Before settling in to this week's topic I wanted to share a couple of links which address the issue we talked about last week, camera's in the courtroom.

If you're interested in the Justice's opinion on this issue check out this site, http://www.c-span.org/CamerasInCourt/default.aspx.

Also, C-Span has provided a link to a series of articles addressing this subject, which can be found at, http://www.c-span.org/CamerasInCourt/articles.aspx.

On November 2nd, the Supreme Court will hear arguments in the case, Jones v. Harris Assoc, L.P. ( Docket 08-586). The case examines the inherent conflict of interest which arises out of the relationship between mutual fund investors and the advisors who manage and create the funds.
The Court will consider the standard that should be used to determine whether fees charged by investment advisers breach the “fiduciary duty” that the advisers owe to the shareholders. The petitioners in this case are investors in several mutual funds formed and advised by the respondent Harris Associates. In 2004, the petitioners filed a lawsuit against Harris Associates alleging that the company had breached its ficuciary duty by charging them "excessive" fees and failing to provide full and accurate disclosure of material facts relating to compensation.

The Second Circuit Court granted summary judgement filed by Harris based on a 1982 decision in Gartenberg v. Merill Lynch Asset Management, Inc. which provided that a breach of fiduciary duty occurs only when an adviser "charges a fee that is so disproportionately large that is bears no reasonable relationship to the services rendered".

On appeal, the Seventh Circuit Court affirmed the district's court decision. On March 9, 2009 the Supreme Court granted the shareholders peitition for certiorari. The Court will consider the standard that should be used to determine whether fees charged by investment adviers breach the "ficudiary duty" that the advisers owe to the shareholders.

In my next post, I will continue the discussion of this case in which the Obama administration has urged the Court to put some clear limits on these fees.

To Televise or Not to Televise?

One of my followers, Dawn, brought up a very interesting question. Should oral arguments before the US Supreme Court be televised?

As mentioned in my previous post, C-Span has presented a week long series devoted to the U.S. Supreme Court. As part of their preparation of that coverage, they conducted a survey among 801 voters on the awareness and knowledge of the U.S. Supreme Court. I find the results to be quite interesting and think you will too. Before addressing the topic of televised coverage I'd like to share some of the results with you. You can find the result of the poll at the following link: http://www.c-span.org/pdf/C-SPAN%20Supreme%20Court%20Online%20Survey_070909_6pm.pdf.

88% of respondants believe that the Court has an impact on their daily lives however, only 49% could name a specific case heard by the Court. It's not surprising that out of that percentage, 84% named Roe v. Wade and 9% named Brown v. Board of Education.

79% are aware that there is no mandatory retirement age and 78% support a proposal by the Harvard Journal of Law and Public Policy that a 18 year limit be put into place. It's' interesting to note that the average tenure of the eight Justices serving prior to Sotomayor's appointment, is 17 years. Justice Souter who retired at the end of the last term, served 18.6 years.

Now to the question of televised arguments. The poll asked that very question and 65% of respondants were in favor. What do you think?

Personally, I am not in favor of this notion. Over the years, I've witnessed the effect that media has had on "news" coverage. I am apalled at the degree of mudslinging and trash talk that is presented as "news". In my humble opinion, Ted Turner out to be hung out to dry for his creation of CNN and its 24 hour "news" coverage. It's not so much the coverage itself that I find offensive, it's the labeling of this information as "news". I realize that I am getting off track and that is an issue for another time and place.

I feel that there are plenty of resources available to those interested in following the Supreme Court without empowering the media to sensationalize the process at their will. As an example, consider the circus like atmosphere that surrounds confirmation hearings. If these hearings were performed behind closed doors, could we have been spared the outrageous accusations that Justice Sotomayor is a racist? Let's face it, our national media is entrenched in the ratings game and I feel that the less media coverage the better. I will provide links to a few of the available resources on the Supreme Court.

I look forward to your comments!

Supreme Court Week on C-Span

C-Span is in the process of airing a week long series entitled, "Supreme Court Week". If you haven't had a chance to tune in thus far, please visit their website. You can watch interviews with the Justices, take a virtual tour of the Supreme Court Building, and view an interactive timeline which includes facts of significant events in the Supreme Court's History dating back from it's first meeting in 1790.

Tonight, Sunday Oct 11th at 9pm, interviews with Chief Justice Roberts and Justice Stevens will be aired. Monday night they will replay a wonderful overview of the court with a documentary entitled, "The Supreme Court: Home to America's Highest Court". It is fascinating.

About half way through the documentary, the viewer is taken through the process that occurs on days of oral arguments. As counsel arrives at 9:30am they are taken to the Lawyers Lounge where they are greeted by the Clerk of Court. This period of time is designed to put counsel at ease. The Clerk gives pointers, answers questions and offers ammenities to make them comfortable.

Meanwhile, ten minutes prior to 10:00am, a buzzer sounds in each of the Justice's quarters and they proceed to the robing room. As they put on their robes, they shake hands with each other and line up in order of seniority.

Arguments are limited to 30 minutes for each side and this is due in part to the fact that arguments have already been laid out. This is the first opportunity for the Justice's to learn how each of the other Justice's view the case. Each Justice has their own style of questioning. For instance, Justice Thomas does not like to interrupt counsel as they speak while Justice Alito says that without interruptions, the Justices would never get an opportunity to ask questions.

Following oral arguments, the Justices proceed to the Justice's Dining room for an informal lunch. It is a standard rule that they are not allowed to talk about the cases that have been presented. This tradition was established by Justice O'Connor.

The process of reaching a decision takes place in the Justice's Conference Room. Chief Justice Roberts begins the conversation by stating his view and offering his reasons for his vote. In order of seniority, the rest of the Justice's follow suit. Justice Thomas comments that there has never been an unkind word spoken during this process, which is quite remarkable. The assignment of who writes the opinion takes place at the end of the conference.

Drafts of the opinion are circulated among the Justices in order to give them an opportunity to provide feedback. I believe it is Justice O'Connor who says that if a dissenting opinion is strong enough, it can actually cause a change of view and affect the outcome of the case. Typically 3 or 4 drafts are prepared before the final opinion is decided upon. The purpose of the opinion is to teach and give reason for their decision.

C-Span has offered us an in-depth, behind the scenes look at the Surpeme Court and if you take the time to watch, you won't be disappointed.

Featured case of the week

On Wednesday, October 7, 2009 the Supreme Court will hear oral arguments in the case, Union Pacific Railroad Co. v. Brotherhood of Locomotive (08-604). I have decided to share this case with you because the Court's decision will have far-reaching effects on interstate commerce and future labor disputes in the railroad and airline industries. Perhaps more importantly, this case addresses the scope of the federal government's power in arbitration proceedings.

Union Pacific Railroad filed disciplinary charges against five of their employees. The employees invoked their right to dispute the charges by filing a claim with their union, The Brotherhood of Locomotive Engineers and Trainmen.

The Railway Labor Act, 45 U.S.C. 151 provides the procedure for resolving disputes. The first step is referred to as "on-property" proceedings which involve investigations, hearings and appeals on the railway property. If the issue is not resolved in this manner then the dispute is submitted to a conference. If a resolution is still not achieved, the parties may initiate an arbitrations proceeding before the National railroad Adjustment Board which will issue a binding decision on both parties.

In this case, the "on-property" proceedings and the conference failed to produce a resolution and the union initiated an arbitration proceeding with the Board. The union submitted notices of the discipline, hearing transcripts and all relevant exhibits relating to the contested charges. At the hearing, the Railroad argued that the union had not included written evidence of the conferencing stage and therefore, the Board should decline jurisdiction in this matter. The union did attempt to submit the evidence of conferencing but the Board would not accept the evidence after the fact and dismissed the claim.

The Railroad appealed the decision to the District Court which found for the defendants. The court's decision was based on the fact that conferencing is indeed a requirement and therefore, the Board acted appropriately.

Upon appeal, however, the U.S. Circuit Court of Appeals for the 7th Circuit reversed the ruling holding that the Board denied the Brotherhood due process because the statutes, regulations and the collective bargaining agreement of the parties does not clearly state that evidence of the conferencing is required.

In other words, the union followed correct procedures throughout the process and their right to due process was denied based on a technicality.

The Railroad has appealed the decision to the US Supreme Court based on their belief that the government should not be involved in arbitration disputes between private parties.

What do you think? Stay tuned for more.