Tuesday Round-up

By Jay Willis
on Nov 3, 2009 at 10:22 am

Jones v. Harris Associates continues to headline coverage of the Supreme Court this morning.  The WSJ Law Blog, Chicago Tribune, and Bloomberg all feature recaps of yesterday’s oral arguments.  In the blogosphere, Kim Krawiec at the Conglomerate agrees with Judge Easterbrook’s  “basic argument.”  She acknowledges that high levels of “interconnectedness” on corporate boards may lead to “favoritism…to the detriment of investors” but contends that there are enough competitive mutual funds that unhappy customers can transfer their assets to mutual funds with more reasonable fees.  And even though there are acknowledged problems with the market model of setting these fees, she argues, it is not clear that “courts can systematically do better” than the market.

In a Jones-related Washington Post editorial, the author argues that Judge Easterbrook’s faith in the ability of the common market to set appropriate fees is “false as a matter of theory . . . and as a matter of empirical fact.”  According to the author, most investors do not realize that the success of mutual funds is based largely on luck and that mutual fund companies will heavily market their most successful funds knowing that investors will pay high premiums for what they perceive to be a fair price for elite performance.

At the BLT, Tony Mauro covers the Court’s decision not to rule on the question – certified to it by the Fifth Circuit – of which statute of limitations applies to decades-old racially motivated capital crimes.  Mauro quotes Mayer Brown’s Stephen Shapiro, who posits that the Court may have declined to take up the question now because the case is still interlocutory and “a dozen other issues” remain pending.

David Stout of The New York Times also has coverage of the Court’s decision to decline the case, as do NPR and The Christian Science Monitor.  The latter quotes the dissenting opinion of Fifth Circuit Judge Jerry Smith, who blames the Justice Department for delaying for over forty years in prosecuting this “despicable crime.”

Concurring Opinions has a piece today on the implications of the passive voice in the Supreme Court’s statutory interpretation, highlighting two cases – Jones v. United States and Dean v. United States – in which justices relied on the use of passive voice to make conclusions about the intent of statutory provisions.  The author concludes that although the Court’s previous usage of passive voice arguments makes them at least relevant for argument, it is rare enough that counsel is probably best served “leading with other interpretive tools and throwing the passive voice argument in as a corroborative device.”

Concurring Opinions also links to the latest edition of the Duke Law Journal, which features both an article on the success of dissenting opinions that invoke federalism in influencing future cases and another piece on the many disparate constitutional theories often grouped together under the “originalist” label.

The Arizona Republic reports on the Court’s invitation to the Solicitor General yesterday to file a brief expressing the U.S.’s views on the Arizona law that requires employers to verify employees’ immigration status and punishes businesses which hire illegal immigrants.  The Wall Street Journal and Miami Herald also have coverage.

The AFP has coverage of the Supreme Court’s denial of certiorari yesterday in the case of Yasin Muhammed Basardh, a Yemeni national who remains incarcerated at Guanatanamo despite being cleared of terrorism charges six months ago.

Finally, as expected, the AP reports that attorneys for Beltway Sniper John Allen Muhammed will appeal today to the Court for a stay of execution.  Muhammed and his accomplice, Lee Boyd Malvo, killed ten people in the D.C. area during a three-week killing spree in 2002.