open, fact based way. >> the first quarter of 2010, what other agenda items might we see? >> we touched on a series of issues that are very important to us, promoting universal broadband,go spectrum, protecting and empowering consumers, helping bring our first responders and public safety into the 21st century. that will keep us going through the first quarter of 2010 and beyond. >> julius genachowski is the chairman of the federal communications commission. next week, the new republican commissioner. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2009] >> the senate is a rare weekend session today to debate health care with a procedural vote coming up later on, moving the

health care bill to the floor. . . [captions copyright national cable satellite corp. 2009] [captioning performed by national captioning institute]

>> this is c-span's [applause] ." -- this is c-span's "america & the courts." next, a case on gun rights and an appeal by a former enron executive. the smithsonian institute hosted this discussion earlier this month in washington, d.c. >> we will turn first to the case that was argued this past october, just argued this past november. then we will talk about some cases coming up in a few months. the want to start with the october case and talk about the citizens united case. >> this case came on september 9 for a special session, very rare.

it is citizens united. it started back in 2008 with a film, it was a movie, and then this group wanted to show it as a video on demand, essentially anti-hillary clinton documentary, called hillary the movie, put out by citizens united in the 2008 primary when she was trying for the presidential nomination. the election commission said it is cannot offer this as video on demand right before the election because it is essentially a campaign ad. the best thing that they say is she looks good in a pant suit. it is an attack film, essentially, but it brings to the for the political issues. it was a special three judge

panel and it went before the supreme court. it when the case was originally heard, the narrow issue was offering this movie through video on demand, does this violate federal election commission rules that say you cannot give an electioneering add it right before a primary or election. the panel said, yes. they appealed, and the supreme court hears this argument, comes back in june not with a ruling but a standing order that said we will reconsider this and not just look at this discreet question of video on demand but look more broadly over whether the federal election commission is right to limit corporate expenditure during an election. the issue was the citizens united had used some of their corporate money to finance this. this immediately makes it a much larger case and the justices say we are going to consider this.

as part of our previous term, so we will hear it in that september. idid issue is, again, doesn't violate the first amendment, the free-speech guarantee, to restrict corporate expenditures on candidates. the supreme court has long said that political money in a campaign is speech. it is a big first amendment question, and what is important beyond the flow of lots of money into the election in 2010 and 2012, corporate money, labor union money, but also the roberts board of this moment. it calls into play key precedents where the supreme court has allowed government restrictions on corporate money expenditures in elections, a 1990 case and 2003 case.

what we saw in the tension in the courtroom september 9 had to do with the election policy, campaign finance regulation, but also how does this current majority court regard precedent. you'll probably hear during the course of the afternoon and lot of how justice kennedy can be a swing vote, but in this case he is firmly in the first amendment crowd, not wanting to have tighter regulation of campaign money and elections. i think what we saw was a very strong sense like chief justice roberts, anthony kennedy, antonin scalia, which was to say, no more of these restrictions, that corporations should not have the kind of restrictions on how they put money into campaigns but individuals may not. this was limits on direct contributions to a candidate, but rather independent expenditures on behalf of a

candidate. the former solicitor general ted olson argued on behalf of the citizens united. it was interesting, back in 2003 when he was solicitor general, he actually defended this regulation, but here he was, challenging it. i think the justices would really like to have a ruling out. in fact, richard thought there was a chance we would be talking about the ruling rather than the set up of the case. they would like to have a ruling out by the end of this calendar year because whatever the justices say will really affect the campaigns from here on. how much money corporations put in the campaigns, labor unions, and as you can imagine, you have a lot of controversy between folks who say there should be limits, but free speech rains, let people put money in, and others from common cause, which

is now renamed -- anyway, they are saying, think of all the millions of money that could taint an election. one of the precedents at issue here from 1990, written by thurgood marshall for the majority, talked about the corrupt of a fact in corporate elections. it is one of the most closely watched cases of the term and i think the justices themselves would like to see a ruling sooner rather than later. >> the next case was actually argued in september, and that is the u.s. steel case. >> i actually did not argue with. we had a case that i will talk about first, briefly. the case was union pacific verses brotherhood of local engineers, and my partner argued

it. the reason i mention it is it really reflects the bread and butter of the core stock. it is not headline case, is about statutory case and it governs how the courts are allowed to preview or control decisions in the railway labor area. in this case, wind union workers have a dispute with their employer, such as union pacific, they go to arbitration and the board makes a decision, and then the question in the case was really, what are the grounds that the courts can use to review those decisions and when can they be set aside? it sets up really a question of statutory interpretation, the statute set forth ground for review, the court of appeals decided to imply additional grounds. it will never make the headlines, but this is the kind

of the speed that this -- this is the kind of dispute that the supreme court decides on a regular basis because they disagree on how to interpret the federal statute in governing an important part of federally- regulated labor-rail relations. without trying to predict the outcome of the case, the justices were very engaged. the newest justice was particularly active and that was interesting to see. that is the kind of case that people did not necessarily follow, but it is a lot of what the court has to do, resolve conflicts among the courts of appeal. the stevens case is definitely a headline case. this is another kind of case that the course has to free to -- that the court has to review, and that is that congress has adapted a statute that criminalize the videos depicting certain kinds of torture and cruelty to animals. the search -- the third circuit

held it unconstitutional, that it violated the first amendment, and the court often steps in to review decisions when they find the federal statute unconstitutional. my firm filed a brief on behalf of the humane society in this case, but another very interesting case, the background of this statute, and everybody likes to talk about the importance of protecting free speech, but it is a great example of how there are so many conflicting interests that are regulated in our society. but there is a broad consensus that preventing cruelty to animals is a very important societal norm and one that is right up there with the freedom of speech. what the statute was actually directed at, giving you background, there were what were called crush of videos being

sold through the united states, where they would have women in high heels stamping cadence to death, stamping bodies to death -- stamping kittens to death, stamping bunnies to death, and you would hear the screams of the animals. at challenged in the context of a dogfighting video, which is also very brittle. not as brutal and depraved as the stamping of kittens, but nonetheless still very brittle and depraved. -- still very brittle and depraved. the defendant in the case said i am a documentary filmmaker, but the dogs had actually been trained and bred in the united states for the purpose of dogfighting, sent to japan. in japan, dogfighting is legal. it was taped there and then sold and traffic in the united

states. it is a legal to hold or attend dogfights in virtually every state. the question is, is this the kind of speech that the first amendment protects or not? a difficult issue, and the court really struggled with it. the couple of the hypothetical they offered, and it tells you something how the court works. justice scalea was asking questions about, well, filming bullfights and spain, couldn't that be the kind of something that would be viewed as cruelty to animals, yet it is a time- honored tradition in spain and there could be artistic value, is that the sort of thing people should have to risk prosecution for? but then justice alito asked a hypothetical about what is -- what if a human sacrifice is legal in some countries and we have a human sacrifice program channel? is that something we prohibit?

people laughed but the issue is the same. one of the arguments in the case was obscenity should not be extended, obscenity is not the same level of protection as political speech. it has been limited, really, to sexual material, the department in this case is, wait a minute, obscenity has a much broader meeting and it extends to efforts to appeal to depraved interests, so be interesting to see how the court and of resolving this. >> david, the case you argued, the salazar case? >> it is part of the continuing exploration of the courts, dealing with the schisms in society about religious symbols on public land. in this case, a cross had been

erected on of land, a memorial place for veterans of foreign wars, and this had been part of public land. when a dispute arose about this be on federal land, congress arranged to make a partial swapped with the veterans of foreign wars so that the parcel of land would belong to the vfw and the united states would get an adjoining parcel, a nearby parcel that did not have disassembled on it. it was challenging the ability and constitutionality of this cross. the interesting question that everybody is curious about after the 10 commandments cases 20 years ago, the extent to which samples of a particular denomination can be. -- can be permitted on public land and what are the implications of that?

it is kind of a peculiar, the fact that arose. i think it will end up on a document, and that is whether you are the right person to be able to bring a challenge in the circumstances, and the argument ended up devolving into whether the particular group challenging the cross and where it was located had the constitutional aliment of standing in order to bring this particular challenge. -- had the constitutional establishment of standing in order to bring this particular challenge. the most interesting religious aspect of the case may not actually end up being decided by the case. the case that our target was blessed be the leadoff case of the term -- the case that i argued was supposed to be the leadoff case of the term. my son told me i should talk about this early in the program,

before everybody falls asleep. [laughter] it is a boundary dispute case between south carolina and north carolina. it has water has become increasingly scarce, due to global warming or other circumstances, water east of the mississippi is becoming more scarce. this case, at its root, is about a river that starts in north carolina, flows into south carolina, and south carolina alleges that north carolina is taking out more than its fair share of the river. this has obvious implications for growth in charlotte and the development of south carolina, which is dependent on water for industrial development, agriculture, and housing needs. as the case involved and is now in the supreme court, the

question involves a very obscure aspect of the court's original jurisdiction. the way that the constitution was framed, the constitutional convention wanted to make sure that disputes between states would be decided by the supreme court. in article 3 of the constitution is a provision that says when a state shall suit another state, the supreme court has jurisdiction over that to speak. origin of their station, meaning bring the suits -- original jurisdiction, meaning bringing the suit and deciding that the initial level. most of the case, virtually all the cases the court decides art in what is known as appellate jurisdiction. this is a case where the complaint is filed in the supreme court, and the supreme court to appoint a special master to advise the court on what ought to happen with the case.

what happened in this particular motion was the special master recommended that three non state entities be allowed to participate in the lawsuit as parties. south carolina, which is my client, objected to that because they want the dispute done at the state level rather than having power, co., a city joint venture participate and that the parties take discovery and all of the other accouterments that come with party status. we were in the supreme court on the first monday of october on a procedural motion, if you will, and would have been on the first monday of october but for the fact that we had a terrible series of incidents is happen to the councils in the case. four days before the argument, the mother of one of the arguing counsel died. the weekend before the argument, the father of a lawyer

in the solicitor general's office had a terrible incident involving surgery and was thought to be about to die. and the lawyer immediately went to san francisco. the day before, 12 hours before, 18 hours before the argument, i get a call and a lawyer who was going to represent the solicitors -- the solicitor general's office is 3,000 miles away and cannot get back. what can we do? the court very graciously agreed to postpone the argument so that these family issues could be dealt with and the council could be ready to argue the case. i have asked around to the people who have been involved with the court in a long time, and nobody could think of an instance where the court had rescheduled an argument that close to the argument itself. i think we were all appreciative

of the courts compassion to the arguing counsel who had to argue. it is stressful enough when you have to argue, but we have a family member who has passed or is grievously ill and have to contend with that, it is particularly stressful. >> if you watch the argument in the south carolina case, here's a case that involves the grand issue of constitutional law. the justices are no less engaged. they're completely into the case, they have read everything, they are all over the advocates. they are lawyers. they're very good lawyers. they asked really good questions and they take these issues seriously. one to november. in november, a couple of cases. one was involving the constitutionality of the eighth

amendment of sentencing a juvenile to life without parole. >> for any of you who are in washington in 1996, that was the last time i remember the court press on in a case. that was a terrible snowstorm. actually, chief justice rehnquist, a wisconsin native, did not want to cancel any thing. he actually did not cancel court, but some of the council was not able to get in. >> i've argued that day. >> you were there, and he was probably happy. >> the whole federal government was closed. everything was closed. fortunately, i was staying in a hotel on capitol hill, so was able to walk and get there. >> was very hard for the justices to get there. it is very unusual for it court to postpone any thing.

the other matter that david was talking about, the church-state argument, they really were much more procedural, having to do with is a right to have this cross on a federal parcel of land in the mojave desert? it was much more procedural. also a procedural issue related to remedy that congress had tried to assert into the middle of this dispute, saying we will get rid of this parcel of land. for advocates, they get into all of these procedural issues and love it. for me as a writer, it is hard to say, sorry we get you excited about that, it will wash out. >> you reminded me of the citizens united case. not only did ted olson argued in that case to overrule the case which he had won, but you also had a lanham cake and, the new

solicitor general argue the first case -- you had elena kagan argue in that case. there was an amazing lineup of >> > > -- there was an amazing lineup of advocates. >> she was the dean of harvard law school but was relatively new to the solicitor general job, but you would not have known it. she was very comfortable with those nine justices. act one that we have read this week, which you have probably heard about, which involves two men from florida or juveniles when they committed their crimes. he was 13 when he raped an elderly woman, the other was 16

when he first committed armed robbery and then broke probation and was involved in an armed home invasion, 16 and 17 for those crimes. both of them got life without parole. many of you may not have known that juvenile could be sentenced to life without parole. even though the majority of states allow it, there are only a handful of states that have walked away without parole for crimes committed under 18. i think there are only about 110 defendants in that situation, and 77 of them are in florida. florida has harsh laws in this area. the question was, does the age amendment prohibition on cruel and unusual punishment bar states where the federal government from locking up somebody without the possibility of parole? this challenge to get say it ruins all hope. that tells a young person that

for this adolescent mistake, their word, this adolescent offense, you are no longer fit to be part of society. the ruling that they are using to bring the challenge is 820051 from the supreme court in which the justices said -- is today 2005 one from the supreme court which said it is illegal to execute a juvenile for a crime committed. the talk about the age of maggiore has been set for many things at age 18, -- the age of majority has been set for many things, but have these competing theories of showed juveniles be treated in a special way even in noncapital cases, life without parole, or is that cutting slack to the juvenile and it only matters and death cases? it was interesting, because this is one where justice kennedy was

likely to play a key role. justice kennedy, a conservative who tends to be more of a centrist, wrote the majority opinion in the 2005 case and said we're not going to allow states to execute someone who commits a murder. in these cases, we're talking about non homicide offenses. if you have a juvenile that commits a murder, he could be locked up without parole. both sides agree with that on monday, but it has to be non homicide. chief justice roberts raised an interesting compromise, the idea of less not have a categorical rule that bans sentencing somebody to life without parole, but let's ensure that ages factored into any kind of sentence in a proportional way to fit the crime. it was tough to read, tough to see where the consensus might be. the think what might help the challengers in this case thais t

it will not affect a lot of defendants. the court is very mindful of issuing a rule that will flood the courts with appeals or change policies and the state's. in this case, just a little over 100 people serving these kinds of sentences. >> the next case which we will talk about, not like the florida cases, a case you would not have we heard of, but it is similar to more. >> it was about what you can get a patent on, and it shows what the instrument for role the supreme court can play in the nation's economy. the issue of whether this involves a method that is designed to reduce risk, to hedge transactions in the

virtual sale of commodities, what is called a business method patent. the federal circuit found this was not properly subject to a patent. how you define what is patented and what cannot be patented has huge implications for our economy. if you define them too broadly, you stifle competition. if i have a patent on something, i have an exclusive right to do that process or make that machine and i can license others to do it, but you cannot recreate it and do-it-yourself. on the other hand, if you did not give enough breatadth, you discourage innovation. companies spend years and years and millions of dollars trying to invent new things in the hope that they will have the opportunity to be the sole maker for a long time. the court recognizes how critically important this is,

and i think in this case there was a lot of skepticism about whether this particular business math that -- this is this method could really be subject to the palace walls. i think the hardest part of the case is, what is the test? how do you define what is sufficiently innovative to be a patent or not? the statute says any new and useful process or machine. but if you really took that literally, it would extend to a lot of things that people would say, well, anybody could a figure that out. the hardest challenge in the case is trying to figure out what the standard ought to be. the court may not actually tackle coming up with a broad standard. they may ask to simply resolve the case before them. it is always hard to predict. if you were there, you may have some sense of what they might

do, i don't know, but sometimes they will decide cases very narrowly because they want to be sure they do not mess up what else is going on in the economy. for instance, medical diagnostics is one area where there's an awful lot of passions involving prophesies that a critical -- there's an awful lot of patents involve processes that are critical. it is not tackle the big issue of the case which is what the standard ought to be. >> i think there were 70 briefs. >> 70, which is extraordinarily high. in the michigan case, there were over 100, which was the highest in history, but 70 is getting close to that mark. >> the patent case was argued the same day as the florida case. it was argued at 1:00. the florida juvenile life case

was argued at 10:00. my understanding is that the line at the supreme court for the patent case at 9:00 was moderate than the supreme court line for the juvenile sentencing case -- was laundered the the supreme court line for the juvenile sentencing case. it affects so many companies. >> billions of dollars. the nation had a very industrial economy, and that has changed so much. it is really critical. but they know it. >> david will talk about a case which he argued one week ago, this past monday, a very big case that is sort of related to the headlines. >> i think there are some flaws

in the argument. [laughter] >> how many of you own retail mutual funds for savings and investment? that is what this case was about. i will try to work the crowd, get them on my side. >> i will not have a rebuttal. >> they alleged that the investment advisers in mutual funds had overcharged them for fees. it was a statute enacted in 1970's that said the adviser had have fiduciary duty with respect to compensation that it charges to the fund. any mutual-fund which have an investment in and you are a shareholder of the company, the investment adviser who created the mutual-fund handpicks the members of the board that it improves its pay. what happened in our case was

that the investment adviser was charging twice as much in percentage terms, 70, 80 times as much in real dollar terms to mutual-fund investors as it was charging for exactly the same services to institutional investors like the state teacher pension fund. it was tracking the investments, the same research, same analysis, same stocks, just allocating them to different accounts, but charging the people to whom had fiduciary duty twice as much. the investors brought this suit to recapture the excess compensation paid to the adviser for the benefit of all of this. the district court had dismissed the case on summary judgment. that had gone up to the second circuit, the appellate case in

chicago, and we had a fascinating development. one of the conservative stars of the federal appellate bench ruled in favor of the investment adviser and against the investors who said economics did predict economic circumstances have changed since the 1970's, there are 8000 mutual funds. anybody who wants to change in the one that charges less money. when the case went for rehearing, which is when a losing party asks for the entire appellate court to review the decision of the panel, the judge who was another famous conservative judge disagreed with the other judge. the seventh circuit ended up splitting 5-5, with one judge recused. they reaffirmed by an equally divided vote. we get retained to bring the

case to the supreme court and the court grants tertiary and it was argued just last week. a very interesting set of circumstances, over how much does a changing economic circumstances affect how you interpret a statute that was designed for a particular purpose, what does fiduciary duty mean in the circumstances, what is the obligation that the adviser owes when the advisor has created the fund. you have this explosive growth in the size of mutual fund assets were the adviser is charging a percentage of assets under management, but there are economies of scale. that are not being passed on in terms of savings to the investors. the case is one that could end up being very narrow if the court decides it based on -- are case, we had an adviser there

really ever reached in terms of compensation, extracting out of the fund. it is because 90 million americans invest in mutual funds, 10 trillion dollars in spanish by mutual-fund, and i think the way the court goes about the sot -- 10 trillion dollars is invested in mutual funds and i think the with the court goes about deciding it could affect a lot of us. >> it is quite apparent that the justices were struggling with this and many were concerned about and fighting a judicial role of judges trying to decide what the right set of fees should be, some of them saying that the marketplace is better, maybe have the sec involved. that the market cannot supply the necessary oversight and court needed to step in. >> this is a case where what the standard is is probably more

important than the outcome, because if the court were to decide for instance that the statute means that the judiciary has to determine whether or not the fees are essentially reasonable for every mutual fund, there are thousands of them and investors could go to court and say i do not think it is reasonable and to have litigation over the reasonableness of the fees. historically, when you have an independent board of directors, which is what congress requires to produce mutual funds, when they make a decision with full information, the court ordinarily is deferential to those decisions. that is the backdrop. that is why the judge came out the way he did. he said, wait, if the independent board was not upset about what was being charged and why and all of those things, then that is the process that has been set up. it is interesting what the

standard is they may come up with. >> it was an interesting oral argument or the chief referred to any person can look at morning start online and get a sense of different prices -- anybody can look at morningstar on-line and a sense of different prices. it was interesting. >> i have a fiduciary duty to my clients, but i tell them how much i will charge and a consent, the court does not come behind me and review whether this was reasonable or not. but if the client understood and decided, hey, that is one of the issues. you'll have rebuttal. >> i will let him do the wrong bottle and then we will move on. -- i will let him do it the rebuttal, and will move on. >> the problem is every year the adviser with his hand-picked board decides with his compensation will be, and if the

assets under management grew from $1 billion to $10 billion, your feet and real terms has increased 10 times, even though the percentage stays the same. the problem congress for trying to dress was to deal with that economies of scale problem that was not being passed on to regular investors, to give them the benefit of that growth in assets under management. rather than write a statute that says judges have to defer to the board, they wrote the opposite and said the court's approval shall only be given in such a way. >> not that clearly. >> joan, you were going to talk about different cases. >> this is what you hear in

court. one lawyer gets up and says something, that makes sense. the next lawyer gets up and says something opposite, that makes sense, too. the final cases i will refer to are ones that have not yet been scheduled. they're both part of the larger looke at the legal war on terro. the supreme court has a series of cases brought by the bush administration, now the first from the obama administration, that tests the role that federal judges play with detainees, mostly who are now being housed at guantanamo bay naval base, which is in cuba, but obviously part of u.s. jurisdiction. as we have gone along, the supreme court has found a role for judges in these disputes and has essentially rejected a lot

of the bush administration arguments. most recently, in 2008, the supreme court ruled 5-4 at guantanamo detainees could question the constitutionality of their cases. the new one that is now up, it will test the potency of that 2008 ruling in the context of, a federal judges can say we would hear the case and we think we have a remedy, what can they do? in this case the question is, can federal judge's order the administration to free a detainee into the net states? this case involves the main one that i will talk about, 13 chinese uighurs who are moslems who were picked up after september 11, and afghanistan. they had fled persecution in their home country and were living in the mountains of afghanistan, picked up after

u.s. forces went in there after 9/11, and were turned over to the military and transferred to guantanamo. initially, there were declared enemy combatants. once their plight was known, that status was removed, then the question was, what do you do with these men? what happened was there not like others who can just go back to their home country because they fear persecution in china. for many years, the bush administration was trying to relocate these people, and now the obama administration is trying to relocate them, and a legal question is, if they're being held without charges, if they're not a threat, they are not in danger, but a trial judge has said they should be released into the united states, the court of appeals for the district of columbia said, no, he cannot order the

administration to free them in the u.s.. the obama administration is taking a page from bush administration and saying, no, we do not want them here, and have encouraged the supreme court not to intervene. they said there are only 13 left of these people who fear persecution, and we are making headway trying to find homes for them. the supreme court rejected the obama administration's advice and said we will hear the case anyway. that will be scheduled to the weeks to come. even though it will not really affect so much of what is going on in guantanamo, it goes to the power between the executive branch and the judicial branch over who will say and under what circumstances foreign detainees can be freed, foreign detainees who are no longer being held as enemy combatants. the second case which is related to that, which i will refer to

my notes, a statutory participation case, and has to do with a challenge to a federal law intended to prevent international terrorist groups from raising money in the u.s. the statute itself is what is at issue. as part of the 2001 patriot act, the question is whether this group violated the material support provision that says -- that defines a violation for any service, training, or expert advice or assistance to a designated foreign terrorist organization. this is a case brought by a colleague of richard's at georgetown university, who is representing the humanitarian law private space, and they wanted to give money and support

for lawful activities of kurdistan workers party and the liberation of -- gosh. >> i don't know. >> sorry. the secretary of state had designated these organizations as terrorist organizations, and that is not at issue. it is whether it is before the court. both sides appealed because the ninth circuit read part of lot to say -- read part of the law to say this had not violated part of the provision in terms of providing services and training, but it said it had potentially violation in terms of the expert advice or assistance. this is one where the will be a lot of parsing of language, but it goes to what the solicitor general is arguing, which is the way to shut down these groups is shut down the money.

even if these humanitarian groups are saying they are doing it for non terrorist reasons, their suspect, labeled as terrorist organizations, and any money to them could get caught up in terrorist activities. this is another one that has yet to be scheduled and will be heard this calendar year. >> i think three cases, white- collar crime cases, involving honest services, deprivation of honest services. one of the cases which the court just granted, which surprised people, goes back to and ron and jeff scanner. -- is back to and roenron. >> there has been a growing concern, the statute has been on the book 20 years, growing concern about what that means, and doesn't give corporate

executives were the target -- does it give corporate executives at a target. this will reminds me of auditors to enron, who were convicted of obstructing justice, but the statute is always called a witness tampering statute, and it was a crime to basically unlawfully persuade someone to engage in various activities. the court ultimately overturned the conviction, the statute had been read it too broadly. this statute has a similar feel in that you did not really know what it is you are doing wrong, you do not necessarily know, and justice scalia recently wrote an opinion saying that his concern was that it was, in effect, almost an effort to create a common law criminal unethical

conduct, which means you would not really know in advance what conduct violated the laws and what did not . this year they have taken three cases involving this statute and how to properly interpret it. i cannot think of anything similar in terms of criminal law or have donned a trio of cases where they are hearing arguments. -- or they have taken a trio of cases where there hearing arguments. this one that was just granted involving jeff scalings, who was with enron and really became to be a hated figure because when they collapsed, the city suffered enormously, thousands of jobs were lost. so the case has two issues, dishonest service and the venue. on services, his argument is

that there really should have and an instruction to the jury that he had to have some kind of intention to profit from this. in other words, if he was just acting in the best interest of the company, he cannot have engaged in a crime. after all, if he was trying to help enron and not himself personally, how was that criminal activity? the court of appeal was divided on that and that was a key issue that the court will resolve this year. the court has not weighed in at venue. venue is the question of where a criminal is tried. skillings said you cannot try me and the city of houston because they have been. so terribly by the collapse of enron and the press has vilified

me for years. the brief cited things like a houston chronicle article or column that said, the title was "your tar and feathers ready? mine are." polls indicated that 60% of those polled before the trial thought he was guilty. one of the questions is, can you get a fair trial any jurisdiction like that? the fifth circuit held there should be a presumption that the jurors would be prejudiced but that it had been overcome in that case because jurors were asked whether they could fairly decide the case and they said yes. and they said a few other things, but the supreme court has not resolved one of these issues since the 1960's, so this

will be very interesting to watch, for both the honest services and the venue issue, and certainly an issue that corporations care about greatly. >> within the court it was interesting because just last term, the court had denied cert on the case and justice scalea took the conditional step of filing. normally when they deny cert they just say it is tonight and are no opinions written. if the justices really unhappy about it and want to send a message today to convince the other justices in the case and send a message to the lawyers that at least i am interested in it, he did that. he filed a dissent for that case, and not long after the court started getting more. >> they got three of them. the descent was very powerful, not only to be referred to this criminal, all of unethical behavior, but also talked about this is the kind of statute that

prosecutors around country used to get headlines. they go after high-profile defendants when they did not have something more concrete. i do not know how he will decide the cases, but he was very skeptical about the ways in which this statute has been used the last 20 years >. >> the reason it was interesting they took this case is the court had already taken two years ago, and the normal course was not to grant the third one. there would hold a petition and the third, decide the ones that were argued earlier, and then after they decide those, then remand the other one back to the lower court for reconsideration. the fact that the court actually took the step of taking the third one, even though it is off schedule of the others, shows real interest in the issue and

may be an interest in the venue issue. >> that is possible, although each of the cases are related, but each present a separate question about what honest services should mean. it may be a signal that we will get this tied up once and for all and not just let prosecutors go into it next year. >> dave it will talk about anything he wants to talk about, but also a city of chicago case in particular. >> i start with a caveat. i am doing this in front of a constitutional law professor, and for me, this case for a general audience, is one that requires a little bit of background to understand why are we here in the year 2009-2010, addressing some of the issues that will be addressed in this case. the question presented in the case is whether the second

amendment, which the supreme court decided two terms ago in th eheller case applies to a person's right to bear arms in the face of a contrary city ordinance that requires certain restriction. the question for most is, why not? what is the big deal? well, it goes back to the way the constitution is framed and how the first 10 amendments, the bill of rights, came into the constitution through the amendment process after the structural part of the constitution had been enacted. over the course of the 19th century, there were disputes that flared up from time to time about whether the bill of rights applied to actions by state and local governments, with the court generally saying, no, they do not because the bill of

rights only applies to actions that congress or the federal government take. in the 20th-century, the view became that there were certain state actions that were so violating of fundamental rights that the bill of rights provision that was at issue should be deemed to have been incorporated through the 14th amendment to the constitution, which guarantees that states shall not violate the equal protection of process rights of citizens. so what you had was kind of an historical anomaly and uncertainty about how these fundamental rights would apply with the state does something vs one the federal government does something, and the supreme court in a series of decisions that were predominantly through the

warren court before and after as well adopt it -- adopted a view called selective incorporation. that meant that certain rights like the fourth amendment, which protect unreasonable search and seizure, it is deemed to have been incorporated through the 14th amendment, protection of the right to due process without deprivation of life, liberty, and property. now, the second amendment had been floating along, and the court has not addressed the questions specifically as to whether the second amendment is inc. against state action. after i guess the last inc decision was 30, 40 years ago, we are now addressing the fascinating question of constitutional law, which is whether or not the second

amendment should be protecting the rights of persons in the face of state action or local city ordinance action. and the question is really one that involves a long history of how we treat certain rights as fundamental rights, certain rights as rights that are so important that when the post civil war country adopted the 14th amendment, those rights should be deemed to apply also against the states. for an average citizen who does not really understand, who has not taken law, constitutional law, i can appreciate if what i have said in the last couple minutes is completely baffling, but the fundamental notion is that the constitution is a constitution that confers limited powers on the

government, those powers are enumerated, that there are rights that are protected through the bill of rights to us as citizens, but that the principal concern in the bill of rights was to protect against the federal government encroachment against those rights, and it was only really in the post civil war era that the focus came on to state actions as they would affect individual rights. so we are here, more than two centuries after the constitution was ratified, addressing a fascinating question of whether or not a city can impose rules that would encroach on a person's right to bear arms. the court just announced several years ago in the second amendment case. >> the extra twist is when they decided the case a couple of years ago with heller, where the court ruled that it included individual right, they did not have to reach this issue because it