Case at a Glance

The desirability of privatizing prisons is a hotly debated topic in modern penology. Under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, persons acting under color of federal law may be sued for damages for violating the civil rights of a federal prisoner. In this case, the Supreme Court is asked to decide if a private corporation that operates a correctional facility under contract with the U.S. Bureau of Prisons may be similarly liable under Bivens.

• Previewed by Stanley E. Adelman, an attorney, criminal justice trainer and consultant, and professor of law at the University of Tulsa and University of Arkansas law schools.

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Case at a Glance

ERISA § 502(a)(3) authorizes actions to enjoin any act or practice that violates the terms of a plan “or to obtain other appropriate equitable relief” to redress such violations or to enforce any provisions of the terms of plan. Without clear precedent on point, this case affords the Supreme Court its first opportunity to determine whether efforts to enforce the terms of a plan member’s obligation to repay benefits paid by the health plan squares with the meaning of ERISA §502(a)(3).

• Previewed by Elliott B. Pollack, a member of the adjunct faculty of the University of Connecticut School of Law and co-chair of the Health Care Section in the Hartford office of the Connecticut law firm Pullman & Comley.

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Case at a Glance

One section of the Indian Gaming Regulatory Act provides that some provisions of the federal tax code apply to tribal gaming operations in the same way they apply to state gaming operations. Unfortunately, specific clauses of the statute create confusion as to exactly which provisions apply. This case requires the Court to determine whether Section 2719(d)(1) of the act grants tribal gaming operations the same exemption from wagering excise and occupational taxes that similar state gaming operations enjoy.

• Previewed by Kevin J Worthen, a professor of law and associate dean at the J. Reuben Clark Law School, Brigham Young University in Provo, Utah.

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Case at a Glance

This case presents the question of whether the Federal Communications Commission has the authority to regulate pole attachments - both those used by cable systems that provide high-speed Internet access services over the same lines on which they provide traditional cable TV programming, and those used by wireless telecommunications services.

• Previewed by Jay E. Grenig, the co-author of West’s Federal Jury Practice and Instructions (5th edition), the author of West’s California Code Forms: Government Code, and a professor of law at Marquette University Law School in Milwaukee, Wis.

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Case at a Glance

Traditionally, state public utilities operated as monopolies and controlled the generation, transmission, and distribution of electrical energy. However, with advances in technology, other energy providers have sought to enter the market as well. In these circumstances, to what extent can the federal government assert jurisdiction over the transmission of electric energy? Several states assert that the Federal Energy Regulatory Commission has overstated its jurisdiction while a major wholesale energy provider argues that the commission has understated it.

• Previewed by David L. Hudson, an attorney with the First Amendment Center at Vanderbilt University in Nashville, Tenn., and a member of The Commercial Speech Digest editorial board.

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Case at a Glance

Federal law includes two specialized intellectual property statutes that call for the issuance of plant patents and plant-variety protection certificates. The patent office has also allowed plant breeders to obtain utility patents under the general patent statute. This case presents the Court with the question whether the availability of particularized legislation precludes application of the general patent law to plants.

• Previewed by John R. Thomas, a professor of law at George Washington University in Washington, D.C.

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Case at a Glance

Federal workers whose employment is regulated by the Civil Service Reform Act have the right to appeal certain adverse personnel decisions to the Merit Systems Protection Board. When reviewing an agency’s decision to discharge one of its employees, the Board will take the employee’s prior disciplinary record into account. At issue in this case is whether the Board can consider such prior discipline even if it is still being challenged in ongoing grievance proceedings.

• Previewed by Barbara J. Fick, an associate professor of law at Notre Dame Law School in Notre Dame, Ind.

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Case at a Glance

The Fair Credit Reporting Act provides that an action to enforce liability for a violation must be brought within two years from the date on which “liability arises.” In this case, the Court must decide whether “liability arises” upon the “occurrence” of the violation or upon the debtor’s “discovery” of the violation.

• Previewed by Ralph C. Anzivino, a professor of law at Marquette University Law School in Milwaukee, Wis.

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Case at a Glance

The Court is asked to determine whether an employee’s agreement to arbitrate employment-related disputes with his or her employer prevents the Equal Employment Opportunity Commission from bringing an enforcement action against the employer to obtain victim-specific remedies for that employee.

• Previewed by Jay E. Grenig, the author of West’s Handbook of Alternative Dispute Resolution (2d edition), a member of the National Academy of Arbitrators, and a professor of law at Marquette University Law School in Milwaukee, Wisc.

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Case at a Glance

These consolidated cases pit established and upstart telecommunications companies against each other in a highstakes battle over the legality of federal restrictions on the amount the former can charge the latter for using existing phone lines for local telephone service.

• Previewed by Steve Lash, a Maryland lawyer who has written extensively on the U.S. Supreme Court for numerous publications.

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Case at a Glance

The defendant was convicted on federal drug charges. The government instituted forfeiture proceedings for the cash that was seized when the defendant was arrested. The government published notice of the forfeiture and sent notice to the defendant via registered mail at the federal prison where the defendant was incarcerated. A mailroom employee signed for the notice, but there is no evidence that the defendant received it. Now the defendant contests the forfeiture and alleges the lack of actual (in person, hand-delivered) notice of the forfeiture violated his due process rights.

• Previewed by Mary Phelan D’Isa, a professor of law at Thomas M. Cooley Law School in Lansing, Mich.

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Case at a Glance

First-degree murder defendant Remon Lee planned to present the testimony of his mother, step-father, and sister to show that he was not in the state when the crime took place. Lee’s witnesses appeared in the morning of the third day of trial, but left before lunch and failed to return. The court denied Lee’s oral motion for a continuance, and he was convicted. Now the Supreme Court must decide whether Lee had a due process right to an overnight continuance, and if so, whether that claim survives a procedural default.

• Previewed by Kathy Swedlow, deputy director of the Cooley Innocence Project and a visiting professor at Thomas M. Cooley Law School in Lansing, Mich.

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Case at a Glance

The Child Pornography Prevention Act expands the definition of child pornography to include images that “appear to be” of minors engaged in sexually explicit conduct and images that “convey the impression” of a minor engaged in such conduct. Thus, the law bans pornography in which, appearances to the contrary, no actual children are used. The government argues that even when a pornographer employs computer-generated images or young-looking adult actors rather than actual children, its speech is of such low social value that it deserves no First Amendment protection.

• Previewed by David L. Hudson, an attorney with the First Amendment Center at Vanderbilt University in Nashville, Tenn.

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Case at a Glance

In 1997, the Supreme Court determined by a narrow 5-4 vote that Kansas could apply its sex-offender law to civilly commit an admitted, repeat child abuser who said he couldn’t control his deviant urges. Now, the Court must determine whether the state must show that a sex offender is unable to control his behavior before it may constitutionally confine him after he has served his criminal sentence.

• Previewed by David L. Hudson, an attorney with the First Amendment Center at Vanderbilt University in Nashville, Tenn.

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Case at a Glance

The immediate and narrow question in this case is whether the U.S. Court of Appeals for the Tenth Circuit “got it right” when it upheld the constitutionality of a U.S. Department of Transportation program that favors general contractors who hire socially and economically disadvantaged subcontractors when awarding federal highway construction contracts. The broader underlying question concerns the constitutional role that courts should play in reviewing affirmative action programs. Just how strict should judicial review of such programs be?

• Previewed by Thomas E. Baker, the James Madison Chair in Constitutional Law and director of the Constitutional Law Center at Drake University Law School in Des Moines, Iowa.

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More information about this case is available in Cases of Interest to the School Community.

Case at a Glance

Since 1970, the OSHA has been responsible for ensuring the safety of the nation's workplaces. It is required to step aside, however, whenever another federal agency promulgates regulations for job sites within its area of competence. In this case, the United States Supreme Court must decide whether the Coast Guard has preempted the OSHA with respect to uninspected vessels.

• Previewed by Robert M. Jarvis, a professor of law at Nova Southeastern University in Fort Lauderdale, Fla., and the immediate past editor of the Journal of Maritime Law and Commerce.

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