company came with a record resembling john grisham's novel "the appeal." the case involved a $50 million jury verdict in favor of caperton, who charged that the coal company's predatory practices drove him out of business. the west virginia supreme court, dividing 3-2, reversed a judgment for caperton and declared victory for the coal company. there was one problem. justice benjamin, who cast the deciding vote in west virginia's highest court, was newly-elected to the court. the coal company's c.e.o. had to defeat -- had spent $3 million to defeat the incumbent whose seat benjamin won. dividing 5-4, we concluded that benjamin's participation in the case violated capertop's right to due process.

justice kennedy's opinion for the court, joined by justices stevens, souter, ginsburg and breyer, emphasized the truly extraordinary facts, the c.e.o.'s significant and disproportionate influence on the election, and the temporal relationship between the election and the pending case. pending case. finally, among these most-watched cases, and perhaps the most important case of the term, northwest austin municipal utility district. at stake is congress' year 2006, 25-year renewal of section 5 of the voting rights act, a measure initially enacted in 1965. under the act, nine states, seven of them in the south, and

some designated areas elsewhere, all with histories of discrimination against minority group voters, must obtain federal pre-clearance for any change in voting practices. the pre-clearance requirement extends to all local units within a designated state or area, and to gain pre-clearance the applicant must show that the proposed change has neither the purpose nor the effect of denying or abridging the right to vote on account of race. eight days after congress' latest reauthorization of the voting rights act, a small municipal utility district in travis county, texas, formed in the late 1980's, filed suit in federal court alleging that it never engaged in discriminal

that story voting practices -- discriminatory voting practices. the utility district thought a statutory exemption from section 5's coverage, a release from the obligation to pre-clear called a bail you the. if bail you the is not available to it, the utility district all thively argued, then the 2006 voting rights act, the reauthorization of the 1965 act, woulding unconstitutional. it would, according to the plaintiff, exceed congress' power to enforce the 14th and 15th amendments. congress had passed the reauthorization act by overwhelming majority in both houses. a three-judge federal district court in the district of columbia, stressing the deference due to congress, rejected the utility district's

argument and upheld the act. what the supreme court will do in this case remains to be seen. the second circuit ranked high on our grant list this term. we granted review in nine cases from the circuit and have so far decided six. the first four to come out yielded 5-4 decisions reversing the court of appeals in all four. i was among the dissenters. i thought the circuit got it right. [laughter] [applause] >> but in the two most recently-decided cases, the court affirmed the circuit's judgment. two of the reversals issued on the same perhaps fitting day, april 1st. [laughter] >> one of the two, entergy corporation, v. river keeper, he

e advocated a section of the clean water act, specifying standards governing cooler water intake structures must "reflect the best technology available for minimizing adverse environmental impact." several states and environmental groups challenged as unduly lax the performance standards that e.p.a. had set for these structures. concluding that statute did not permit the e.p.a. to use cost benefit analysis, the second circuit remanded the matter to the agency for clarification whether the e.p.a. had relied on that analysis. the supreme court held that the statute reasonably could be read to allow cost benefit balancing. stin stevens, the lead dissenter, thought the second circuit was absolutely right and he criticized the majority for

diluting the strength of congress' best technology available instruction. second of the april 1st decisions, 1410 plaza v. highiate, concerned a collective bargaining agreement providing that union members had to arbitrate, not bring suit in court, for complaints under the age discrimination and employment act. relying on a past marking 1974 titled decision, alexander v. gardener denver, the district court and in turn the court of appeals held that a collective bargaining agreement could not waive covered work ers' rights to a judiciary forum for claims that congress created. the supreme court's refers denver to -- shrunk gardener denver to petite size.

justice sutor writing for the dissenters explained why our 230-year-old precedent remained sound and should have controlled in 1410 plaza. f.c.c. v. fox television stations decided that the end of april was, i thought, a case that should never have gotten off the ground. the court upheld the f.c.c.'s 2004 determination that broadcast of isolated utterances of the f or s word could be condemned as indecent under federal law. the second circuit had set aside the agency's position as arbitrary and capricious under the administrative procedure act and as a post script the court of appeals expressed doubt that f.c.c.'s current fleeting expletive regime could survive first amendment inspection. the supreme court reversed, holding that f.c.c. had

adequately explained its new policy. because the court of appeals had not ruled on the constitutionality of the f.c.c.'s orders, the court declined to address that issue. justice breyer wrote the principal dissent, which essentially agreed with the second circuit's analysis. and in a separate dissent, i noted the long shadows the first amendment cast over what the commission has done. justice brennan, i recalled, had warned over 30 years ago that the government should take care before enjning the broadcast of words or expressions spoken by many in our land of cultural you willalism. -- lurallism. the -- pluralism. the word, i'm told, was spoken

in the argument before the court of appeals, but the lawyers were alerted that some of the justices might find that unseemly. so only the letters f and s were used in our court. [laughter] >> in mid-may, the court reversed the second circuit for a fourth time. the case was ascroftv. ikthal. it was initiated by a pakistani muslim arrested on criminal charges in the wake of 9/11 and held under highly-restrictive conditions in brooklyn's metropolitan detention center. as plaintiff in the bivens action, it -- a number of federal offices alleging his harsh treatment carried out a discriminal that story policy under which he was designated a person of high interest solely because of his race, religion or

national origin. former attorney general ashcroft and the director of the fbi were both named defense. they sought threshold dismissal on grounds of qualified immunity. disagreeing with the district court and the court of appeals, the supreme court held ikthal's pleadings insufficient to stay the claim for relief against ashcroft and the fbi director. the majority opinion on justice sutor's dissent variously interpreted the court's 2000 decision in bell atlantic corporation v.tromley. under tromley, a plaintiff must allege facts that if taken as true state a plausible -- plausible basis for relief.

the district judge [indiscernible] with us. jerry didn't create the applausibility standard, but he did begin the whole business. [laughter] >> so perhaps he can tell us which side got it right in ikthal. [laughter] >> in my personal view, the court messed up the federal rules. justice breyer dissented separately in ikthal to underscore a key point the circuit had made. when a government defendant asserts qualified immunity, the trial court responsible for managing the case constructs a discovery in ways that diminish the risk of imposing unwarranted

burdens on high-level officials. on june 8th, the court broke the string of reversals by affirming the second circuit twice in boyle v. the united states we held 7-2 that an association in fact enterprise under ricoh requires no organizational structure beyond the defendant's predicate acts, and in united states exrel isenstein versus city of new york we held that a plaintiff not joined by the government has the usual 30 days and not the government 60 days to file a notice of appeal. three cases from the second circuit await decision. the backdrop for one of those cases, travelers' indemnity company v. bailey is the [indiscernible] bankruptcy plan

ended to releigh johns men'sville from as bess to us liability. at issue is an attempt by travel ers, johns manville's primary insurer, to pursue recent lawsuits against it and other insurers for conduct relating to their own coverage of asbestos manufacturers to what they did and not to what johns manville did. next, in you mow v. clearing house association, -- cuomov. clearing house association, the court is considering a position of the national bank act limiting the exercise of visitor yal powers over national banks. interpreting this provision, the office of the controller of the currency adopted a regulation prohibiting states from enforcing against national banks, federal or state, federal

or state laws governing banking activities. the controller invoked this regulation to gain a federal court injunction against the new york attorney general when that officer attempted to investigate national bank's lending practices for violations of state and federal antidiscrimination laws the second circuit affirmed the injunction in principal part, holding that controller's regulations reasonably interpreted the ambiguous term visitorial powers. finally and foremost in importance, riciv. destefano -- not to certify the racially skewed results of a promotional exam for firefighters. ricci and his fellow

plaintiffs, mostly white, performed well on the exam. most african-americans and hispanic test takers scored low. the city asserted that if it certified the test results, it would be vulnerable to a title vii disparate impact suit. disappointed minority firefighters would target the examination's failure to identify and accurately test for the skills most relevant to leadership posts. ricci, on the other hand, sees the city's refusal to certify the test results as a clear case of reverse discrimination prohibited by title vi and the equal protection clause. new haven prevailed on summary judgment in the district court, and the second circuit affirmed relying on the opinion of district judge arterton. the supreme court decision, one can safely predict, will be

among the last to come out this term. addition to the nine second circuit cases the court heard this term, we reviewed 15 cases raising questions on which the circuit had issued an opinion. we agreed with the second circuit in seven of those and disagreed in four. one of the four still to be decided is forest grove school district v. t. a. that case raises a question that divided the supreme court 4-4 last term when we considered the second circuit's decision in board of education v. tom f. the question presented, under the individuals with disabilities education act, may parents gain reimbursement for private school tuition when their child had not previously

received special education in a public school. next term we have already granted petitions in three cases from the second circuit. first, reid alfamerev. munchnik. then we will consider when the federal courts have subject right -- over class actions when most members of the class have not registered their copyrights. second in hemi group v. city of new york, we will consider whether the city can meet ricoh's standing requirements by alleging injury resulting from nonpayment of taxes. and third, shady grove orthodick associates v. all state insurance company presents an issue procedure teachers will follow with rapt attention.

may a state legislature forbid recourse to class actions for claims arising under state law but filed as diversity cases in federal court. well, that completes my report on the 2008 to 2009 term. and i invite judge livingston and judge cravitz to join me in conversation. [applause] >> you're watching c-span's america and the courts. next, seventh circuit chief judge frank easterbrook on the issues and challenges the seventh circuit has faced this past term and what's ahead in the new term. he spoke at the seventh circuit's judiciary conference in indianapolis on may 18th.

>> thank you. two speakers at lunch makes for a long program. and you want to hear from chief justice shepard, so i will be brief. the most significant change in the circuit during the last year is our decision to invite some district judges to sit with us after a hiatus of 15 years. we're doing this needs assistance. we can do our own work. and any way, asking active district judges to sit with the court of appeals doesn't increase the judiciary system's capacity, since time devoted to appeals is lost to the district court. the reason we're doing this is not a desire to ease an overload of work, but a desire to promote understanding and cleanallity. i've begun by inviting the more recent appointees to the district court so that they can get better acquainted with how the court of appeals works, how

the appellate process works, with who the judges of the court of appeals are, with how they think. and at the same time i've urged judges of our court to hear some trials, to go and learn more about how the trial process works. seems to me that judiciary system as a whole is stronger when its members have experience with the process from beginning to end, and the judiciary knowledge and insight yield benefits for litigants as well. so all of the circuit's district judges with five years or less of service have sat for two days on the court of appeals during the last few months. there are really quite substantial benefits when appellate judges and district judges get to know one another as colleagues instead of just people who meet occasionally at conferences like this or who engage in back and forth in their opinions about why the other made some hideous legal error.

working cooperatively helps us, and i think that means it helps you. my plan is to invite next fall and winter district judges who were appointed between six and 10 years ago, plus awe newly-appointed district judges, roughly six months after they joined the bench. but i don't plan to invite any district or circuit judge from outside the circuit. those kind of invitations wouldn't have the benefits i've mention. and as we proceed along this path, i would welcome any reactions you have to this program. we always try to keep our ears open. we've got a quite a lot of years on the court of appeals, not just mine but those with all of my colleagues. so i hope you will pass on to me and my colleagues any reactions you have about whether you perceived this to be a benefit to the bar or a detriment. now, there's another subject on which your assistance would help the court. this is something i mentioned at my state of the circuit address

last year. and i want to emphasize again. judges, alas, are not immune to the risks of aging. and when a judge slows down, i need to know it. often the cause, we have found out, is a drug prescribed for a medical condition without awareness of a side effect, such as drowsiness, that can interfere with judicial work. and when that's so, a simple intervention such as a different prescription, may be very effective. other issues may be harder to cure but are no less important. you should feel free to talk to me, to collins fitzpatrick, our circuit executive, or to the board of the seventh circuit bar association, which has agreed to serve as an intermediary if you prefer and none imity. but before i know how well the judges of this court are functioning the better we can administer justice. this morning gino manuel low gave his report about the

courts' functions. i want to show the highlights which show i think that 15 courts of this circuit are in good shape. first and most important, court of appeals, the district courts and the bankruptcy courts, are current in their work. this isn't to say that some cases may not take too long. it isn't to say that there's no room for improvement. but i think we can be proud of the judiciary's everyday performance. this is possible in large part because case loads have remained reasonably steady. during the 1970's, for example, appeals rose about 9% per year. and with compounding that was deadly. i concentrate on the court of appeals but the numbers are very similar for the district judges. after all, appeals are coming from case closures in the district courts. so please excuse my concentration on appellate numbers. during the 1980s appeal rose about 5% annually. but since then the annual rate has been 3% and under. a bad year, such as 2005, when

appeals rose about 15% is balanced by good years such as 2006 and 2007 when appeals fell 10% per year. there was a 8% increase in appeals last year. and the upshot of that is that the seventh circumstance nut 2008 heard almost exactly -- circuit in 2008 heard almost exactly as many appeals as in the year 2000. in the district courts of the circuit, new filings rose last year by an average of 3.5%. the first increase after six years of declining litigation. we much appreciate the fact that you see less need to file litigation. we hope that's because our precedent is in good shape. but we can keep the system running as long as the docket remains reasonably stable. and of course, a reasonably stable docket has other benefits for how well the court can

operate. again, think of the -- i'll mention some numbers from the court of appeals. last year the seventh circuit heard oral argument in 57% of all appeals. and that is fundamentally all cases where there are lawyers on both side. there are few exceptions for cases covered by very recent decisions of the supreme court. but if you have a case where there are lawyers on both side you can expect that your case will be argued in the seventh circuit. no other court of appeals came close. the next-highest number is 45% in the d.c. circuit. and there are several courts of appeals that don't hear oral argument in even 20% of their cases. the fourth circuit for example heard arguments in 15% of its appeals. there is of course a tradeoff. that means that oral arguments in the seventh circuit are short. we allow 10 minute per side arguments. the judges insist that lawyers get to the point. but i do think that those costs

are worth bearing. the tradeoff, having a very leisurely oral argument, would put us down in the 20% range rather than the 57% range. our circuit also explains it is. last year the court of appeals issued 93 published opinions back in 2008, more than any other circuit. the ninth circuit which has three times as many judges and oodles of visitors issued 672 published opinions. seventh circuit publishes opinions in 51% of all appeals. the national average is 19%. i think those numbers speak for themselves. the court also continue well in outside measures of quality such as success when viewed by the supreme court and in -- in other courts in the circuits. likewise the district courts are current and productive and again much aided by the stability --

not only by the stability of the caseload but by the fact that president in the senate of the three -- the senators from the three states of this circuit have avoided the wrangling that has afflicted other courts of appeals. -- and district courts. the fourth circuit, for example, has had one seat vacant since 1994. and another seat vacant since 2000. nothing like that has plagued any court within this circuit. we don't have quite full employment, but we are close to that. the coming year may pose a test, however. as many of you know, the western district of wisconsin will have a complete turnover in 2009. judge shabaz took senior stat news january and chief judge crab will take senior status effective on the appointment of her successor. filings in western wisconsin went up 7% last year, and effective judiciary capacity fell by 50% because of medical

leave. a crisis in that court has been averted only by the assistance of many other district judges in the circuit who have been pinch hitting. judges griefbach, statnewlier and -- all agreed to try cases in wisconsin last year. several arguments left them off the hook but without their willingness to pitch in the cases wouldn't have settled. and district judges moody and adelman are working on -- the southern district of end also faces hard times. it has -- of indiana faces hard times. it has five authorized position, but need more. it's among the district's busiest per filings per judge and has held its own only through superhuman efforts. this year there will be two vacancies. david hamilton of chief judge has been nominated to the seventh circuit, and larry mckinney will take senior

status in july. we hope the political positions will fill these positions promptly and with luck the political positions may add the needed sixth seat. i've mentioned that workload and the judges' long hours, despite modest compensation, we expect the active judge toss work hard and they surely do. but we have no right to expect but truly receive is the dedicated service of our senior judges. five sen five senior judges of the court of appeals continue to provide help. 21 senior district judges are hard at work, and several recalled magistrate and bankruptcy judges likewise perform essential services. i'd like all our senior and recall judges to stand up and receive the recognition they richly deserve. [applause]