court reversed. Justice Souter writing for the court said, since 1907, federal law has prohibited corporations from donating money to candidates. Justice Souter explained that many interests are served by this, preventing corruption and the appearance of corruption, care-holding money from going for things that they didn't intend to be spent on. Concerned that other campaign finance laws might be circumvented if corporations could give money to candidates. Justice Souter said, when the government is regulating contributions, strict scrutiny is not the test. Instead, the court said, as previously, the government can regulate contributions so long as what it's doing is narrowly tailored to an important government interest. Now, by the time the viewer will be watching this program, the court will have already heard argument on McCain Feingold. It should be noted that this program was produced before that date. But, Lori, what do we already know about the court's approach to these issues? Well, we know a couple of things. First, we know that there's a majority who's willing to uphold limits on corporate campaign contributions. We also know that it appears that there is not a majority that wants to overturn the Buckley v. Belial framework for looking at these cases. Thanks so much, Lori. Thanks so much, Erwin. Thanks, Denise. Next, civil rights cases. The most closely watched civil rights case this term involved a Texas law on sodomy, but there were other important cases as well. John Cook has those. The court decided five cases we've put under the heading civil rights. Here with me to discuss them are Evan Lee and Susanna Sherry. In the first of these, Lawrence v. Texas, the court overruled Bowers v. Hardwick and held that prohibiting same-sex sodomy by consenting adults violates due process. Susanna, this was a major case, wasn't it? I think it was probably the most significant case of the term. First, it's going to have great practical impact, not so much on sodomy statutes because they aren't very much enforced, but on discrimination against gays in areas like jobs and custody determinations, because now gays can't automatically be considered criminals in those sorts of determinations. It's also going to have symbolic effect, I think, furthering the cause of gay rights, but most important is that it overruled Bowers v. Hardwick on due process grounds. I think it makes quite clear that substantive due process is alive and well. We have, much to Justice Scalia's disappointment, a living, breathing constitution. Justice Kennedy's interpretation of the 14th Amendment was flexible. It didn't rely only on original intent, and so it's now clear that the 14th Amendment does protect fundamental unenumerated rights, and I think that's going to be important in two sets of cases. One is other cases involving gay rights, in particular for jobs. For example, there's already a case pending that's challenging that militaries don't ask, don't tell policy. But I think the case is also going to be important in other fundamental rights areas, including, for example, abortion, because this case reaffirmed both Roe and Casey and made clear that there is a constitutional basis for them. You know, the one area that you didn't talk about was gay marriage, and I think we're all wondering how far along the road does Lawrence take us to the unconstitutionality of states' refusal to marry gays? In my own opinion, it takes us, I would say, part of the way, probably not all of the way there. What this case does establish is that there is a fundamental right to engage in this sort of intimate activity in private. The question becomes is that, is refusing to marry gay couples a penalty for the exercise of that right? Is it an undue burden on the exercise of that right? Probably not in and of itself. But if we were to get what I would refer to as intermediate stepping stones, if the court were eventually to decide, for example, that gay couples have a fundamental right to cohabitate or that they have a fundamental right to raise children, then I think perhaps the refusal to marry them may become an undue burden on the exercise of those fundamental rights. I think you may be right. Thank you. Shipping gears a bit. Every state uses interest earned in interest on lawyer's trust accounts, IOLTA, to pay for legal aid for the needy. In 1998, in Phillips v. Washington Legal Foundation, the court held that interest earned in IOLTA is the property of the owner of the principal in the account. This term, in Brown v. Legal Foundation of Washington, the court had to decide whether distributing that interest to these legal aid societies or funds is a taking, and if so, what just compensation is due the owner. Five to four, the court held that IOLTA do not have to compensate the owners of the deposited funds for the interest earned, thus preserving funding critical to these legal aid programs. Evan, how did the court reach this result, especially in light of Phillips? Well, I think the key to understanding this decision, whether you agree with it or not, is to understand that the only monies that were eligible for IOLTA treatment were client funds that were so small that they were incapable of generating any net interest for the clients because of high transaction costs. Now, what happened here was the client sued. They claimed a taking without just compensation. The first thing the Supreme Court had to do was to decide was this a taking, and so they had to decide what test are we going to apply, and they chose the per se physical takings test over the ad hoc pen central test, and then applying that test, they determined, yes, there's a taking here. But then, of course, there's the compensation question, and the court here held that there was no compensation that was due because there was, in the court's view, no pecuniary loss. And the way that they determined that was by saying, well, what did you lose? You know, if not for IOLTA, you wouldn't have had any net earnings to lose in the first place, and so there is no pecuniary loss here. But I think there's an important thing to remember, which is as technology improves, the sort of pool or the eligible monies that you could put into IOLTA are going to diminish over time. I mean, as technology improves, transaction costs will go down, and that means that fewer and fewer of these client funds will be eligible for that treatment in the first place. Does this finally resolve the question about IOLTA, or are there other issues that might arise? Well, I can see one that's going to arise for sure, and that is if you read Justice Kennedy's dissent, he very, very heavily hints that he thinks that this violates the First Amendment on forced affirmation grounds. So I think you'll see that challenge for sure. Thank you. Now, Susanna, since September 11, 2001, the rights of aliens have received increased attention in our society. Shortly before 9-11, the court in a five-to-four decision decided Zavidas v. Davis. There, the majority said, once admitted to the United States, aliens have almost the same rights as citizens, and construed a recent statute to preclude indefinite detention of aliens who are ordered to move but who have no place to go. This term in D'Amore v. Kim, Justice O'Connor, joined the four Zavidas dissenters, the Chief Justice and Justice Scalia Kennedy and Thomas, and they upheld a statute that requires the detention of aliens who are removable for certain types of criminal conviction. Exactly what did the court say here? Well, it was actually quite a narrow holding. The sole question was whether an alien who had committed certain felonies and was therefore subject to deportation could be detained pending the deportation hearing without having an individualized hearing either on dangerousness or on being a flight risk. And the court said that he could be detained. But a lot of the case turned on the meaning of precedent. The justices were charging each other with using dicta from earlier cases and also disputes about the fact about what it was that the particular alien had admitted and had conceded and what he was arguing. So the holding itself was fairly narrow. And the holding applies to a relatively small group of people, just those who are pending removal for conviction of a crime. Does this case have broader implications? I think it does. I think it tells us how the court is likely to treat not only legislation involving aliens, but perhaps legislation involving terrorism and terror suspects in the future. I think the most telling point here is that the court distinguished the Zoveta case, but it also cited justice. Kennedy's dissent in that case more often than it cited the majority opinion. So I think what the court is telling us here is that it's going to give Congress a bit more leeway. It's not going to scrutinize as strictly some of these legislation against terrorism. And in particular, I think, the whole tenor of the opinion about whether aliens have rights is different. So I think that's what this tells us. Thank you. Changing subjects again, Evan, and looking at Title VII. In Desert Palace v. Costa, the court held unanimously that in mixed motive cases, the plaintiff is not limited to direct evidence to prove discriminatory intent. Now most circuits had held the other way based on a 1989 decision Price Waterhouse v. Evans. Since the lower court seemed to have some trouble with this, but the Supreme Court didn't, how did the court address this problem and resolve it? Well, the quote-unquote trouble, the source of the trouble was Justice O'Connor's concurrence in Price Waterhouse, which led four circuits, the 1st, the 4th, the 8th, and the 11th. To hold that direct evidence is required, that a plaintiff has to come forward with direct evidence of an illegitimate motive before that plaintiff can be entitled to a mixed motive instruction. The Supreme Court agreed with the 9th Circuit here that the Civil Rights Act of 1991 by its plain language imposes no special evidentiary requirements in these so-called mixed motive cases. So the holding of this case would be that a Title VII plaintiff is entitled to a so-called mixed motive instruction once he or she presents either direct or circumstantial evidence of the use of, you know, race or color, religion, whatever prohibited category pertaining to a certain employment practice. And I think it's important to note here that the employer is accorded the same evidentiary latitude so that the employer will get the defense in Title VII against any damages award if it can demonstrate by a preponderance of the evidence either direct or circumstantial that it would have taken the same action even had there been no illegitimate motive. Susanna, since most of the circuits had gone the other way, did the result here surprise you? No, it didn't, partly for the reasons that Evan suggested, but also because it continues a trend that the court started several years ago. What it does is it removes procedural barriers to discrimination suits. This case said there was no heightened evidentiary analysis requirement for triggering the mixed motive instruction. It's similar to the case last year, the Swarkowitz case in which the court said there were no heightened pleading requirements in Title VII and to Reeves v. Sanderson from three years ago where the court said there was no evidentiary standard to withstand emotion for a judgment as a matter of law. Thank you, Susanna, and thank you, Evan. Finally, the Americans with Disabilities Act applies to employers with at least 15 employees, but who counts as an employee? Four doctors were the shareholders and constituted the board of directors of Clackamas Gastroenterology Associates, a medical clinic organized as a professional corporation. They also worked in the clinic. So did they count as employees? The court said common law agency doctrine governs and control is the principal guidepost. The court cited with approval the EEOC's list of six factors to help determine control. Thanks, John. We turn next to a group of cases involving what we call business activities, arbitration, damages and tort actions, intellectual property, and ERISA. First, the arbitration cases. And again, to John Cook. We're going to look at three decisions from this term concerning arbitration agreements and talk with Professor Sam Estreicher of New York University Law School about them. How some of the Dean Witter Reynolds raised the question whether a court or the arbitrator should apply a National Association of Securities Dealers regulation that declares some disputes are time-barred from being arbitrated after six years. The Supreme Court decided that the applicability of the time limit rule was for the arbitrator, not a court, to decide. In Pacific Care Health Systems, the book, the court was asked whether the respondents could be forced to arbitrate claims arising under the Racketeering and Corrupt Organizations, or RICO, statute, even though their arbitration agreement arguably limited the arbitrator's authority to award damages under that statute. RICO allows treble damages and the agreement was ambiguous about whether it precluded the arbitrator from awarding such damages. The court said the ambiguity was when the arbitrator should decide. And in Green Tree Financial, the Basel, the Supreme Court held that the arbitrator, rather than a court, should decide whether class-wide arbitration was permitted under the terms of the arbitration agreement. I recently spoke with Professor Estreicher about these decisions. Professor Estreicher, the Supreme Court has dealt with arbitration issues quite a bit in the last few years. Could you please highlight some of the major decisions and what trend these reflect? I would say that starting in the mid-1980s, the court has revived, essentially revived the Federal Arbitration Act. In the Southland case, it held that the Federal Arbitration Act applies in state court. In the Mitsubishi case, also in the mid-80s, it held that the Federal Arbitration Act applies to federal statutory claims, in that case RICO, anti-trust claims. In 1991, in the Gilmour case, the court held that the Federal Arbitration Act applies to statutory employment claims. In the Circuit City versus Adams case in 2000, it held that the exclusion in the Federal Arbitration Act for contracts of employment applied only to contracts of employment of transportation workers. I would say those are the highlights in many cases, but those are the highlights, and the bottom line one gets from this line of cases is that the Federal Arbitration Act applies virtually across the board to arbitration agreements between private parties, covering virtually any subject matter that is within the reach of Congress' power to legislate. In the three cases this term, the court held that the lower court had stepped in before an arbitrator had a chance to answer the question when, if ever, may a court decide an arbitration claim before the arbitrator looks at it. Well, the court identified two areas where it said this is the kind of gateway question that should be decided by a court. One is whether the parties have entered into a valid written arbitration agreement, and the second is whether the agreement covers the particular dispute that's called substantive arbitrability. There is also a role for the court under Section 2 of the statute if the agreement would be void under generally applicable contract law, state contract law. What's likely to be the practical effect of the Basel decision? Are we likely to see more class action arbitrations? Basel is very important because it takes the courts out of the process because what happened in Basel is that Supreme Court South Carolina essentially said that where the agreement is silent, they can essentially impose a class-wide procedure on a bilateral arbitration process. And since now the courts are out of the process and the issue is one for the arbitrator, I think as a practical matter it is highly unlikely that arbitrators will on their own without clear language in the agreement or a class-wide arbitration. Given the court's jurisprudence and the popularity of arbitration agreements in business nowadays, what issues are district courts most likely to see? I see three categories of issues. Two at the motion of compel stage and one at the award enforcement stage. One issue at the motion compel stage is the Section 2 provision in the FAA that says that courts can revoke agreements on grounds that would be generally available under contract law. In other words, the unconscionability doctrine. A second significant area of litigation again at the motion compel stage is the question of costs. Arbitration involves not only a filing fee an attorney's cost but also involves arbitrator costs, forum costs, and for some indigent litigants these costs can be prohibited and prevent them from asserting claims that they would have served if the only barrier they faced was a traditional court filing cost. The third category of issue is after the case has gone to arbitration an award has been rendered. The court has a role here that goes beyond the traditional narrow review of awards. It has a role here to make sure that arbitration did not involve a waiver of a substantive right available under the applicable statutes. Outside those three areas I think the courts do not have a role at this point. Thank you Professor Estraco. Next in this set of business cases two involving damages and tort actions Evan Lee joins me. Evan will start with Freeman Ayers and five former employees of Norfolk Western Railroad sued the railroad that worked with asbestos and they had asbestosis. They sued under the Federal Employees Liability Act in West Virginia State Court and the West Virginia State Courts found for that. Now for one thing, they held the railroad totally liable for whatever damages even though these guys had worked with asbestos for other companies what did the court say about apportioning liability? Well the court unanimously rejected any apportionment between the defendants and non-parties who might have contributed to the asbestosis in the past. The court said that the sole remedy for that on the defendants part would be to seek contribution from these other non-parties who might have contributed in the past. This was a major victory for the trial lawyers who were afraid that if the Supreme Court adopted an apportionment rule even in this limited context of Fila that that would set in motion a chain of events whereby State Supreme Courts would sort of follow the example of the United States Supreme Court and adopt an apportionment rule of law of torts. And the trial lawyers were afraid that this would be the beginning of the end of joint and several liability. And that was unanimous. The next point wasn't unanimous. The heirs in the plaintiff said part of our asbestosis is a fear of getting cancer and we want compensation for that element of our disease. Here the court was five to four. Yeah, the court held in this portion of the opinion that such damages for emotional distress were permissible and common law interpreting Fila provided that the plaintiff carries the burden of proving that the fears were genuine and serious. Now the court actually in this particular case hinted rather heavily that the plaintiff's fears might not have been genuine and serious but that in any event the defendants had waived the argument. But I do think it's important to remember here that the court did not go so far as to approve a true stand alone damages for emotional distress. There was a disease here. It was asbestosis. It was not the same disease that they were afraid of getting cancer but that there was a disease here. They did indeed have it. Now in dissent Justice Kennedy vigorously said that if you're going to allow suits over mental distress the money's all going to be gone and the people who do have cancer won't have any remedy. Won't have any damages. What's the legitimate concern at Tell It to Congress? Let's look at the other case. This is also from State Courts, the Utah State Courts here. This is the suit by Inez Campbell and others against State Farm for the way State Farm represented it in litigation. The jury awarded a million dollars in compensatory damages. They awarded 145 million dollars in punitive damages. Now the Supreme Court several years ago in Gore VBMW was in determining whether or not these punitive awards violate due process. It fleshed them out here a little bit. Tell us how. Well first of all the court said 145 million dollars in punitives this was an easy case under Gore VBMW. That's the way the court characterized it. The court did flesh out the first Gore guidepost if you will. That being the reprehensibility of the conduct and the court said that there were four factors that should be looked to. The first would be the legal or economic harm. The second would be did the defendant act indifferently or recklessly with respect to the harm. A third would be was this an isolated incident or was it a repeated something that had been repeated over time and fourth was the question of whether the defendant had engaged in intentional trickery or deceit or on the other hand was this an accident. The court also gave a guidepost from Gore VBMW that being the relationship between punitive damages and compensatory damages. And the court held that when the punitive to compensatory ratio exceeds 9 to 1 that the award is highly suspect under the due process clause and indeed when the compensatory award is very large as it was in this case probably a 1 to 1 ratio is really the guidepost there. Not a bright line rule it's more of a presumption. One other thing, the lawyers for Campbell asked the jury to punish State Farm for its nationwide claims adjustment process not just for what happened in Utah and the Utah court said you can consider that in assessing among other things of reprehensibility with the Supreme Court of the United States. And the trial and the trial by the state was a great failure. The law was obviously disapproved of that practice out of state conduct cannot be taken into account in punitive damages in large part because you know the conduct isn't necessarily illegal in all those other states. Now back to John Cook for three intellectual property cases then I'll have this term copyright clause power to grant copyrights for limited periods, and violated the First Amendment because it extended the effective duration of existing and future copyrights to well over 100 years. The court rejected these arguments and upheld the act. Next, the victorious secret lingerie chain sued the Mosleys, owners of Victor's Little Secret, a small lingerie and sex toy store under the Federal Trademarked Dilution Act. This is objective proof of actual injury to the economic value of a famous trademark required. The court said plaintiffs need not prove actual loss of profits or sales to show dilution, but the statute unambiguously requires a showing of actual dilution, rather than a likelihood of dilution. Third, in Dastar v. 20th Century Fox, the court had to say what the Lanham Act means by the term origin of goods. Dastar marketed a slightly edited version of a television series that Fox and others originally produced. Fox's copyright had expired, so it argued that Dastar's version violated the Lanham Act's prohibition on false designation of origin of goods. The court said that to read origin, to require attribution of uncopyrighted creative work would be to effectively grant a perpetual copyright. Instead, the court decided that the phrase refers to the producer of the tangible goods that are offered for sale, and not to the author of any idea, concept, or communication embodied in those goods. I talked with Cardozo Law School Professor Justin Hughes about the implications of Mosley and Dastar. In Mosley, the court held that actual dilution is required. The circuit courts had gone in different directions of this question. What had they said, and how did the court resolve the question? Well, in 1999, we had two decisions from the circuit courts that I think really bookended this problem. And one was from the Fourth Circuit. It was Ringling Brothers versus the Utah Division of Travel Development. And the Fourth Circuit there had looked at the statute and said, there's got to be actual dilution for the cause of action. And in fact, had gone further and said, and in order to prove actual dilution, we want to see evidence of actual losses or lost profits attended to the diminution of the power of the trademark. And in contrast to that, in the same year in 1999, the Second Circuit, in a case called Nabisco VPF Brands, which was Pepperidge Farm, said, no, the standard is likelihood of dilution. And the court sided with the Fourth Circuit in the strict interpretation of the statute, saying, we think the Fourth Circuit is right. Actual dilution is required. Now, having done that, they took a step back from the Fourth Circuit's opinion and said, although we think they're right, that actual dilution is required, we don't think that the only way you can prove actual dilution is by showing financial losses or economic losses because of a weakened power of the trademark. So how does a party prove, and how does a judge decide, what constitutes actual dilution? I think that a judge should think of it as a two-tier level. On the first tier, the court says that where we have identical trademarks, that may be sufficient circumstantial evidence of actual dilution. Where the marks are not identical, the court has left it open as to what will constitute sufficient evidence of actual dilution. Justice Stevens' opinion tells us what isn't a sufficient condition for actual dilution. He says, mere mental association doesn't do it, but doesn't really tell us what will do it. Turning to the Dastar decision, the court looked at the Lanham Act and interpreted it rather narrowly. What did the court do, and why did it do it? The court read the Lanham Act very narrowly. It had a number of issues in front of it on which it could have decided that case. And it took the broadest one. Under section 43 of the Lanham Act, it looked at the language of origin of goods. And classically, origin of goods in these creative work cases and these copyrighted work cases had been used to include the people who are the creative forces in the copyrighted work. The court said, no, origin of goods. We interpret that as being tangible, physical origin of the goods. And we very narrowly confine the Lanham Act to that. And finally, what did this term's intellectual property decisions tell us about the court's approach to intellectual property law more generally? The thematic similarity in these two trademark cases is the court is expressing some serious doubt about how broadly lower courts have interpreted the Lanham Act, that they're doubtful that these trademark rights need to be as broad as lower courts have interpreted them to be, and they're going to cut them back. I think the interesting difference between the cases is that in Mosley, it's really just statutory interpretation. And Congress could go back and amend that statute. In Dastar, it is statutory interpretation. But the court was pretty clear that if there were this right of attribution, and if it affected uncopierated works, then there would be a problem. Thank you, Professor Hughes. Thank you. Two orisa cases this term, both relatively brief and both unanimous. Their summaries start at page 15 of your outline. Lack in Decor Disability Plan v. Nord resolved a circuit split over judicial imposition of a treating physician rule for orisa disability claims. Such rules tell plan administrators to accord special weight to the opinions of a claimant's treating physician. In the 1980s, Courts of Appeals created such a rule for social security disability claims, which the Social Security Administration then incorporated into its regulations. Whether such a rule would increase the accuracy of orisa benefits determination, said Justice Ginsburg, is best left to Congress or administrators. But neither the statute nor the Labor Department's regulations include one. Therefore, while plan administrators must credit reliable opinions of claimant's physicians, Courts may not require administrators to accord them special weight or to explain why they credit other reliable evidence. The term's other orisa case is Kentucky Association of Health Plans v. Miller. Orisa preempts state laws governing employee benefit plans, but not plans that regulate insurance. Kentucky's any willing provider statutes direct HMOs to permit any health care provider in their geographic areas to participate in the HMO's plan if the provider is willing to abide by the HMO's conditions. Kentucky HMOs sued to block enforcement, saying Orisa preempted the laws and fearing no doubt that they would upset the managed care equation by which HMOs make available large numbers of subscribers to small numbers of doctors, pharmacies, or hospitals in return for discounted fees. About half the states have such laws, most covering only pharmacies. The HMOs argued first that any willing provider laws were directed toward health care providers, not insurers. No said Justice Scalia, a regulation preventing an insurer from excluding willing providers affects the providers as well as the insurers, but that does not mean the law does not regulate insurance. Second, the HMOs argued that the laws did not regulate insurance practices, but rather HMO's relations with providers. No said Justice Scalia, the laws regulate insurance practices by conditioning the right to be in the insurance business on compliance with certain requirements, permitting participation by any willing provider. By analogy, taking CLE courses is not practicing law, but a state that requires lawyers to take them is regulating the practice of law. The court used this case to make what it called a clean break from its preemption analysis based on the McCarron-Ferguson Act phrase, business of insurance. Henceforth, judges should use two factors in determining whether a state law regulates insurance. First, the law must be specifically directed toward entities engaged in insurance. Second, the law must substantially affect the risk pooling arrangement between the insurer and the insured. I'll be back in a moment to discuss this term's federalism cases with Susanna Sherry.