The  U.S. Supreme Court issued three big decisions today:

• In Northwest Austin Municipal Utility District No. One v. Holder, No. 08-322 (U.S. June 22, 2009), the 8-1 Court ruled that the Voting Rights Act of 1965 allowed a quasi-governmental entity in Canyon Creek, Texas, to "bail out" of the Act's "preclearance" regime.

• In Forest Grove School District v. T.A., No. 08-305 (U.S. June 22, 2009), the Court split 6-3 in a case under the Individuals with Disabilities Education Act.  A student asked a public school he had attended to pay him back for the cost of his private special education.  The Court held that the IDEA doesn't bar such a claim on the ground that the student hadn't previously received special education services under authority of a public agency.

• In Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, No. 07-984 (U.S. June 22, 2009), another 6-3 case, the Court upheld an Army Corps of Engineers permit that authorized a gold mining company to pump rock slurry into a small lake (and kill all the fish in it).

Our feed walks like an Egyptian.

Remember the 19th-century Frenchie guy who wrote the long book about how much he loved America and Americans?  Tocqueville?  That one.

He said lots of surprising things.  He wrote, for instance, that he saw trial by jury in America as more of a "political" institution than a "judicial" one.  Huh?

Tocqueville explains:

I am so entirely convinced that the jury is pre-eminently a political institution that I still consider it in this light when it is applied in civil causes. Laws are always unstable unless they are founded upon the manners of a nation; manners are the only durable and resisting power in a people. When the jury is reserved for criminal offences, the people only witnesses its occasional action in certain particular cases; the ordinary course of life goes on without its interference, and it is considered as an instrument, but not as the only instrument, of obtaining justice. This is true a fortiori when the jury is only applied to certain criminal causes.

When, on the contrary, the influence of the jury is extended to civil causes, its application is constantly palpable; it affects all the interests of the community; everyone co-operates in its work: it thus penetrates into all the usages of life, it fashions the human mind to its peculiar forms, and is gradually associated with the idea of justice itself.

The institution of the jury, if confined to criminal causes, is always in danger, but when once it is introduced into civil proceedings it defies the aggressions of time and of man. If it had been as easy to remove the jury from the manners as from the laws of England, it would have perished under Henry VIII, and Elizabeth, and the civil jury did in reality, at that period, save the liberties of the country. In whatever manner the jury be applied, it cannot fail to exercise a powerful influence upon the national character; but this influence is prodigiously increased when it is introduced into civil causes. The jury, and more especially the jury in civil cases, serves to communicate the spirit of the judges to the minds of all the citizens; and this spirit, with the habits which attend it, is the soundest preparation for free institutions. It imbues all classes with a respect for the thing judged, and with the notion of right. If these two elements be removed, the love of independence is reduced to a mere destructive passion. It teaches men to practice equity, every man learns to judge his neighbor as he would himself be judged; and this is especially true of the jury in civil causes, for, whilst the number of persons who have reason to apprehend a criminal prosecution is small, every one is liable to have a civil action brought against him. The jury teaches every man not to recoil before the responsibility of his own actions, and impresses him with that manly confidence without which political virtue cannot exist. It invests each citizen with a kind of magistracy, it makes them all feel the duties which they are bound to discharge towards society, and the part which they take in the Government. By obliging men to turn their attention to affairs which are not exclusively their own, it rubs off that individual egotism which is the rust of society.

The jury contributes most powerfully to form the judgement and to increase the natural intelligence of a people, and this is, in my opinion, its greatest advantage. It may be regarded as a gratuitous public school ever open, in which every juror learns to exercise his rights, enters into daily communication with the most learned and enlightened members of the upper classes, and becomes practically acquainted with the laws of his country, which are brought within the reach of his capacity by the efforts of the bar, the advice of the judge, and even by the passions of the parties. I think that the practical intelligence and political good sense of the Americans are mainly attributable to the long use which they have made of the jury in civil causes. I do not know whether the jury is useful to those who are in litigation; but I am certain it is highly beneficial to those who decide the litigation; and I look upon it as one of the most efficacious means for the education of the people which society can employ.

What I have hitherto said applies to all nations, but the remark I am now about to make is peculiar to the Americans and to democratic peoples. I have already observed that in democracies the members of the legal profession and the magistrates constitute the only aristocratic body which can check the irregularities of the people. This aristocracy is invested with no physical power, but it exercises its conservative influence upon the minds of men, and the most abundant source of its authority is the institution of the civil jury. In criminal causes, when society is armed against a single individual, the jury is apt to look upon the judge as the passive instrument of social power, and to mistrust his advice. Moreover, criminal causes are entirely founded upon the evidence of facts which common sense can readily appreciate; upon this ground the judge and the jury are equal. Such, however, is not the case in civil causes; then the judge appears as a disinterested arbiter between the conflicting passions of the parties. The jurors look up to him with confidence and listen to him with respect, for in this instance their intelligence is completely under the control of his learning. It is the judge who sums up the various arguments with which their memory has been wearied out, and who guides them through the devious course of the proceedings; he points their attention to the exact question of fact which they are called upon to solve, and he puts the answer to the question of law into their mouths. His influence upon their verdict is almost unlimited.

If I am called upon to explain why I am but little moved by the arguments derived from the ignorance of jurors in civil causes, I reply, that in these proceedings, whenever the question to be solved is not a mere question of fact, the jury has only the semblance of a judicial body. The jury sanctions the decision of the judge, they by the authority of society which they represent, and he by that of reason and of law.

So, to review:

• juries bring the "manners of the nation" to bear in civil cases and ergo lend stability to the law.
• over time, people come to associate ideas of justice with civil juries;
• verdicts in civil cases teach community standards of behavior to judges and the people; and
• civil juries increase respect for judges and their judgments.

 Happy summer solstice!

From the May issue of Barnett's Notes on Commercial Litigation:

Teddy Roosevelt's Department of Justice sued to bust up Standard Oil .

The signs of a tougher approach to bigness and badness have grown like . . . Google.

On May 18, 2008, presidential candidate Barack Obama said:

I will assure that we will have an antitrust division that is serious about pursuing cases.

There are going to be areas, in the media for example where we're seeing more and more consolidation, that I think [it] is legitimate to ask . . . is the consumer being served?

We're going to have an antitrust division in the Justice Department that actually believes in antitrust law. We haven't had that for the last seven, eight years.

Some of the consolidations that have been taking place, I think, may be anti-competitive.

Flash forward to April 20, 2009, when the U.S. Senate confirmed President Obama's nominee, Christine Varney, to head the Antitrust Division in the Department of Justice.

Two days later, Ms. Varney named  her top aides, all of them sporting pro-antitrust credentials.

But the coup de grace came on May 11, 2009.  On that day, Ms. Varney withdrew an antitrust-lite report that her agency had issued only eight months earlier, "Competition and Monopoly:  Single-Firm Conduct Under Section 2 of the Sherman Act ". 

The New York Times had called the report "a new set of guidelines that narrow the interpretation of abuse that would justify government intervention against monopolies.  It is a deregulatory gift aimed at getting pesky antitrust enforcers off of the back of big business."  The Federal Trade Commission had refused to sign it, deeming it "a blueprint for radically weakened enforcement of section 2 of the Sherman Act."

Plainly the mood has changed.  What can we expect from Ms. Varney's resurgent Antitrust Division?

1.  Merger challenges.  The previous administration did not contest any corporate mergers.  In her Senate hearing, by contrast, Ms. Varney wondered why the government gave a pass to mergers between XM and Sirius and Maytag and Whirlpool.  Last year, she also deemed an abortive Google-Yahoo deal on search ads "fundamentally anticompetitive. 

2.  Monopoly cases.   In dropping the Section 2 report, Ms. Varney said that "the Antitrust Division will be aggressively pursuing cases where monopolists try to use their dominance in the marketplace to stifle competition and harm consumers."  The "Don't Be Evil " guys, among others, likely got the message.

3.  ARRA fraud cases.  The American Recovery and Reinvestment Act of 2009 set aside $500 or so billion to revive the economy.  The Antitrust Division has created its own Recovery Initiative to help prevent "third-party fraud, waste, and abuse relating to the securing and use of ARRA funds."  We can also expect prosecutions.  We'll have to see whether the anti-fraud work carries over to other stimulus projects, such as the Troubled Asset Relief Program and the impending Public-Private Investment Program .

4.  Cartel litigation.  While praising the Division's recent record of fighting criminal cartel activity, Ms. Varney warned that, "[w]ith the higher levels of concentration and economic instability, markets are increasingly vulnerable to collusion and other fraudulent activity."

5.  Focus on technology.  Ms. Varney headed her firm's Internet practice group.  She said she wants to look at "other new areas of civil enforcement, such as those arising in high-tech and Internet-based markets."  She also  opined last year that "Google has acquired a monopoly in Internet online activity".

6.  Scrutiny of industries in distress.  The top economist in the Antitrust Division, Carl Shapiro, said on May 13, 2009, that "tough economic times . . . are exactly the times when suppliers may be most likely to seek some relaxation of the antitrust laws and most tempted to collude."

7.  More doubts at federal agencies on industry structure and pro-competitive arguments.  Ms. Varney rejected the Section 2 report in part because it "sound[ed] a call of great skepticism regarding the ability of antitrust enforcers – as well as antitrust courts – to distinguish between anticompetitive acts and lawful conduct, and raises the related concern that the failure to make proper distinctions may lead to 'over-deterrence' with regard to potentially procompetitive conduct."  We can expect that her aversion to the skepticism will carry over to other agencies.  The acting Chairman of the Federal Communications Commission, Michael Copps, spoke recently about "[t]wo decades of mindless deregulation" and "a veritable tsunami of consolidation across not just communications, but most business sectors . . . ."  And the new FTC Chairman, Jonathan Leibowitz, decried the Section 2 report as "chiefly concerned with firms that enjoy monopoly or near-monopoly power".

8.  An up-tick in follow-on civil cases.  Antitrust actions by government agencies tend to produce private civil actions also.  Expect to see more of both.

One thing Blawgletter would like to see but probably won't:  More attention in judicial nominations to views on competition law.  Although comments in the business press about Supreme Court nominee, Second Circuit Judge Sonia Sotomayor, do imply at least some interest in that area.

Our feed loves to go a-wandering, along the mountain track.  And as it goes, it loves to sing, its knapsack on its back.

The U.S. Supreme Court today ambled toward the summer hiatus, trotting out four decisions.  Two involved civil claims against businesses.

In Gross v. FBL Financial Services, Inc., No. 08-441 (U.S. June 18, 2009), the Court held that the Age Discrimination in Employment Act of 1967 requires proof that age but-for caused a demotion.  Showing that age partly "motivated" the employer's action doesn't suffice:

We hold that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the "but-for" cause of the challenged adverse employment action.  The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.

Id., slip op. at 12.  Chief Justice Roberts and Justices Alito, Kennedy, and Scalia joined in Justice Thomas's majority opinion.  Justices Breyer, Ginsburg, Souter, and Stevens dissented.

The other case, Travelers Indemnity Co. v. Bailey, No. 08-295 (U.S. June 18, 2009), dealt with the res judicata effect of a 1986 injunction.  The plaintiffs sued insurers of Johns-Manville Corporation for hiding the dangers of exposure to asbestos-containing products.  The Manville bankruptcy judge ruled that the old injunction barred the claims and ordered the plaintiffs to desist.  The Second Circuit reversed, holding that the bankruptcy court lacked jurisdiction in 1986 to enjoin the "direct" claims against the insurers.  The Court reversed because, it explained, res judicata doesn't allow a collateral attack on a final judgment even on the ground that the court didn't have jurisdiction of the subject matter.

Justice Souter wrote the majority opinion.  Justices Stevens and Ginsburg dissented.