has taken a quite patient approach so that in areas where the conservatives take the view in the warren court area and a subsequent era, there really overstepped the judicial role. it is much more patients and how it is overruling decisions. a couple of examples from this term, we had the big case about the voting rights act which was civil -- which was celebrated as rejecting the constitutional voting rights act. it is page after page of why section 5 is probably unconstitutional. i think that decision if congress does not amend the voting rights act will later be cited as precedent for the fact that eight members of the court recognize that there are real problems with the voting rights act. there is a term about the exclusion area role that says if the police violate your rights in an illegal search or seizure, the evidence will be used

against you in court. that opinion has a lot of language and in suggesting that there should be a good brought faith exception when the police make an innocent mistake. you can go through case after case after case that doesn't seem to change the law that much. it doesn't change the law all except in respect dealing -- bailing out the civil voting rights act. in area after area, the court is laying down decisions that will later result in significant changes of the law. he later changes won't look as dramatic, because they will point the case after case after case that decided steps along the trail. the court this term did not decide the citizens united case about hillary, the movie. it was not very complimentary.

it was revealing to me to put find out that she was, in fact, the antichrist. it wanted to distributed and to ask for it and run up to an electoral cycle. the question is, should we treat that as a campaign advertisement? we usually think of films as getting full first amendment protection. and so, i think that the court will decide the case from a couple of terms ago where john roberts very nearly decided to campaign finance question and set the table for more aggressive steps. there are about five or six highly charged ideological questions where the court will continue the move to the right. why do i call it the jurisprudence of actuarialism?

the court can be quite patient on when it is moving the law because it will be unlikely that they can give it the court's position to the left. justice souter was replaced by sotomayor. the next judge is still doing great, but in the next couple of years, he is likely to retire. after that, justice ginsburg is committed to staying on the court, but it is likely that if barack obama were to get a second term, he would replace. eight years from now, you have absent some unfortunate turn of health, the prospect of justice kennedy who is 73 or justice scalia who is about to turn 73 are within a few months of each other.

the court is not going to change for eight years ideologically on the left, and the chief justice can afford to be quite patient in laying down these markers and is changing the law over the course of eight years without having to radically do anything because they will get there eventually. i think you'll continue to see substantial changes. the two cases i wanted to mention our procedural ones. the one that will be decided a thousand times in the next six months is a lot. the reason i want to highlight two cases -- they were unexpected. the case is a pleading case which is kind of dull and dry, but assess the rules for what it is that you have to put in your complaint to start a lawsuit in

court. the case has significantly raised the bar. these to be a case that i could write a complaint that said these folks violated the antitrust laws and file it. because of like at a little more detail to that, it was plausible. walter is capable of anything, i could accuse him and people would say, that is probably true. the supreme court has become increasingly frustrated with changing policy and of the burdens of litigation through lawsuits that the level of detail that has to be put in a complaint has been ratcheted up. you have to show the court that it is much more likely that you're going to be kicked out of court at the outset. by the way, the reason it was so unexpected because it was a case about terrorism detainee's.

it has nothing to do with free enterprise. it was an allegation that attorney general ashcroft had participated in setting up a system for detaining people on the basis of their race and had proceeded to set up a system of detaining muslims. the supreme court said there is nothing in your allegation that suggests there really isn't to believe that this is done with the racial motivation. you need more proof before you can start your lawsuit. another case was about how it is you approve a particular age discrimination case. it is a mildly important area of the law. the supreme court instead decided much more profound question. lots of times in a civil rights lawsuit, you have a mixed motive case. yet there are motivated by my age, but also by other things. it is not so clear why somebody was fired, demoted, or didn't

get a raise. in a ruling that will also apply any disability context, the plaintiff has the burden of proof so that you can't shift the burden to the defendant by proving that age had something to do with it and make the defendant prove that we would have done the same thing if it were not for the plaintiff's age. we really thought there were a bad performer. instead, they said turning back the doctrine from a more liberal era of the supreme court that it is always the plaintiff but that has to be proving the case. those are cases that think will be significant or unexpected and will give them some greater assurance that they will not be subjected to pretty wide-ranging litigation. >> change in the lineup. thank you, tom. our cleanup hitter is no longer

our cleanup hitter. dan, i will pass off to you. >> thanks very much. i have been asked to talk about a subset of the core's business decisions from this term, those involving tele-communications, antitrust, and environmental law. by my count, there were a total of seven cases in those three areas. the seven cases collectively make up somewhere between a quarter and a third of the core's business docket for this last term. there was only one telecom decision, and even that was more of an administrative law decision that a telecom decision as such. i will say more about that in a few minutes. there was also one antitrust

decision. by the time that case was decided, everyone including the parties were in basic agreement on how the case was going to be decided. the only real question was whether not it was going to be decided. the court was far more active in the environmental areas. they decided five cases. only three of them were strictly speaking business cases, and i will talk about them a little bit more before i do that, i wanted to make a few general observations about these cases as a group. of the seven, five were from the ninth circuit and two were from the second circuit. in one of the second circuit decisions, the opinion was written by judge sotomayor. in all cases, the court of appeals was reversed.

that is not so unusual for the ninth circuit. historically, it is a little more unusual for the second circuit. this term was not a particularly good term for the second circuit that the court either. although the judgment below has reversed all seven of the cases, the court was fairly closely divided. four of them were decided by a 5-4 vote. tommy mentioned that in some of the cases, you had some unusual lineups. for example, and the last week, you had to business cases which were decided 5-4 against the business, and the five were the four liberals. added two cases, thomas and scalia wrote the majority. there were no such unusual

lineups in seven cases i am talking about. the five were the five you would expect and the for the four you would expect. in the other case, the united states -- the party supported one. the united states was six and one in antitrust environmental cases which is a high success rate, even for the united states which enjoys more success in the supreme court than any other litigant. the business parties had a record of 3, 1, and one. the one at the end reflects that u.s. businesses on both sides, one of them the defendant' 1s --

at the defendant's 1 and the plaintiffs lost. if you take the view that a loss is a win for business, even though there was no business party in the case, you could say that businesses were 5-1-1. and if you take the view that any antitrust case business generally was aligned with the defendant in the case, you to take the view that businesses were 6-1 this term. however you do the arithmetic, it is fair to say that businesses did pretty well this past term in the three areas i am talking about. let me make one more observation. as most of you know, the supreme court rarely takes cases to engage in what is called error correction. there is not enough room on the docket to do that.

it is not the way the court sees its role. the court is concerned with ensuring that federal law is applied uniformly in the lower courts, not in ensuring that is applied correctly, much less that any particular case, several legal principles are applied correctly to a unique set of facts. and yet in three of the seven cases i'm talking about, i think it is fair to say that the case ultimately involved not a whole lot more than the fact of settled law. that is an unusually high proportion. on the other hand, and by way of possible explanation for this, in those three cases, it was the solicitor general representing the united states. the court more often than not will defer to the views of the solicitor general on what constitutes a suit were the case which accounts for the fact

that the petitions filed by the united states granted at a rate well above 50 percent sign -- 50%. if the solicitor general asked the court to take a case and represents the court that it is important to the government, even if it is really little more than a fact known case, there is a good chance that the court will take it, and that is essentially what happened in three of the cases i will talk about. with those preliminary observations, let me turn to the specific cases. this is the fcc against fox television. as i mentioned, this is really more of an administrative law case than a telecom case as such. this is the fleeting expletives case. it came from the second circuit, although this is not the case in which judge sotomayor was on the

panel. the main reason for its high- profile was the fact. it involves celebrities cursing on television which a lot of people find interesting. it was not a first amendment case, and it wasn't even really a telecom case. the issue is whether the fcc posy of holding the funds on fox -- to the fcc's holding fox -- the court held that it upheld the order. so the government one and the business lost. this is the only case in the three areas i am discussing where the business lost. this is also one of the three cases i mentioned that really doesn't involve a whole lot more than the application of settled law, but in case there

are any administrative law gurus out there, i should mention that on the way to upholding the fcc's order, the court managed to establish or confirm some principles of administrative law and most of them had to do with house searching arbor terry reviews his a deferential standard. the court made clear that it is deferential even when as in the fox case, the agency has changed its policy. even when the agency duplicates constitutional rights. and even in the fox case, the actions taken by so-called independent agencies as opposed to a purely executive branch agency, and a lot of the dispute between the majority and the dissent concerned those three obscure principles of administrative law.

the antitrust cases -- the issue in this case was a rather technical 1 on whether a plaintiff can bring a so-called price squeeze under the antitrust laws when the defendant has no antitrust duty to deal with a plaintiff their terms of art and antitrust jargon. this issue arises would have a vertically integrated firm that sells inputs at wholesale, a finished good or service at retail. if the firm raises the wholesale price and lowers the retail price, a competitor in the retail market that has to buy the inputs at the wholesale level will have to pay more for the inputs and it will have to lower its retail price in order to compete.

the competitor will have higher costs, lower prices, hence the term "price squeeze." really, the only suspense remained was whether the court would decide the case at all. there was no real suspense over what the result would be if it did decide the case. that is because, by the time of the merits briefing, the plaintiffs who had won in the non circuit essentially conceded that the theory on which that had prevailed was not a viable one. in light of the concession in arose whether the case should be dismissed as moot. the court decided that it should not be. to no one's surprise, it reversed the ninth circuit saying that a price squeeze -- it was a decision by chief justice roberts. it was 9-0.

they're joined by the more liberal justices that made the point that they would not rule out a price squeeze claim this was the one case where the united states was not a party. it supported the defendant's. the case was argued before inauguration day. it was the position of the antitrust division that was presented to the court. it will be interesting to see over the next four years or eight years or 12 or 16 or whatever it is going to be, what position the united states takes. in many areas of the law, criminal law must notably, but there are others, the positions of the solicitor general -- in most cases, it does not matter

whether it -- it does not matter whether there is a democrat or republican in the white house. there are significant areas where the position of the united states would vary depending on who was in the white house. antitrust is one of those areas. you can probably expect to see something starting next term. if there are any antitrust cases, i do not think there are any on the docket yet. you'd see the united states supporting the plaintiff or an antitrust case in which the united states itself is the plaintiff. whether that will make any difference to the with the court decides these cases is another matter. the first consists of two cases that were not strictly speaking

business cases because businesses weren't parties. these cases have the names of seasons. there's the winters case and the summers case. they were both cases where environmental groups sued to prevent a government from taking certain actions. in winter, it was naval training exercises in the ocean, and summers was the sale of timber in national park. in both cases, the court held that the plaintiffs could not obtain relief and reversed the decision to the contrary. in winter, the court held that the plaintiffs could not satisfy the standards for preliminary injunction. in somers, they ruled that the plaintiffs lacked standing to sue. it more lesson balls the application of settled law.

-- and more established principles. no businesses were parties to either case. so no businesses were direct beneficiaries of the decisions. businesses are likely to be in direct beneficiaries. environmental groups sometimes sue businesses directly. they often challenge government action as insufficiently restrictive of business activities of these decisions make it harder for environmental groups to obtain relief through the judicial process. other things being the same, i think that is a net plus for businesses. the second group of environmental cases have groups in which businesses were parties. two of these were entergy and core alaska where environmental

groups sued the government because they took positions that the government's actions were restrictive of business activities. entergy, they prevented cost- benefit analysis under statutory provision requiring the use of the best technology available for minimizing adverse environmental impact. and the alaska case, they challenged the permit that had been issued by the army corps of engineers for the discharge of waste material. in both cases, the court rejected the challenge. in entergy, they found that the interpretation of the statute was reasonable. in the alaska case, the epa's interpretation of its own regulations were reasonable. both were administrative law cases and environmental cases addressing the recurring

question of what level of deference courts should afford agency action. the lineup of the court was similar in both cases. you had the four most conservative justices and justice kennedy in the majority. you had the three most liberal justices dissented and had just as brier somewhere in the middle. now, because the court held in both cases only that the epa had reasonably interpreted the law, in one case the clean water act itself, and the other case the regulations issued under the clean water act, the administration could use the results in both cases simply by showing the regulations --

showing new regulations. congress could enact legislation as not constitutional case. the result could be changed by congress or by the agency. finally, i should mention that the entergy case, the cost- benefit case, is the case where judge sotomayor wrote this decision, and the decision was reversed. the last environmental case was the burlington northern case. unlike the to i just mentioned, the government and business were on opposite sides. burlington northern is the only one of the seven cases i am discussing in which the government lost. this was a case in which the government clean up hazardous sites and sought to recover costs from businesses, the cost

of the cleanup. the main issue was the proper test for what is known as a ranger liability. they can be liable when it arranged for the disposal of hazardous substances. the court adopted a fairly restrictive test for it liability requiring that the business take additional steps to dispose of the hazardous material. it found that the defendant in the case, shell oil co. was not a raneger under that standard. the business -- to the decision was 8-1. those are the seven cases in telecom, antitrust, environmental law. if you want a one sentence summary, i guess it is this. business and government were more often than not on the same side, and business and

government more often than not won. at least in these three areas of the law, there was an alignment of business, the executive branch of the federal government, and the court itself. thank you very much. >> thank you, dan. now our cleanup hitter, walter, if you would shan't -- if you would come up to the microphone and share your thoughts. >> let me begin with a general observation that this court continues to have as its central theme. a group of judges to really are impressed with judges and not very impressed with other governmental actors like legislators or executives. and that this confidence in the capacity of the judiciary to make its own decisions is rather extensive across the entire court.

this is not a preserve of any one branch of the court. it comes up in little ways. let me start with yesterday pose a decision about the national banking act. most americans haven't heard of section 484-8. is very close to the heart of anyone in banking, those of us that work and one-fourth of banks that are chartered by the federal government. section 484 traces its lineage back to the civil war, and gives exclusive visit to real -- visitoria powerl is over the comptroller of the currency. -- povisitorial powers over the comptroller of the currency. they're free from the hamstringing effects of being regulated by 50 different

jurisdictions. it was certainly hamiltonian in vision at the outset that there needed to be a national bank so that the country's business of banking, given the fluid deal of money, which uniquely seen as something that lends itself to a national rather than separate state regulation. john marshall, of course. he wrote eloquently of the reasons why congress might find the creation of a national bank essential to the welfare of the country to whom it had been entrusted. when the national bank last, -- congress thought it essential to have a system of national banking. it has been thought