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May 26, 2009

The Supremes' Review of Sotomayor's Statutory Construction Cases

I ram a simple Westlaw search and found 3 cases where the Court reviewed a decision of Judge Sotomayor that involved statutory construction.

They're real snoozers, and am not sure they tell us much but...

The question in the latest was  “Whether [§ 1326(b) ] ... authorizes the [EPA] to compare costs with benefits in determining ‘the best technology available for minimizing adverse environmental impact’ at cooling water intake structures.”   Entergy Corp. v. Riverkeeper, Inc., 129 S.Ct. 1498 (2009).  Boiled down, the 2d circuit had remanded, but the supremes held the EPA had discretion to do cost/benefit analyses under the particular statute.

Knight v. IRS, 128 S.Ct. 782 (2008) affirmed her decision involving a thrilling tax statute.  The opening paragraph says it all:

Under the Internal Revenue Code, individuals may subtract from their taxable income certain itemized deductions, but only to the extent the deductions exceed 2% of adjusted gross income. A trust may also claim those deductions, also subject to the 2% floor, except that costs incurred in the administration of the trust, which would not have been incurred if the trust property were not held by a trust, may be deducted without regard to the floor. In the case of individuals, investment advisory fees are subject to the 2% floor; the question presented is whether such fees are also subject to the floor when incurred by a trust. We hold that they are and therefore affirm the judgment below, albeit for different reasons than those given by the Court of Appeals.

Third, in Merrill Lynch, Pierce Fenner & Smith, Inc. v. Dabit, 547 U.S. 71 (2006), the 2d circuit got reversed and the seventh affirmed:

Title I of the Securities Litigation Uniform Standards Act of 1998 (SLUSA) provides that “[n]o covered class action” based on state law and alleging “a misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security” “may be maintained in any State or Federal court by any private party.” § 101(b), 112 Stat. 3230 (codified at 15 U.S.C. § 78bb(f)(1)(A)). In this case the Second Circuit held that SLUSA only pre-empts state-law class-action claims brought by plaintiffs who have a private remedy under federal law. 395 F.3d 25 (2005). A few months later, the Seventh Circuit ruled to the contrary, holding that the statute also pre-empts state-law class-action claims for which federal law provides no private remedy. Kircher v. Putnam Funds Trust, 403 F.3d 478 (C.A.7 2005). The background, the text, and the purpose of SLUSA's pre-emption provision all support the broader interpretation adopted by the Seventh Circuit.

Not sure these cases will be the subject of blazing cross-examination at the confirmation hearing...

May 26, 2009 in Television | Permalink


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