Janus Capital Group, Inc. v. First Derivative Traders, 09-525, June 13, 2011
The Petitioner created an investment fund–a separate legal entity–and served as advisor and administrator to the fund. Securities law forbids “any person” to “make any untrue statement” related to the sale of securities. The Respondent alleged that the Petitioner drafted false statements used by the fund in its investment materials and that the statements undermined the value of the Respondent’s shares in the Petitioner firm. The Court (J. Thomas wrote the opinion; J. Breyer filed a dissent, joined by J. Ginsburg, J. Sotomayor, and J. Kagan) limited the statute’s use of the term “make” to the expression of a person with ultimate authority over the content of the message, and not to persons who significantly contribute to the formation of the statement. Therefore, reasoned the Court, the untrue statements were not made by the entity that made them, but were made by another entity made by the entity to make the statements it made. Justice Scalia joined the opinion, and must therefore be satisfied with the application of the plain meaning rule in this case. The Wall Street Journal’s editorial staff declared victory against a barbarian horde of plaintiffs’ lawyers. A post by Larry Ribstein at Truth on the Market looked at the holding and past cases, and wondered when Congress will simply eliminate this area of securities law. (These guys really don’t like shareholders having a private right of action against the people who used lies to sell them securities.)
Nevada Commission on Ethics v. Carrigan, 10-568, June 13, 2011
Nevada law requires elected officials to recuse themselves in matters where “the independence of judgment of a reasonable person in his situation would be materially affected by” his “commitment…to the interests of” close friends and relations. The Respondent, an elected official, voted to approve a project proposed by a firm that had hired his close friend and campaign manager. When the Petitioner censured the Respondent, he sued saying that the ethics law unconstitutionally limits his free speech rights. Justice Scalia delivered the opinion of a unanimous Court (J. Kennedy and J. Alito each filed a concurring opinion) finding that an official’s vote is not protected by the 1st Amendment. Daniel Fisher in Forbes noted that Scalia’s opinion included a few rhetorical jabs at fellow conservative Justice Alito. An editorial in the Las Vegas Sun lauded the decision.
U.S. v. Jicarilla Apache Nation, 10-382, June 13, 2011
In a law suit brought by a tribe to enforce its trust rights, the U.S. government sought to avoid the production of certain documents claiming attorney-client privilege. The Court of Federal Claims–affirmed by the Federal Circuit–denied the government’s motion, relying on the common law exception to privilege exclusions when the requested party stands as fiduciary to the requestor. But the Court held (J. Alito wrote the opinion; J. Ginsburg filed an opinion concurring in the judgment, joined by J. Breyer; J. Sotomayor filed a dissent; J. Kagan did not participate) that the trust relationship of the U.S. to a tribe is sufficiently distinct from common law trust relationships to overcome the privilege exception rule. Andrew Cohen in The Atlantic commented on the opinion, noting how the majority both reflects and continues the troubled history of Native American justice in this country.
Flores-Villar v. United States, 09-5801, June 13, 2011
The Immigration and Nationality Act grants citizenship to foreign-born children if the mother is a citizen who had lived in the US for one continuous year, or if the father is a citizen who had lived in the US for at least five continuous years after the father’s fourteenth birthday. The Petitioner was born in Tijuana, Mexico, to a Mexican mother, and an American father who was just sixteen years old. The Petitioner, having been convicted of illegal re-entry after deportation, asserted that the Act’s disparate treatment of children born to citizen-mothers and children born to citizen-fathers violates his Equal Protection rights. Justice Kagan did not participate in the case because of her prior post as Solicitor General, and a split Court affirmed the lower courts without opinion. The Christian Science Monitor reviewed the law and the facts of the case. Sandra S. Park with the ACLU Women’s Rights Project posted an item on ACS Blog, arguing that the 70-year-old Act’s gender-based standards are a reflection of outmoded stereotypes.