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Posted by: Perry Craft & Michael Sheppard on Aug 26, 2009

Journal Issue Date: Sep 2009

Journal Name: September 2009 - Vol. 45, No. 9

Summary of United States Supreme Court's 2008 Term

The "first Monday in October" marks a new Supreme Court Term, but the Court's workload never ends. After sorting through 8,851 filings[1] (7,132, criminal[2]; 1,719, civil), mostly petitions for certiorari, the Justices chose a relatively few "cert-worthy"[3] petitions for full review, and the Court issued about 80 formal "signed opinions" in its 2008 Term.[4] Written after lower court rulings, extensive briefing, and oral argument, "signed opinions" are thorough, regardless of result.

This article first briefly discusses the Court, its trends, and likely changes, but mainly focuses on opinions that affect Tennessee law and lawyers.[5]


Last Term, the Court expanded its heightened pleading standard; held that due process did not give defendants a right to modern DNA testing to prove their innocence, but did require a judge to recuse himself when he received excessive campaign contributions from a party to the appeal; upheld the indecency standard for a single utterance of the f-word; rejected a free speech challenge to a city's refusal not to place a monument in a park; invalidated a waiver outside an ERISA-approved QDRO; retreated from preempting state law; broadened retaliation for sexual harassment; capped CERCLA environmental liability; beggared antitrust law; permitted punitive damages against a ship owner when he willfully refused to pay maintenance and cure to an injured crew member; ruled a strip search of a student was unconstitutional; and narrowed the federal identity theft law.

Coming Changes

Mindful of courts' limited role,[6] most current justices claim fidelity to constitutional or statutory texts, are judicial conservatives, and highly value freedom of contract and private property rights. Reflecting those values, Court rulings tend to favor government and commercial actors, are unreceptive to plaintiffs and traditionally disfavored groups,[7] and show criminal defendants little sympathy. Since Republican presidents appointed seven of the nine sitting justices,[8] few court watchers find these trends surprising. Mr. Dooley famously observed: "[T]h' Supreme Court follows th' illiction returns."[9] Elections matter; the Court will change - slowly. First, President Obama named Elena Kagan solicitor general.[10] The solicitor general wields much influence with the Court. Unlike her immediate predecessors, she may not urge the Court to expand executive power or join large firms to ask the Court to preempt state law or restrict remedial laws. Second, Justice Souter, a moderate Republican, retired. Though vilified by social conservatives, he usually sided with business and government, but tended to vote with the minority in 5-4 decisions on social issues. Though his replacement, Sonia Sotomayor, the first Hispanic named to the Court, leans more to the left, her vote is not expected to upset that 5-4 balance. Five Justices are older than 70. If Obama serves two terms, he may name others; however, three of the four youngest justices are conservative and will influence the Court for years.


In Bell Atlantic Corp. v. Twombly,[11] the Court set a new heightened pleading standard, reinterpreting[12] Fed. R. Civ. Proc. 8. In Ashcroft v. Iqbal,[13] the Court expanded Twombly and imposed a heightened pleading standard in all civil actions, thus reversing precedent.[14] After 9/11 a Pakistani Muslim claimed jailors beat and abused him because of his religion and national origin and a former attorney general and FBI director adopted a policy subjecting him to unconstitutional discrimination. His complaint did not plead facts with particularity, and the Court dismissed the AG and director. Bare legal conclusions do not state a claim for relief for discrimination. Substantive law[15] required plaintiff to plead defendants violated a clearly established right and adopted a policy for the purpose of unconstitutional discrimination. Given 9/11's realities, the pleading fell short. To survive a Rule 12 motion, a complaint must cross the line from conceivable to plausible. Plaintiff lost.


For a quarter century, the Court has embraced arbitration, a trend continuing during the Term. In 14 Penn Plaza LLC v. Pyett,[16] the Court upheld a collective-bargaining agreement requiring union members to arbitrate claims under the Age Discrimination in Employment Act, 29 U.S.C.  § 621, thus reversing Alexander v. Gardner-Denver Co.[17] The Federal Arbitration Act (FAA) entitles parties in federal court to a stay of an action that is "referable to arbitration under an agreement in writing," and allows an appeal from "an order refusing a stay," 9 U.S.C.  § 3,  § 16(a)(1)(A). In Arthur Andersen LLP v. Carlisle,[18] the Court held that federal appellate courts have jurisdiction under  § 16(a) to hear interlocutory appeals to review denials of stays sought by litigants even when they were not parties to the arbitration agreement. Separately, in Vaden v. Discover Bank,[19] the Court ruled that federal courts must have a basis for jurisdiction over the underlying dispute in order to hear a motion to compel arbitration.[20]

Individuals with Disabilities Education Act (IDEA)

The IDEA, 20 U.S.C.  § 1400, requires states receiving federal funding to make available a "free appropriate public education" to all children with disabilities. School districts must work with parents to develop an "Individualized Education Program" (IEP) for each child. In Forest Grove Sch. Dist. v. T.A.,[21] a school declined to give an IEP to a student with ADHD, making him ineligible for special education services. The parents placed the student in private school and sought tuition reimbursement. The Court held IDEA amendments did not change the law and ordered the district to reimburse the parents.

Antitrust & Tariff Act

The 1930 Tariff Act imposes "antidumping" duties on "foreign merchandise," but not on international sales of services sold in the U.S. at "less than its fair value," 19 U.S.C.  § 1673. Section 1673 provides a process to address harm to domestic manufacturing from foreign goods sold domestically at an unfair price: If the regulator finds that a U.S. industry is threatened with material injury or negatively affected by foreign merchandise sold in the U.S. at less than "fair value," a duty is imposed. In U.S. v. Eurodif S. A.,[22] the Court applied the antidumping provision to imports of low enriched uranium (LEU), used as nuclear fuel for nuclear power plants. Domestic utilities contract to obtain LEU for cash plus un-enriched uranium delivered to a foreign enricher. Though the parties' contracts labeled the transactions sales of uranium enrichment services, the Commerce Department treated them as sales of foreign merchandise subject to antidumping law. Though it had changed course from an earlier interpretation, the Court deferred to the Department's interpretation. In Pac. Bell Tel. Co. v. linkLine Communs. Inc.,[23] private antitrust plaintiffs claiming a price squeeze did not fare well. Plaintiffs " ISP operators offering DSL services at retail " needed AT&T's infrastructure to connect their lines with their end users, the "last mile." AT&T served both as a wholesaler to Plaintiffs and as a retailer competing head to head with them. By terms of a merger (and before, by the FCC), AT&T was required to offer Plaintiffs wholesale services, but over time, the market had changed: satellite and wireless firms competed with DSL firms. Plaintiffs charged AT&T monopolized the market and violated the Sherman Act, 15 U.S.C.  § 2, by a price squeeze: A vertically integrated firm (AT&T) sold inputs at wholesale and finished goods at retail; through its power at wholesale, it simultaneously raised wholesale price of inputs and cut retail price of the finished goods, squeezing its retail competitors' profit margins. Plaintiffs claimed AT&T set high wholesale prices for DSL transport and low retail prices for DSL retail customers, squeezed their margins and maintained its monopoly control of DSL Internet access. As a rule, businesses may choose with whom they will deal. Dominant firms rarely incur antitrust liability for unilateral conduct. Generally a unilateral refusal to deal with rivals does not violate antitrust law. In Verizon Comms. Inc. v. Law Offices of Curtis V. Trinko LLP,[24] a firm with no antitrust duty to deal with rivals has no duty to provide them a sufficient level of service. Plaintiffs' claims were functionally indistinguishable from Trinko. AT&T had no antitrust duty to deal with Plaintiffs and thus did not violate the antitrust laws.


The Federal Employers' Liability Act, 45 U.S.C.  § 51, makes railroads liable to employees for on-the-job injuries in part caused by their employer's negligence. In CSX Transp. Inc. v. Hensley,[25] a worker contracted asbestosis on the job and sought pain-and-suffering damages, partly for fear of developing cancer in the future, which prior precedent allowed when the "fear is genuine and serious." CSX proposed jury instructions: the fear must be genuine and serious; and plaintiff must show proof to establish it, e.g., counseling. The trial court used State pattern jury instructions for pain and suffering, refused the proposed instructions, and the court of appeal affirmed a $5 million jury verdict, but the high Court reversed: the trial court should have given the jury instructions. Plaintiffs seeking fear-of-cancer damages under FELA must meet a high standard. Upon request, courts must give limiting instructions, a result influenced by the size of the award and the large number of pending asbestos cases.


The Employee Retirement Income Security Act (ERISA), 29 U.S.C.  § 1001, requires administrators to manage ERISA plans as per the governing "documents."  § 1104(a)(1)(D). ERISA forbids assigning or alienating benefits under covered pension benefit plans,  § 1056(d)(1), but this bar does not apply to qualified domestic relations orders (QDROs),  § 1056(d)(3). In Kennedy v. Plan Adm'r for DuPont Sav. & Inv. Plan,[26] the Court asked whether the terms of the limitation on assignment or alienation invalidated the act of a divorced spouse, the designated beneficiary under her ex-husband's (decedent's) ERISA pension plan, who purported to waive her entitlement by a federal common law waiver in a divorce decree that was not a QDRO. The Court ruled that the waiver was not rendered invalid by the anti-alienation provision. The plan administrator properly disregarded the waiver because it conflicted with former husband's designation as per plan documents. Since decedent did not file a new designation of beneficiary form with plan administrator, ex-wife received a $400,000 windfall.


In Altria Group Inc. v. Good,[27] "light" cigarette smokers claimed unknowingly they had inhaled as much tar and nicotine as regular cigarette smokers, a fact tobacco companies fraudulently concealed. The Court held that federal law did not preempt Maine's deceptive trade practices act, which like Tennessee law,[28] bars "unfair or deceptive acts or practices." States have long regulated deceptive advertising. Citing Cipollone v. Liggett Group Inc.,[29] the Court ruled that the Federal Cigarette Labeling and Advertising Act did not insulate tobacco firms from liability for their false statements about the relationship between smoking and health or preempt state law. State law did not target smoking, but created a general duty not to deceive. In Wyeth v. Levine,[30] the Court declined to preempt a suit against a drug manufacturer for inadequate warnings about a drug's dangers and upheld a jury verdict for plaintiff, who lost her arm. Directly injecting Phenergan into a patient's vein created significant health risks. The FDA deemed the drug's warning label sufficient when approving the new drug application in 1955 and later approved labeling changes. Wyeth claimed it was impossible to comply with state law and state tort suits stood as an obstacle to congress's purposes, substituting lay opinion for expert opinion. The Court disagreed. The injury was foreseeable and would not have occurred but-for the inadequate warning. Congress did not expressly preempt state law. Plaintiff won. The Court chided the FDA, which supported the manufacturer, for changing positions without a principled analysis. In Cuomo v. Clearing House Ass'n L.L.C.,[31] a State Attorney General sent letters to national banks demanding they hand over non-public information to determine if they had violated State fair-lending laws. A banking trade group and the Office of the Comptroller of the Currency (OCC) claimed an OCC regulation under the National Bank Act did not allow "visitation" by a state official. Historically, a sovereign's right of visitation over corporations was broad, and when the National Bank Act was enacted in 1864, "visitation" meant the act of government examining a corporation's affairs. The AG won. State law was not preempted.

Race, Sex, Age, Civil Rights, Age Discrimination in Employment Act (ADEA)

In Ricci v. DeStefano,[32] a city gave tests to firefighters seeking promotions. The scores resulted in few minorities being eligible for promotion. Fearing the scores resulted in a disparate impact violating Title VII of the 1964 Civil Rights Act, 42 U.S.C.  §2000e, the city scrapped the test. Firefighters (Whites and Hispanics) who scored highest on the tests and would have been eligible for promotion claimed the city violated Title VII's "disparate treatment" prohibition, discriminating on the basis of race. The Court ruled that a "strong-basis-in-evidence" standard should be used to resolve conflicts between Title VII's disparate-treatment and disparate-impact claims. The city did face a prima facie case of disparate-impact liability. Certifying the tests would mean the city could not consider Blacks for vacancies. A prima facie case of disparate-impact liability (a significant statistical disparity and no more) is not a strong-basis-in-evidence that the city would have incurred Title VII liability. The city would be liable for disparate-impact discrimination only if the tests were not job related and consistent with business necessity, or if an equally valid, less-discriminatory alternative existed that served the city's needs but the city refused to adopt. There was no strong basis in evidence to prove the tests were deficient. White and Hispanic firefighters won. In AT&T v. Hulteen,[33] the Court ruled that an employer did not violate the Pregnancy Discrimination Act (PDA), 42 U.S.C.  § 2000e(k), by paying pension benefits calculated in part under an accrual rule that applied only prior to the PDA's enactment, thereby giving less retirement credit for pregnancy leave than for other medical leave generally. The benefit calculation rule was a part of a bona fide seniority system under Title VII and thus insulated from challenge. Separately, Title VII forbids employers from "retaliating" against employers who report workplace race or gender discrimination. In Crawford v. Metro. Gov't of Nashville & Davidson Co.,[34] the Court ruled this protection from retaliation extends to an employee who speaks out about discrimination in response to an employer's internal investigation, but not on her own initiative. In Fitzgerald v. Barnstable Sch. Comm.,[35] a kindergarten student was bullied, sexually harassed, and abused on a school bus and at school. The school system investigated but took no corrective action, and the parents sued under Title IX of the 1972 Educational Amendments, 20 U.S.C.  § 1681(a), and the Civil Rights act, 42 U.S.C.  § 1983. A suit alleging unconstitutional gender discrimination in schools may be brought under Title IX's implied right of action and  § 1983: Title IX's implied private right of action did not conflict with  § 1983. In Pearson v. Callahan,[36] the Court retreated from Saucier v. Katz,[37] which held that to determine whether officials are entitled to the qualified immunity defense in civil rights suits, lower courts must follow, often on a less-than-complete record, an inflexible two-step process: (1) Whether the official's conduct was unconstitutional? (2) Whether the official violated a clearly established right? Separately, in Van de Kamp v. Goldstein,[38] the Court held that prosecutors retain absolute immunity when they act as prosecutors. There, largely based on a jailhouse informant's testimony, a man convicted of murder served 24 years in prison. The unreliable informant testified falsely, but the prosecutor failed to disclose to the defense facts undercutting his credibility. The Court ruled that a prosecutor has absolute immunity from  § 1983 civil rights suits when he did not disclose impeachment material whether due to failing to properly train or supervise his assistants or by not establishing an information system containing potential impeachment material. In Haywood v. Drown,[39] the Court ruled the Supremacy Clause, Art. VI, cl. 2, barred New York from withdrawing jurisdiction from its courts to hear inmates'  § 1983 suits against prison guards for damages when its courts heard all other civil right suits and provided complete relief. Its alternative forum, a state court of claims, only gave limited relief. New York could not divest its courts of general jurisdiction over federal claims. In Gross v. FBL Fin. Servs.,[40] the Court held that to find employer liability in a mixed-motives case claiming disparate treatment under the ADEA, 29 U.S.C.  § 623(a), a plaintiff must prove that age was the "but-for" cause of the adverse employment decision, not simply a "motivating factor" (the Title VII standard).


The 1980 Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C.  § § 9601-9675, provides for the "timely cleanup of hazardous waste sites" and ensures that parties responsible for contamination pay cleanup costs. In Burlington Northern & Santa Fe Ry. v. U.S.,[41] the Court considered "arranger" liability and apportionment under CERCLA. Though Shell knew that minor, accidental spills occurred during the transfer of pesticides from railroad to its distributor's bulk storage tanks, which were under the distributor's control, there was no inference Shell intended the spills to occur. Shell encouraged distributors to reduce spills' likelihood, which though not wholly successful, was insufficient to incur liability as "arranger" for the product's disposal under  § 9607(a)(3). Apportioning cleanup costs required a fact-specific inquiry. Apportioning 9 percent to the railroads was proper since they leased a minor part of the total land used by the distributor, and most spills contaminating soil and groundwater occurred on land owned solely by the distributor.

Racketeer Influenced & Corrupt Organizations Act (RICO)

RICO, 18 U.S.C.  §1961, makes it "unlawful for any person associated with any enterprise engaged in, or the activities affecting commerce, to participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity." RICO does not define "enterprise's" outer boundary, but includes any group of individuals associated in fact although not a legal entity. A RICO association-in-fact enterprise must have a structure with a purpose, relationships by associates, and enough longevity to pursue its aims, but no more. An enterprise's existence is shown "by what it does," not by "abstract analysis" of its structure. In Boyle v. U.S.,[42] a group responsible for several bank thefts lacked a leader, name or chain of command, but was an association in fact and thus an enterprise under RICO. The Court upheld RICO convictions.

Deference to Agencies

The Court often applies Chevron[43] deference and upholds agency interpretations of ambiguous statutes. In Negusie v. Holder,[44] an alien feared persecution in his country and sought "refugee" status in the U.S. He was coerced to serve as a prison guard and participated in persecuting people on account of race, religion, nationality, membership in a particular social group, or political opinion. Relying on Fedorenko v. U.S.,[45] the agency found the "persecutor bar" applied. The issue however was whether the 1980 Refugee Act, 8 U.S.C.  § 1101(a)(42), barred granting the alien relief. Since Fedorenko was not on all fours, and the Refuge Act was ambiguous, invoking Chevron, the Court ruled the agency should first interpret the statute and determine if relief was warranted. In Entergy Corp. v. Riverkeeper Inc.,[46] EPA regulations adopted under the Clean Water Act, 33 U.S.C.  § 1326(b), were challenged. In generating power, power plants generate heat and, to cool them, use cooling water intake structures drawing water from nearby water sources. The structures pose environmental threats to aquatic life. The statute specified use of the "best technology available." In context, the meaning was uncertain. Thirty years in the making, the complex regulations were costly to implement. Relying on Chevron, the Court deferred to EPA, which found its cost-benefit analysis was appropriate in adopting its regulations. In Coeur Alaska Inc. v. Southeast Alaska Conservation Council,[47] the Court ruled the Clean Water Act authorized the Corps of Engineers, not EPA, to issue a permit for discharging mining waste, slurry, and the Corps acted in "accordance with law" when it issued a permit to discharge slurry into an Alaskan lake.

Injunctions, Stays

In Winter v. NRDC Inc.,[48] environmentalists claimed the Navy's use of sonar harmed marine mammals, but the Court reversed a preliminary injunction enjoining National Environmental Policy Act violations: the public interest favored military preparedness over uncertain harm to mammals. In Nken v. Holder,[49] an alien sought a stay of removal under federal immigration law, which severely limits courts from issuing injunctions against removal. A "stay" is not typically deemed an injunction. The Court held federal courts may stay a judgment pending appeal to allow appellate review, but must ask: Has the applicant made a strong showing of likelihood of success on the merits or shown irreparable injury absent a stay? Will issuing a stay substantially injure others and affect the public interest? A stay is not automatic and requires an individualized judgment. A remand was ordered.


During Johns-Manville's bankruptcy organization, the bankruptcy court approved orders releasing Manville's insurers who contributed to the Personal Injury Settlement Trust and released Travelers from policy claims arising out of Manville's insurance policies. Two decades later, plaintiffs filed state court direct actions against Travelers, not Manville, for violating state law duties. In Travelers Indem. Co. v. Bailey,[50] the Court held that the earlier bankruptcy orders barred direct actions against the insurer.

Punitive Damages

A ship owner refused to provide maintenance and cure (food, lodging, and medical services) for a crew member injured working on a tugboat. In Atl. Sounding Co. v. Townsend,[51] the Court determined that the injured seaman may recover punitive damages for his employer's willful failure to pay maintenance and cure. Common law allowed punitive damages for maritime claims, and the federal Jones Act did not change the result.

Attaching Foreign Nations' Assets

Elahi sued Iran for planning his sibling's assassination, secured a $312 million default judgment and tried to attach another $2.8 million judgment that Iran had obtained against a U.S. firm. After Iran lost in lower courts, the State Department joined Iran in asking the Court to grant a certiorari petition. In Ministry of Def. & Support for the Armed Forces of the Islamic Republic of Iran v. Elahi,[52] the Court held that federal law blocked the $2.8 million judgment against Iran from attachment. Elahi did not fit any exception under the 1976 Foreign Sovereign Immunities Act (FISA), 28 U.S.C.  § 1610, amended by the 2002 Terrorism Risk Insurance Act. Elahi could not attach the judgment. Similarly, in Republic of Iraq v. Beaty,[53] Americans, captured and tortured during the first Gulf War, sued Iraq. While FISA contained an exception allowing suits against nations that the U.S. designated a "state sponsor" of terrorism,  § 1605(a)(7), a later enacted statute allowed the President to withdraw it. In foreign affairs, the President may suspend a valid law's operation. The captured soldiers lost.

Standing, Elections, Environment

In Brunner v. Ohio Republican Party,[54] a federal court issued a TRO[55] directing an Ohio official to update Ohio's Voter Registration Database to comply with the 2002 Help America Vote Act (HAVA). The high Court vacated the TRO: a private plaintiff may not enforce HAVA. To vacate the TRO, the Court heard an interlocutory appeal, a rarity in high Court practice, and ruled a private plaintiff lacked standing to challenge a voter registration dispute before the 2008 presidential election. In Summers v. Earth Island Inst.,[56] plaintiffs tried to enjoin the U.S. Forest Service (FS) from enforcing regulations exempting small fire-rehabilitation and timber-salvage projects from the FS's notice, comment and appeal process used for significant land management decisions. After filing suit, the parties resolved their dispute, but environmentalists tried to enjoin the FS from engaging in similar future acts, but plaintiffs lacked standing: there was no longer a "live dispute."

Firearms and Violent Felonies

Congress has set mandatory minimum sentences for carrying a firearm during the commission of a felony and for repeat offenders. In Dean v. U.S.,[57] during a bank robbery, Dean waved his firearm, walked behind the counter, grabbed bills, and fired the gun accidentally. Surprised, he fled; no one was hurt. He was convicted of conspiracy to commit a robbery, 18 U.S.C.  § 1951(a), and discharging a firearm while committing a crime, 18 U.S.C.  § 924(c)(1)(A)(iii) (forbids carrying or possessing a firearm during a "violent" crime, and sets a 10-year mandatory minimum sentence if the weapon is discharged plus the punishment for the underlying crime). Since the firearm "discharged" during the robbery, he received a mandatory minimum 10-year sentence on the firearm count. Dean argued the gun accidentally discharged; he did not intend to fire it. The Court held that the statute set a minimum 10-year sentence "if the firearm is discharged" and did not require the discharge to be done intentionally. Though accidental, Dean was not blameless. The law may punish people for the unintended consequences of their unlawful acts. In Chambers v. U.S.,[58] the crime, "failure to report" to jail was not deemed a "violent felony"[59] (broadly defined under the Armed Career Criminal Act (ACCA)), 18 U.S.C.  § 924(e), and did not subject the offender to an enhanced sentence. Separately, an amendment to the 1968 Gun Control Act, 18 U.S.C.  § 922 (g)(9), extended the prohibition of carrying firearms to those convicted of "a misdemeanor crime of domestic violence." In U.S. v. Hayes,[60] the Court ruled that an indictment charging  § 922 (g)(9) need only specify the predicate offense, not the domestic abuser-victim relationship.

Identity Theft

A federal law outlawing aggravated identity theft set a mandatory consecutive two-year prison term for individuals convicted of specified crimes if during the commission of them, the offender "knowingly" possesses or uses "without lawful authority, a means of identification of another person." 18 U.S.C.  § 1028A(a)(1). Here, an illegal alien gave a fake social security number to his employer that unknown to him belonged to a real person. In Flores-Figueroa v. U.S.,[61] the Court gave effect to the "knowing" requirement. A defendant must know the "means of identification" that he unlawfully possessed or used belonged to a real person.

First Amendment

Monuments: In Pleasant Grove City v. Summum,[62] a city refused to allow a private, non-mainstream religious group to place a religious monument in a public park. Though a public park is a traditional public forum for exercising free speech and "transitory expressive acts," the Free Speech Clause did not require the City to place the monument in the park. The Court determined that a city's placing a monument in a public park was "government speech," and forum analysis did not control or apply.


Federal law, 18 U.S.C.  § 1464, bars broadcasters from airing indecent language. The 1934 Communications Act, 47 U.S.C.  § 151, allows the FCC to license broadcasters subject to conditions. One condition, the indecency ban, forbids licensees from broadcasting obscene, indecent, or profane language. In FCC v. Pacifica Fd.,[63] the FCC applied the indecency ban to a daytime airing of George Carlin's "Filthy Words" monologue and defined indecency: patently offensive speech, measured by contemporary community standards for broadcast media; sexual or excretory activities aired during the day when children may be in the audience. Over time, the FCC found that even if used once, a non-literal use of the f- or s-word may be indecent. Here, performers briefly spoke either word on "awards" shows. The FCC fined the broadcasters. The Administrative Procedure Act (APA), 5 U.S.C.  § 551, permits courts to set aside "arbitrary" or capricious" agency action, 5 U.S.C.  § 706(2)(A), but does not subject all agency changes to a more searching review. Instead, the APA demands a reasoned analysis for the changes, but does not distinguish between initial and later agency action undoing it. In FCC v. Fox TV Stations Inc.,[64] the Court sided with the FCC and declined to hear a constitutional challenge.


In Ysursa v. Pocatello Educ. Ass'n,[65] Idaho law allowed a payroll deduction for public employees' union dues, but not for unions' political action committees. By barring payroll deductions for political activities, the State avoided appearing to favor union speech. The First Amendment bars a State from abridging freedom of speech, but gives no affirmative right to use State payroll deductions to obtain funds for expression. The Court upheld the law. In Locke v. Karass,[66] no First Amendment violation resulted from a local union using a portion of fees paid by non-union employees " who were required by state law to pay that part of union dues attributable to collective bargaining " to fund national litigation related to collective bargaining.

Fourth Amendment

The Fourth Amendment protects against "unreasonable searches and seizures." Before making an arrest, police must have probable cause or a warrant. In Herring v. U.S.,[67] an officer reasonably, but incorrectly, believed that a person had an outstanding arrest warrant, arrested him and during a search incident to the arrest, found contraband. Another police employee made a negligent bookkeeping error, unknown to the arresting officer at the time of arrest. Though the arrest violated the Fourth Amendment, the Court did not apply the exclusionary rule or suppress the evidence seized during the search. A Fourth Amendment violation does not require courts to suppress tainted evidence. The exclusionary rule applies when it may deter wrongful conduct, not for isolated police negligence attenuated from the arrest. In Ariz. v. Johnson,[68] no Fourth Amendment violation resulted when police frisked a passenger in a car temporarily stopped for a traffic offense. Citing Terry v. Ohio,[69] an investigatory stop (temporary detention) and frisk (pat-down for weapons) is not an unreasonable search or seizure. During a lawful investigatory stop, police may proceed from a stop to a frisk when they reasonably suspect the person stopped is armed and dangerous. Separately, after N.Y v. Belton,[70] lower courts typically upheld searches of cars incident to any arrest regardless of officer safety or preserving evidence. In Ariz. v. Gant,[71] the Court found lower courts had read Belton too broadly. After Gant was arrested for driving on a suspended license, then handcuffed and locked in a patrol car, police searched Gant's car and found cocaine. At the time of the search, Gant had no access to his car and could not destroy evidence or pull a gun. The search-incident-to-arrest exception to the Fourth Amendment warrant requirement did not apply. Concerned about citizens' privacy and possible abuse, the Court limited car searches during routine traffic stops.

Strip Searches

In Safford Unified Sch. Dist. #1 v. Redding,[72] the Court held that a strip search of a student by school officials, searching for over the counter drugs and a mild prescription type of Advil, was an unreasonable search, but school officials were not liable: qualified immunity provided a defense to a civil rights suit; the right was not established when the search occurred.

Confessions, Presentment

In McNabb v. U.S.,[73] and Mallory v. U.S.,[74] in exercising its supervisory role over federal courts, the Court ruled an accused's confession is inadmissible if given after an unreasonable delay in presentment[75] (bringing defendant before a judge). In Corley v. U.S.,[76] the Court found a later enacted statute, 18 U.S.C.  § 3501, narrowed, but did not reverse McNabb-Mallory. Section 3501 targeted Miranda,[77] and modestly changed McNabb-Mallory: A confession "shall not be inadmissible solely because of delay" in presentment if "made voluntarily" within six hours of arrest. Thus, McNabb-Mallory does not apply to confessions given within six hours. When a confession comes afterwards, the exclusionary rule applies. Courts decide whether the delay was unreasonable. Reading the statute as a whole and rejecting a literal approach that yielded an absurd result, the Court remanded the case.

Double Jeopardy

In Yeager v. U.S.,[78] along with other Enron employees, Yeager was charged with fraud and insider trading. The jury acquitted Yeager on the fraud counts, but "hung" on insider trading counts. Indicted again for insider trading, Yeager claimed a second trial would violate the Double Jeopardy Clause,[79] which forbids subjecting a person "for the same offence to be twice put in jeopardy of life or limb." If possessing insider information was a critical issue of ultimate fact for the fraud charges for which he was acquitted, a jury verdict deciding that issue for him protects against prosecution from a second trial if the fraud charge included any essential element necessary to convict for insider trading. The case was remanded.

Sixth Amendment

The Sixth Amendment affords the right to counsel, to confront witnesses, and to a jury. In Massiah v. U.S.,[80] the Court held a defendant is denied assistance of counsel after arrest when police have an un-counseled interrogation. In Kan. v. Ventris,[81] police inserted a jailhouse informant in defendant's cell who elicited a confession. The Court assumed a Sixth Amendment violation and turned to remedy: Excluding evidence obtained for a constitutional right violation is not automatic, but subject to a test balancing the cost to the public against deterring future violations and a defendant's ability to challenge it at trial. The Court held the state could not use defendant's incriminating statement made to a jailhouse informant elicited in violation of the Sixth Amendment in its case-in-chief, but may impeach a defendant's with it, a holding preventing perjured testimony from going unchallenged. The dissent wrote the "lamentable" result "privileged the prosecution at the expense of the Constitution." In Montejo v. La.,[82] the Court overruled Mich. v. Jackson,[83] which held when police interrogate an accused after he requests counsel at arraignment, police violate his Sixth Amendment right to counsel. Arrested for murder, the accused twice waived his Miranda rights. After lengthy interrogation, he confessed and agreed to go with police to find the murder weapon. While riding with the police, he wrote the victim's wife an incriminating letter that was admitted into evidence at trial, and he was sentenced to death. Once the adversary judicial process is begun, the Sixth Amendment secures the accused the right to have counsel present at all proceedings' "critical stages," including interrogation, but an accused may voluntarily, knowingly, and intelligently waive the right without consulting with counsel. In Jackson, the Court created a presumption against a Sixth Amendment waiver by analogy to Miranda, the Fifth Amendment-based prophylactic rule requiring warnings about the right to counsel before a custodial interrogation. When an accused waives Miranda, the Court found he typically waives his Sixth Amendment right to counsel. Though ABA Rules prohibit ex parte communications by state lawyers and suspect, they do not govern Sixth Amendment analysis. Since Jackson excluded incriminating evidence that may free criminals, the Court deemed its societal costs too high and jettisoned it.


In Crawford v. Wash.[84] 541 U.S. 36 (2004), the Court ruled that the Sixth Amendment's confrontation clause gives the accused the right to confront or cross examine State witnesses. In Melendez-Diaz v. Mass.,[85] a trial judge admitted into evidence affidavits reporting forensic testing showing defendant possessed cocaine. The Court held that the affidavits were "testimonial," and the affiants were "witnesses" subject to confrontation. Convictions based on affidavits, not live witnesses subject to cross examination, were reversed.

Sentencing Guidelines (SGs): In Apprendi v. N.J.,[86] the Court held the Sixth Amendment required a jury to determine any fact (except for a prior conviction) that increases the maximum punishment authorized for a particular offense. Later, the Court struck the SGs, but directed lower courts to use them as a starting point in sentencing. Court rulings about the SGs' use had caused confusion in lower courts. In Moore v. U.S.,[87] Spears v. U.S.,[88] and Nelson v. U.S.,[89] the Court clarified recent cases, notably Kimbrough v. U.S.[90] The presumption that a sentence within applicable SGs range is reasonable solely is for appellate courts. The SGs' range for prison terms is not mandatory for trial judges who may impose a below SG sentence. Hence, when sentencing for crack cocaine offenses, a trial judge may vary downward from the SG's sentencing range merely by disagreeing with the SG's 100:1 disparity between the jail time range set for distributing crack and for powdered cocaine. In Ore. v. Ice,[91] the Court ruled the Sixth Amendment did not forbid judges from determining facts to decide whether to give concurrent or consecutive sentences, a task many states had long given judges, thus limiting Apprendi.

Due Process

After a jury returned a $50 million verdict against a coal firm, but before an appeal could be heard, West Virginia held judicial elections for its Supreme Court of Appeals. The firm's controlling shareholder gave extraordinarily high campaign contributions and expenditures to elect a new Justice and dislodge a sitting Justice unsympathetic to his cause. The State appellate court reversed the verdict by a 3-2 vote. The new Justice, elected with the high campaign contributions, declined to recuse himself and cast the decisive vote. In Caperton v. A. T. Massey Coal Co.,[92] by 5-4 vote, the Court held the Justice's refusal to recuse showed too strong a probability of "actual bias" and violated the Due Process Clause. Separately, years after his conviction for sexual assault in state court, defendant claimed a due process right to subject the evidence that the police had gathered to modern DNA testing " at his expense. DNA testing has an "unparalleled ability" to exonerate the wrongly convicted, but establishing rules for DNA testing to prove innocence without damaging the criminal justice system is mainly a legislative task. After his conviction, Defendant liberty's interest in pursuing post-conviction relief is limited. In District Attorney's Office v. Osborne,[93] the Court found no substantive due process right to DNA testing; no fundamental principle of justice was violated. In Rivera v. Ill.,[94] a judge improperly denied a criminal defendant's peremptory challenge to seating a juror. Since the seated jurors were qualified, due process did not require reversing the conviction.

Briefly Noted

(1) Section 5 of the Voting Rights Act requires "covered jurisdictions" to obtain preclearance from federal officials before changing voting procedures. In Northwest Austin Mun. Util. Dist. No. One v. Holder, the Court suggested that  § 5 was unlikely to survive constitutional scrutiny. (2) In Jimenez v. Quarterman,[95] when state courts granted an out of time appeal for direct review to a state prisoner, it extended by that amount of time AEDPA's time period for filing a federal habeas petition.; (3) In Bobby v. Bies,[96] the Court rejected a mildly mentally-retarded capital defendant's double jeopardy claim when controlling law changed and state courts had not made a determination about his mental retardation in his previous trial. (4) In Carlsbad Tech. Inc. v. HIF Bio Inc.,[97] when a district court remands claims to state court after not exercising supplemental jurisdiction, the remand order is not based on a lack of subject-matter jurisdiction for purposes of 28 U.S.C.  § 1447(c), (d), and appellate courts' jurisdiction includes reviewing a district court order remanding a case to state court after a district court declines to exercise supplemental jurisdiction over state-law claims under 28 U.S.C.  § 1367(c). (5) The tonnage clause (Const. Art. I,  § 10, cl. 3)[98] forbids a "State" without the "Consent of Congress" to lay "any Duty of Tonnage." In Polar Tankers Inc. v. City of Valdez,[99] the Court struck a city ordinance imposing a personal property tax on oil tankers for the privilege of entering port; the tax closely correlated with cargo capacity, which related to tonnage not services provided to the ship, and was unconstitutional. (6) In U.S. ex rel. Eisenstein v. City of New York,[100] the Court ruled when the U.S. formally declines to intervene in a qui tam action under the False Claims Act, 31 U.S.C.  § 3729, the 30-day time limit to file a notice of appeal in Fed. R. App. Proc. 4(a)(1)(A) applies, not the 60-day time limit in Rule 4(a)(1)(B), which ordinarily applies to the U.S. (7) In Shinseki v. Sanders,[101] under federal law, the VA's failure to give veterans a required notice about the proof necessary to appeal adverse rulings for disability claims for injuries received on active duty was harmless error. (8) In Puckett v. U.S.,[102] the Court ruled that a forfeited claim (the U.S. violated a plea agreement's terms) was subject to the plain-error standard of review under Fed. R. Crim. Proc. 52(b). By not timely objecting, defendant forfeited his claim of error, and the accused could not obtain appellate review or enforce the plea agreement.


1. See www.supremecourtus.gov/public information/Chief Justice's Year-End Report on Federal Judiciary (2008) (Reported statistics about filings in calendar year 2007, the latest year for which information was available). In Caperton v. A. T. Massey Coal Co., 129 S. Ct. 2252 (Jun. 8, 2009), in his dissenting opinion, Chief Justice Roberts wrote that "8,241" "petitions for certiorari" were filed and "1.1 %" were granted in the 2007 Term. The number of petitions for certiorari filed in a calendar year differs from the number filed during a given Term of Court.

2. Pro se prisoners write most criminal law filings lodged with the Court, which are rarely granted; but in Moore v. U.S., 129 S.Ct. 144 (Oct. 14, 2008) (Per Curiam), the Court granted summary relief to a pro se prisoner.

3. A "cert-worthy" petition typically presents a conflict between the circuits, raises a substantial constitutional issue, or involves issues of great public importance. The Court does not sit to correct lower courts' errors.

4. The Court's official Web site, www.supremecourtus.gov/recentdecision/latestslipopinions (2008), lists or numbers 83 opinions issued for the 2008 Term, but two simply dismissed petitions as "improvidently granted," and one granted a stay pending review by the full Court. Thus, the number "80" appears more accurate. 2008 Term opinions are both emboldened and italicized. Typically, the Justices dribble out a handful of opinions at a Term's beginning, but finish with a flurry the following June. Then the Court takes its summer recess.

5. An Assistant DA failed to disclose mitigating evidence to an accused for sentencing purposes. Though Cone v. Bell, 129 S.Ct. 1769 (Apr. 28, 2009) (Stevens, J.), involved the complex federal habeas statute, the Court first cited Brady v. Md., 373 U.S. 83 (1963) (Suppressing material evidence favorable to defendant violates due process). By public records request, years after state courts affirmed his sentence, Cone saw the DA's file, finding undisclosed evidence. Stating Tennessee had taken inconsistent positions about "procedural default," the Court held that "adequacy" of state review for federal habeas law was solely a federal law issue. A limited remand was ordered.

6. In Horne v. Flores, 129 S. Ct. 2579, 2632 (Jun. 25, 2009) (Alito, J.), notions about limited role of courts and federalism clashed with standing concerns. There, parents of English Language-Learner students sued Arizona for violating the 1974 Equal Educational Opportunities Act (EEOA), 20 U.S.C.  § 1703(f) (State must "take appropriate action to overcome language barriers impeding equal participation by students" in its schools, but congress gave states much leeway in devising programs). A lower court ordered a district to take expensive remedial measures and, without more, applied it State-wide. The State did not appeal because then elected officials desired the result, unobtainable legislatively. Later, the State sought relief, and the high Court sided with the State. A State may get relief under Fed. R. Civ. Proc. 60(b)(5) when enforcing a judgment is "no longer equitable" and in institutional injunction cases, changed circumstances permit setting aside orders.

7. Not too long ago, the Court routinely remedied perceived past abuses against Indians, a disfavored group, but has change course since then. See U.S. v. Navajo Nation, 129 S. Ct. 1547 (Apr. 6, 2009) (Scalia, J.).

8. Justice Sonia Sotomayor, a Democrat, was appointed after the Court issued its 2008 Term opinions.

9. E. Ellis, Mr. Dooley's America, A Life of Finley Peter Dunne at 292 (Alfred P. Knopf Inc. 1941).

10. See www.usdoj.gov/osg.

11. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).

12. Critics argued the Court did not reinterpret, but rewrote Rule 8, thus discarding "notice pleading."

13. Ashcroft v. Iqbal, 129 S.Ct. 1937 (May 18, 2009) (Kennedy, J.).

14. Conley v. Gibson, 355 U.S. 41 (1957); Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).

15. Iqbal sued under the implied cause of action set forth in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). The Court now disfavors implied private rights of action and has not expanded Bivens in years.

16. 14 Penn Plaza LLC v. Pyett, 129 S. Ct. 1456 (Apr. 1, 2009) (Thomas, J.).

17. Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974).

18. In Arthur Andersen LLP v. Carlisle, 129 S. Ct. 1896 (May 4, 2009) (Scalia, J.), plaintiffs relied upon brokers, accountants, and lawyers (advisers) and participated in a tax shelter, which the IRS later deemed illegal. They sued in federal court. Plaintiffs' contract with the brokerage firm had an arbitration agreement. The trial judge denied the advisers' motion for a stay under the FAA  § 3, and the court of appeals dismissed their interlocutory appeal. While courts of appeals usually hear appeals from final judgments, the FAA,  § 16(a)(1)(A), creates an exception: an appeal may be taken from an order refusing a stay under  § 3.

19. Vaden v. Discover Bank, 129 S. Ct. 1262 (May 9, 2009) (Ginsburg, J.).

20. The decision was based on federal court jurisdiction and is not an exception to the high Court's embrace of arbitration. The Court has made it clear repeatedly that state courts must enforce arbitration agreements.

21. Forest Grove Sch. Dist. v. T. A., 129 S. Ct. 2484 (Jun. 22, 2009) (Stevens, J.).

22. U.S. v. Eurodif S. A., 129 S. Ct. 878 (Jan. 26, 2009) (Souter, J.).

23. Pac. Bell Tel. Co. v. linkLine Communs. Inc., 129 S. Ct. 1109 (Feb. 25, 2009) (Roberts, C.J.).

24. Verizon Communications Inc. v. Law Offices of Curtis V. Trinko LLP, 540 U.S. 398 (2004).

25. CSX Transp. Inc. v. Hensley, 129 S.Ct. 2139 (Jun. 1, 2009) (Per Curiam).

26. Kennedy v. Plan Adm'r for DuPont Sav. & Inv. Plan, 129 S. Ct. 865 (Jan. 26, 2009) (Souter, J.).

27. Altria Group Inc. v. Good, 129 S. Ct. 538 (Dec. 15, 2008) (Stevens, J.).

28. See Tenn. Code Ann.  § 47-18-104 (a) (Core provision of Tennessee Consumer Protection Act of 1977).

29. Cipollone v. Liggett Group Inc., 505 U.S. 504 (1992).

30. Wyeth v. Levine, 129 S. Ct. 1187 (Mar. 4, 2009) (Stevens, J.).

31. Cuomo v. Clearing House Ass'n L.L.C., 129 S. Ct. 2710 (Jun. 29, 2009) (Scalia, J.).

32. Ricci v. DeStefano, 129 S. Ct. 2658 (Jun. 29, 2009) (Kennedy, J.).

33. AT&T v. Hulteen, 129 S.Ct. 1962 (May 18, 2009) (Souter, J.).

34. Crawford v. Metro. Gov't of Nashville & Davidson Co., 129 S. Ct. 846 (Jan. 26, 2009) (Souter, J.).

35. Fitzgerald v. Barnstable Sch. Comm., 129 S. Ct. 788 (Jan. 21, 2009) (Alito, J.).

36. Pearson v. Callahan, 129 S. Ct. 808 (Jan. 21. 2009) (Alito, J.).

37. Saucier v. Katz, 533 U.S. 194 (2001).

38. Van de Kamp v. Goldstein, 129 S. Ct. 855 (Jan. 26, 2009) (Breyer, J.).

39. Haywood v. Drown, 129 S.Ct. 2108 (May 26, 2009) (Stevens, J.).

40. Gross v. FBL Fin. Servs., 129 S. Ct. 2343 (Jun. 18, 2009) (Thomas, J.).

41. Burlington Northern & Santa Fe Ry. v. U.S., 129 S. Ct. 1870 (May 4, 2009) (Stevens. J.).

42. Boyle v. U.S., 129 S.Ct. 2237 (Jun. 8, 2009) (Alito, J.).

43. Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984).

44. Negusie v. Holder, 129 S. Ct. 1159 (Mar. 3, 2009) (Scalia, J.).

45. Fedorenko v. U.S., 449 U.S. 490 (1981).

46. Entergy Corp. v. Riverkeeper Inc., 129 S. Ct. 1498 (Apr. 1, 2009) (Scalia, J.).

47. Coeur Alaska Inc. v. Southeast Alaska Conservation Council, 129 S. Ct. 2458 (Jun. 22, 2009) (Kennedy, J.).

48. Winter v. NRDC Inc., 129 S. Ct. 365, 382 (Nov. 12, 2008) (Roberts, C.J.).

49. Nken v. Holder, 129 S.Ct. 1749 (Apr. 22, 2009) (Roberts, C.J.).

50. Travelers Indem. Co. v. Bailey, 129 S. Ct. 2195 (Jun. 18, 2009) (Souter, J.).

51. Atl. Sounding Co. v. Townsend, 129 S. Ct. 2561, 2579 (Jun. 25, 2009) (Thomas, J.).

52. Ministry of Def. for the Armed Forces of Iran v. Elahi, 173 L. Ed. 2d 511 (Apr. 21, 2009) (Breyer, J.).

53. Republic of Iraq v. Beaty, 129 S. Ct. 2183 (Jun. 8, 2009) (Scalia, J.).

54. Brunner v. Ohio Republican Party, 129 S.Ct. 5 (Oct. 17, 2008) (Per Curiam) (Court prudently avoided becoming entangled with voter registration dispute before 2008 presidential election).

55. "TRO" means "temporary restraining order."

56. Summers v. Earth Island Inst., 129 S. Ct. 1142 (Mar. 3, 2009) (Scalia, J.).

57. Dean v. United States, 129 S.Ct. 1849 (Apr. 29, 2009) (Roberts, J.).

58. Chambers v. U.S., 129 S. Ct. 687 (Jan. 13, 2009) (Breyer, J.).

59. An alien convicted of an "aggravated felony" after admission is deportable." 8 U.S.C.  § 1227(a)(2)(A)(iii). Under  § 1101(a)(43)(M)(i), "aggravated felony" is defined by listing offenses involving fraud when the loss exceeds $10,000. After admission, an alien was convicted of fraud, which required no set loss. The alien stipulated a $100 million loss at sentencing. The U.S. then sought to remove him. Under ACCA, "aggravated felony" means the generic or categorical crime, but the immigration statute's language differed, and the Court imputed a different meaning. Thus, in Nijhawan v. Holder, 129 S. Ct. 2294 (Jun. 15, 2009) (Breyer, J.), the alien lost.

60. U.S. v. Hayes, 129 S. Ct. 1079 (Feb. 24, 2009) (Ginsburg, J.).

61. Flores-Figueroa v. U.S., 129 S. Ct. 1886 (May 4, 2009) (Breyer, J.).

62. Pleasant Grove City v. Summum, 129 S. Ct. 1125 (Feb. 25, 2009) (Alito, J.).

63. FCC v. Pacifica Foundation, 438 U.S. 726 (1978).

64. FCC v. Fox TV Stations Inc., 129 S.Ct. 1800 (Apr. 28, 2009) (Stevens, J.).

65. Ysursa v. Pocatello Educ. Ass'n, 129 S. Ct. 1093 (Feb. 24, 2009) (Roberts, C.J.).

66. Locke v. Karass, 129 S. Ct. 798 (Jan. 21, 2009) (Breyer, J.).

67. Herring v. U.S., 129 S. Ct. 695 (Jan. 14, 2009) (Roberts, C.J.).

68. Ariz. v. Johnson, 129 S. Ct. 781 (Jan. 26, 2009) (Souter, J.).

69. Terry v. Ohio, 392 U.S. 1 (1968).

70. New York v. Belton, 453 U.S. 454 (1981).

71. Ariz. v. Gant, 129 S.Ct. 1710 (Apr. 21, 2009) (Stevens, J.).

72. Safford Unified Sch. Dist. #1 v. Redding, 129 S. Ct. 2633 (Jun. 26, 2009) (Souter, J.).

73. McNabb v. U.S., 318 U.S. 332 (1943).

74. Mallory v. U.S., 354 U.S. 449 (1957).

75. Now, Fed. R. Crim. Proc. 5(a) governs presentment.

76. Corley v. U.S., 129 S. Ct. 1558 (Apr. 6, 2009) (Souter, J.).

77. Miranda. v. Ariz., 384 U.S. 346 (1966). In Dickerson v. U.S., 530 U.S. 428 (2000), on Fifth Amendment grounds, the Court ruled that 18 U.S.C.  § 3501 did not reverse Miranda.

78. Yeager v. U.S., 129 S. Ct. 2360 (Jun. 18, 2009) (Breyer, J.).

79. U.S. Const. 5th Amendment.

80. Massiah v. U.S., 377 U.S. 201 (1964).

81. Kan. v. Ventris, 129 S.Ct. 1841 (Apr. 29, 2009) (Scalia, J.).

82. Montejo v. La., 129 S.Ct. 2079 (May 26, 2009) (Scalia, J.).

83. Mich. v. Jackson, 475 U.S. 625 (1986).

84. Crawford v. Wash. 541 U.S. 36 (2004).

85. Melendez-Diaz v. Mass., 129 S. Ct. 2527 (Jan, 25, 2009) (Scalia, J.).

86. Apprendi v. N.J., 530 U.S. 466 (2000).

87. Moore v. U.S., 129 S.Ct. 144 (Oct. 14, 2008) (Per Curiam).

88. Spears v. U.S., 129 S. Ct. 840 (Jan. 21, 2009) (Per Curiam).

89. Nelson v. U.S., 129 S. Ct. 890 (Jan. 26, 2009) (Per Curiam).

90. Kimbrough v. U.S., 128 S. Ct. 558 (2007) (Trial judge may impose a below-SG sentence for crack offenses).

91. Ore. v. Ice, 129 S. Ct. 711 (Jun. 14, 2009) (Ginsburg, J.).

92. Caperton v. A. T. Massey Coal Co., 129 S. Ct. 2252 (Jun. 8, 2009) (Kennedy, J.).

93. District Attorney's Office v. Osborne, 129 S.Ct. 2308 (Jun. 18, 2009) (Breyer, J.).

94. Rivera v. Ill., 129 S. Ct. 1446 (Mar. 31, 2009) (Ginsburg, J.).

95. Jimenez v. Quarterman, 129 S. Ct. 681 (Jan. 13, 2009) (Thomas, J.).

96. Bobby v. Bies, 129 S.Ct. 2145 (Jun. 1, 2009) (Ginsburg, J.).

97. Carlsbad Tech. Inc. v. HIF Bio Inc., 129 S. Ct. 1862 (May 4, 2009) (Thomas, J.).

98. U.S. Const. Art. 1,  § 10, cl. 3.

99. Polar Tankers Inc. v. City of Valdez, 129 S. Ct. 2277 (Jun. 15, 2009) (Breyer, J.).

100. U.S. ex rel. Eisenstein v. City of New York, 129 S.Ct. 2230 (Jun. 9, 2009) (Thomas, J.).

101. Shinseki v. Sanders, 173 L. Ed. 2d 532 (Apr. 21, 2009) (Breyer, J.).

102. Puckett v. U.S., 129 S. Ct. 1423 (Mar. 25, 2009) (Scalia, J.).

Michael G. Sheppard MICHAEL G. SHEPPARD is a partner in the law firm of Craft & Sheppard PLC. A former insurance executive, he has more than 30 years’ experience in personal injury and insurance law. He has served as general counsel, has practiced in state and federal courts and is admitted in Tennessee and Ohio. He has managed litigation for a number of companies and now practices in the areas of ERISA, medical malpractice, product liability, workers’ compensation, personal injury and business transactions.

He may be reached at (615) 309-1707 or through his Web site, www.craftsheppardlaw.com.


Perry Craft PERRY A. CRAFT is a partner in the law firm of Craft & Sheppard PLC. A former deputy attorney general, he regularly lectures on developments and trends in the Supreme Court, constitutional law and federal practice. He has practiced law for nearly 30 years and litigated cases ranging from personal injury to class actions, trade regulation, commercial practices, administrative and regulatory law to constitutional law, and federal and state statutory causes of action in state and federal courts.

He may be reached at (615) 309-1707 or through his Web site, www.craftsheppardlaw.com.