Thursday round-up

By Amanda Rice
on Apr 28, 2011 at 9:09 am

Yesterday the Court issued its decision in AT&T v. Concepcion and heard its final oral argument of the Term in Nevada Commission on Ethics v. Carrigan.

Every major media outlet covered the Court’s much-anticipated decision in AT&T v. Concepcion. The Court, by a vote of five to four, held that California state contract law, which provides that class-action waivers in arbitration agreements are unenforceable when certain criteria are met, is preempted by the Federal Arbitration Act. Justice Thomas filed a concurring opinion; Justice Breyer filed a dissenting opinion, which was joined by Justices Ginsburg, Sotomayor, and Kagan. The opinions are available here.

David Savage of the Los Angeles Times calls the decision “a major win” for corporations, while the WSJ Law Blog’s Ashby Jones suggests that it “could spell the death-knell of consumer class actions.” Lawrence Cunningham of Concurring Opinions characterizes the opinion as “rich with empty rhetoric about arbitration being a creature of contract while being more explicit than ever that what matters in these cases is the Court’s powerful national policy strongly favoring a particular form of arbitration over other ways to resolve disputes.” At his Forbes Full Disclosure blog, Daniel Fisher suggests that “[t]he decision highlights the increasingly awkward conflict between supposedly conservative support of states’ rights and the liberals’ traditional support of consumer rights and federal power.” The New York Times, the Wall Street Journal, the Washington Post, the San Francisco Chronicle, Bloomberg, the Associated Press, CNN, Reuters, the ABA Journal, NPR, USA Today, the Christian Science Monitor, The Atlantic, UPI, Courthouse News Service, JURIST, ACSblog, and CPR all have additional coverage of and commentary on the decision.

The oral argument in Carrigan, in which the Court is considering the proper level of scrutiny for state restrictions on voting by elected officials, also generated significant media coverage and commentary. NPR’s Nina Totenberg notes that the Court has never before addressed “whether a legislative vote is free speech protected by the Constitution,” and she suggests that the Justices “seemed disinclined to interfere with state ethics laws.” CNN’s Bill Mears points out that “[m]embers of the high court themselves may be directly affected by the outcome, amid a period of increasing national debate over recusal in hot-button political matters.” SCOTUSblog, the Associated Press, Constitutional Law Prof Blog, and JURIST also have coverage of the argument.

Briefly:

• At ACSblog, Rochelle Bobroff highlights the surprising “gang of four” — Justices Scalia, Thomas, Ginsburg, and Kennedy) that was part of the majority in two sovereign immunity decisions (VOPA v. Stewart and Sossamon v. Texas) issued last week.
• ·Here at SCOTUSblog, Linda Mullenix recaps Monday’s argument in Erica P. John Fund v. Halliburton, the “fraud on the market” case, while Rose Ehler recaps Monday’s argument in McNeill v. United States, the Armed Career Criminal Act case.
• At the First Amendment Center, Tony Mauro discusses Tuesday’s argument in Sorrell v. IMS Health, Inc., the prescription drug records case. [Disclosure:  Goldstein, Howe & Russell represents one set of respondents in the case.]  He suggests that “[t]hough some Justices seemed interested in finding a way that states could regulate in this area to protect physician privacy, none seemed to champion Vermont’s law,” and he predicts that the Court will “give at least some form of First Amendment protection to the modern-day enterprise of data mining.”
• The Virginian-Pilot and the Daily Press report that on Saturday retired Justice Sandra Day O’Connor, along with journalist Jim Lehrer and historian Gordon Wood, will receive an award from the Colonial Williamsburg Foundation and participate in a panel titled “The Responsibilities of Citizenship.”
• Finally, happy birthday to Justice Kagan, who turns fifty-one today.