dissentAfter Justice Antonin Scalia’s recent death, one aspect of the deceased Justice’s long record on the Supreme Court that occasioned significant commentary was the extent to which he often dissented from the Court’s majority, sometimes employing sharp and even provocative language. While Scalia was a more frequent dissenter than many of his fellow justices, at least during the time he served on the Court, there was nothing particularly unusual about the fact that he was dissenting (or, for that matter, that he dissented so frequently). Dissenting opinions have been a part of the Court’s activities for many decades now; however, it was not always so. In the country’s earliest days, dissents were rare, becoming frequent only late in the 19th century, and becoming common only early in the 20th century. As well-documented in Melvin I. Urofky’s interesting and well-written book, Dissent and the Supreme Court (here), dissenting opinions at the U.S. Supreme Court have come to play an important role in our constitutional dialogue. Indeed, as Urshofsky argues, the leading dissents have played an important role in how the country thinks of itself.
Continue Reading Book Review: “Dissent and the Supreme Court”

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Antonin Scalia

U.S. Supreme Court Justice Antonin Scalia’s death on Saturday has already triggered concerns about the possible outcome of the numerous important cases now pending before the Court, and has further agitated an already tumultuous Presidential election campaign. The furious debate that is already well underway about the nomination of Justice Scalia’s successor could be one of the key issues in the current campaign, and perhaps beyond. While these controversies are likely to continue and to dominate the headlines for some time to come, a different process will also be taking place, and also will likely continue for some time – that is, the debate over Justice Scalia’s legacy.
Continue Reading Justice Scalia’s Business Law Legacy

paul weiss largeThe U.S. government’s petition for writ of certiorari in the case of United States v. Newman had been very closely watched. The government hoped to have the Supreme Court set aside the Second Circuit’s 2014 decision in the case (here), which had overturned the convictions of two hedge fund managers accused of insider trading. In an unexpected development, on the first day of the Supreme Court’s 2015-16 term, the Court declined take up the case.

The following guest post from the Paul Weiss law firm takes a look at this development and analyzes the implications. I would like to that the authors for their willingness to publish their article on this blog. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to submit a guest post. Here is the Paul Weiss firm’s guest post.

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Yesterday, the United States Supreme Court declined to hear the petition for a writ of certiorari (the “Petition”)  filed by the United States Department of Justice (“DOJ”) in United States v. Newman, 773 F.3d 438 (2d Cir. 2014), a landmark decision that dismissed indictments against two insider trading defendants.  By declining to hear the Petition, the Supreme Court ensured that the Second Circuit’s decision in Newman will remain binding in the Second Circuit and influential across the country.

As we explain below, two of Newman’s holdings are particularly important: first, that the government must prove that a remote tippee knew or should have known of the personal benefit received by a tipper in exchange for disclosing nonpublic information; and second, that the benefits alleged by the government in United States v. Newman were not sufficient to support a conviction, as they were not sufficiently “consequential.”
Continue Reading Guest Post: Supreme Court Declines To Consider Second Circuit’s Landmark Insider Trading Ruling

kaganIn a March 24, 2015 opinion in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund (here), the U.S. Supreme Court set aside the Sixth Circuit’s ruling that allegations of “objective falsity” were sufficient to make a statement of opinion in securities offering documents actionable. The Supreme Court remanded the case to

skadden_logo_noLLP_bigAs I discuss in the accompanying post, on March 24, 2015, the U.S. Supreme Court issues its opinion in the Omnicare case. In the following guest post, the Skadden law firm summarizes the case and its holding. A version of the guest post previously was published as a Skadden client alert. I would like