Wednesday round-up

By Conor McEvily
on Jan 19, 2011 at 10:03 am

Yesterday’s oral argument in The Boeing Company v. United States (which Nabiha also covered in yesterday’s round-up) garnered coverage from several major news outlets.  Describing the tenor of the argument, NPR‘s Nina Totenberg, observes that “the focus was on corporate greed and overall fairness in government contracting,” while Slate’s Dahlia Lithwick characterized the argument as a “rollicking roller-derby smash-up on American contract law.”  Similarly, in the New York Times, Adam Liptak notes that the Justices “did not seem inclined to use the opportunity to give the lower courts guidance about [the] contours” of the state secrets privilege.  Mark Sherman of the AP (via the Los Angeles Times) also has coverage of the argument, as does Robert Barnes of the Washington Post.  Finally, Professor Laura Donohue on ContraftsProf Blog offers her take on the case (with a follow-up by Professor Jeremy Telman), and asserts that “[t]he case points to a much larger issue in state secrets, which is the utter inadequacy of the doctrine to take account of how deeply private industry has become involved in national defense.”

Today the Court will hear oral argument in Federal Communications Commission v. AT&T Inc, a case addressing whether a Freedom of Information Act (FOIA) exemption protects the “privacy” of corporate entities.  In his preview for this blog, Lyle Denniston observes that in some ways the case represents “a return to the debate over corporate ‘personhood’ — a legal fiction that gained solid new substance in the Citizens United decision.”  The editorial board of the Washington Post weighs in on the case; it acknowledges that corporations have an interest in keeping certain confidential business information from public view, but it contends that because these interests have already been “specifically and amply protected” by FOIA, the Court “should not expand protections clearly crafted with individuals in mind to allow companies to shield an even broader swath of information from public scrutiny.”

The Court is also scheduled to hear oral argument in Astra USA, Inc. v. Santa Clara County, which presents the question whether federal courts can confer a private right of action for breach of contract on third-party beneficiaries of a government contract when the statute mandating the contract does not contain a cause of action.  A brief preview of the argument is available on this blog.

Briefly

• Mike Sacks at First One @ First discusses the prospect that the Court will grant cert. in Fisher v. University of Texas, a case in which the Fifth Circuit recently upheld the university’s race-conscious admissions policy leading to a ruling that affirmative action in higher education is unconstitutional.
• The editorial board of the New York Times discusses the role played by alumni of the Solicitor General’s office as advocates before the Court in private practice.
• At the BLT, Tony Mauro reports on yesterday’s denial of certiorari in a challenge to D.C.’s same-sex marriage law.