the issue out of the state legislatures an state courts where they have been dealing with it very well and allow the federal courts to interview, and as roberts wrote, we are reluctant to enlist the federal judiciary in creating new constitutional rules for d.n.a. .

that did us -- ought to be recognized as a constitutional right. >> the federal court should be reluctant to get itself and tangled into issues of state conviction release procedures. they need to do so. those procedures are inadequate fundamentally. that interesting opinion that came down this week -- the compensation clause case. >> that is the next one. >> forehead. >> -- go ahead.

there are two pairs on the conservative side of the court. in this sixth amendment confrontation case, which asked if it defendant has the confrontation right to cross- examine the laboratory technician, you have distraite -- what part of confrontation did you not understand from one justice, joined by justice thomas, and the three of the liberal justices. there is the pragmatic conservative side enjoyed by the liberal side. some saying you will create a huge mess in the crime labs in court rooms of the country. >> that was a perfect segue.

this was another big case. it looks at how the court -- this case is the last of the most recent and perhaps one of the most sweeping decisions on the court in recent years to refine their prudence of the confrontation clause. criminal prosecution has the right to be confronted with in of the witnesses against him. the courts over the past 15 or so or longer than that 18 or 19 years have been looking at what that has meant. in this case, they said -- this case came about 11 person was arrested for having cocaine. -- about when one of person was

arrested for having cocaine. the lab report was at his trial that said the white stuff in the baggy he stepped underneath the seat was cocaine -- that he stuffed underneath the seat was cocaine. the issue was whether or not that affidavit was ok or that testimonial evidence was ok. the supreme court said yes. the affidavit -- affidavits were ok. i am not sure i agree with you on the voting rights decision by john roberts, but there was dissent by justice kennedy. it was somewhat repetitive. he voted quickly. he basically said the court

sweeping away some of the rules. it was one of the most sharpest the sense i have seen from kennedy, maybe because he does not right that many of them. this case is quite significant. it will take some time to shake out. looking at the court and the justices, it is an interesting line of justices in this case. three liberals joining scalia, kennedy writing the dissent, bryant joining alito. when we looked at the role of the justices and how they change the courts, we will see sonia sotomayor having her own impact. the confrontation close -- plus

has had a lot of influence. if you look back to the first term of the supreme court, there is a case called white versus illinois. it is about a man who was convicted in a sex abuse case. the girl accused -- who accused them should have to go in and testify against them or so he was arguing. they analyze that in the way the evidence was reliable and here's a. thomas wrote a concurrence. he urged the court to rethink the way we look at this entire issue. he looked at it historically. he talked about the trial of sir walter raleigh for treason.

they did not want to have trials by affidavit. justice scalia " at some length from that -- quotes at some length from that. i only bring a sub because when we think about the courts, this goes back to something we were talking about at the beginning in transparency in. you do not know what is happening behind closed doors. it is fascinating to see cases where justice thomas -- where we see his powerful dissent. there are cases where he has had an influence in shaping law that we do not normally think about. he made quite a mark on that supreme court after his dissent. he is often alone.

there are areas of the law where he has shaped it quite significantly as in the confrontation clause. >> we have to move on. sorry. we would love to see more. could you take into some case procedure? >> yes. this is a case about civil procedure. i'd like to make the case that this is perhaps the most important case of the term practically. it gives us the strongest window into the teachings of the roberts court. it comes other of the terrorism context. it follows someone who was picked up after 9/11. he was treated in an improper

way because he is a muslim. the court was of the a on looking at civil procedure. it rejects the claim because the argument is civil procedure requires that a plaintiff having a short statement of claim showing the pleaders willies. justice kennedy says there is nothing in the complaint that shows he is entitled to release. these are conclusive statements that he is discriminated against because he is a muslim. it is not surprising given the events of 9/11 that moslems may have been in proportionally impacted -- moslemuslims may hae

been in proportionally impacted. they were looking at people who were more likely to be connected to the events of 9/11. the way to understand the role in this case, and i think it is a dramatic case, that in pleading, you have to show that there is some reasonable this mission. even at a pleading stage, the inference is of some facts that you can infer or that it is possible or plausible that some violation has occurred here. let me tell you why i think it is important practically and why it is important to understand the decision on this case more

generally. first, the court in an antitrust context made much of the same argument in dealing with a case at the pleading stage because the antitrust allegations did not have enough factual information to suggest that there was something wrong going on here. what this case shows is that this person is not limited to antitrust. across the board, there is a requirement that you show this reasonable submission even during the pleating case. it has been cited almost 7000 times in the two years that it has been decided. that issued the enormous significance of this. all cases can be addressed at the pleading stage.

the possibility of pleading going poleward is important. second, it gives us an enormous powerful window in the changes in how we regard a justice in the united states. some of the liberal pleading cases, from the court. it really tries to get a balance between two kinds of consideration. on one hand, if you want people to come to the court and make their case even if they do not have possession of all of the backs. -- facts. on the other hand, if you come to the court, they could have the advantage of a huge amount of discovery. it depends on what we are going to wait for more strongly about how liberal our pleadings rules will be.

and i think what the tomalley and it was suggested that in and there is a different balance and a greater concern about the clause of discovery. what is actually destroyed liberal pleating is liberal discovery. it imposes all of these costs. there were two decisions that were habit contested. with justice souter, -- i think it shows part of the problems going forward of this new plausibility standard or reasonable since -- reasonable suspicion standard for pleading. it may be in the eyes of the beholder. i think that as a possible downside of this kind of rule. it has some potential of

constraining costs. at the supreme court level, one can see there is another theme of the roberts court. one person would have called it the path of verger -- virtue. looking at procedure issues and getting rid of the case before deciding constitutional issues. we see that right across the board in this term. we have already discussed the voting rights case. that was a manner to avoid the constitutional issue. justice alito decided the courts will no longer be required to decide the constitutionality of an action before beginning to the qualified immunity issue. that allows this to court and appellate courts to decide

whether somebody is qualified by immunity in. another area is standing with the court in this term. these are ways the court manages to avoid taking strong positions on constitutionality. i think it is in keeping with the attitude we saw from justice roberts. that may be his most passionate interest. justice roberts wrote one law review article. it was all about the implication of the actual -- the way the

court can actual act to advance justice by not making a decision on the matter. i think this case has multiple meanings. in some ways, it may be the most important case of the term. >> linda, you had a comment on that. >> to emphasize the vigor of the justice souter's opinion. he said, i wrote tom delay and it is not what i meant. the in the sherman act case, under one theory it was completely innocent. under another theory it was collusive. he said when there are two plausible theories, one of which is completely innocent behavior, you have to show more than that in order to get discovery.

the court really changed the game in this i think and going beyond that. i think it is interesting that there was no common ground at all between the majority of the dissent in that case. they reversed a very modest opinion by saying, we realize that a discovery in this context of these detainees. we think discussion should be limited. it provided a vehicle for the

majority to look at this. >> you mentioned the environmental cases. can you take us into that? >> yes. the standing point -- there were five environmental cases. the environmental side lost all five. i think it will be characterized as a big loss for environmental interests. most of these cases had to do with other grounds for decisions. one was standing, involving the extent to which people were objecting to a forest service policy with regards to cutting trees to bring this challenge notwithstanding the facts were there will look at the processes and procedures that the case had

been settled. justice scalia wrote a 5-4 decision. saying there was no standard in this case. roberts also wrote an article about standing. john roberts was a special assistant to the attorney general during the reagan and ministration. -- reagan administration. there were questions about what arguments we could make to the supreme court to advance our goals. standing was a big thing with the justice department. john roberts was a part of that. when he did become chief justice, one of the first opinions he wrote was a case dealing with dimer chrysler --

daimler chrysler. it was all about standing. i think it was his first opinion or second opinion as chief justice. he wrote a powerful standing decision going down various different bases for speeding in rejecting all of them. the other cases in the environmental area -- one case was where the ninth circuit had issued a decision that restricted the use of sonar by submarines because of the damage it might do to wales and the submarine's one. the next case was the one dealing with the loggers who won. the next one had to deal with the use of the best available

technology to pool water. that was best available technology piccolo cross benefit analysis, which won. -- technology versus cost- benefit analysis, which won. the gold mining company case was also discussed. they were concerned about killing the fish in this case. was the thinking of them as bait rather than fish. they were going to be killed temporarily. after this was done, the wildlife would be ok. the gold miners one in that case. they had to deal with deference

in decisions that have been carefully made by the administrative agency. the case involving the water going from a nuclear reactor, the cost-benefit analysis was something the agency carefully thought out. the best available technology could of been so good that you cannot have put more water back into the stream. the opinion says, no, the agency can decide what is the best technology reasonable. in the case with the whales pickle the submarine, there has to be some deference to the judgment -- whales versus the submarine, there has to be some deference to the judgment. there was a speculative argument about injury to the whales. in the gold mining case, both the epa and the army corps of engineers had been working for years to determine who would

have which permitting authority under which circumstances, whether it was billfill. they worked out an agreement where both agencies would work together. the court finally decided that we are not going to substitute our judgment for what the agencies have done with respect to the allocations and the responsibility of the clean water act. >> thank you. what should we say about the first amendment during this term? >> the first amendment -- an interesting case has still to be decided. on monday, justice roberts made the other first amendment cases less exciting. in both cases, the case about

union regulation and the case about the monument in the park, the court did not change the law very substantially as evidenced by the unanimous results an almost unanimous opinions in both cases. i thought i would focus on the most exciting case where i do expect there could be some substantial change in the law. that is the citizens united case which is the case of belabout am that was shown that was not barry favorable to secretary state clinton. it was not favorable and said nothing favorable about her during the film.

what is new about this is tim piatt -- campaign finance as often focused on commercials on tv. this is a more traditional medium than a film. and yet, the sec tried to regulate this film because it was. to be out 60 days before an election. -- it was going to be out 60 days before an election. the mcconnell decision with the court upheld that against a challenge in singing the government could ban electioneering communication by a corporation including nonprofit corporations 60 days before an election.

subsequently, after justice alito replaces justice o'connor, succeeds end justice roberts writes for the court says something that should be considered is alleging communication unless it can be interpreted in any other way as an attempt to get you to vote for or against a candidate. that sets the stage for this oral argument. the question is how was the court going to deal with this? i think there are three possible routes that could come out of the oral argument. one is the simplest route which is making no law at all saying this does not turn out to be an election year in terms of communication. the constitution cannot protect something unless it is a direct equivalent of an attempt to get

you to vote for or against some 160 days before an election. i am not sure how plausible that is given that the film is not favorable for secretary clinton. i think the court might try to expand the -- suggesting that movies have a different standard. this is about listeners. they have to purchase a movie. the constitution protects that as sacrosanct and that mccain camp cannot reach this. but for those that want to regulate campaign finance will just have more movies like the hillary clinton movie.

i think it is possible that this case could be used as a vehicle for overturning the mcconnell decision. what we talk about, just as alito, it is important to understand from justice o'connor. he seems to be less sympathetic to can pipe -- campaign finance restrictions than justice o'connor. that is the context in which we might see a decision reversing it. another issue that came out of the oral argument is that the justices became very uncomfortable when they realized that the theories of the mccormick -- mcconnell case will allow the government to prevent books and films from coming up 60 days before an election if they were considered to be an election communication.

this seemed to be extremely troubling to the court. what would be more corp. first amendment speech than a book about a candidate right before an election? i think that underscores what i think is the first commitment doctrine. it is pushed in many ways and yet narrowed. i expect the court to allow films like hillary to flourish. we can look forward to a lot more of them in 2012. >> there is one more case that we have to talk about. we do not want to go by without doing this. this is dealing with a coal company. we are in west virginia as we speak.