Business' Big Stake In U.S. Supreme Court's New Term

Dec. 21, 2004

Communications licenses, copyrights and product liability are already on the docket; funding elections likely will be.

As the nine justices of the Supreme Court of the United States prepare for the opening of this fall's term on Oct. 7, nearly a dozen business-related cases are headed for their review. But the most eagerly awaited case of the term, McConnell v. Federal Elections Commission, has yet to reach the high court. Still before a special, three-judge panel in the District of Columbia, the business-related case involves the constitutionality of limits on the purpose and timing of corporate (and other) contributions to political campaigns. A decision in this key campaign-law-reform case is widely expected before the Supreme Court completes its term next June. In the meantime, four business-related cases are scheduled to be argued during the first two weeks of the coming term. On opening day, Oct. 7, in Ford Motor Co. and Citibank (South Dakota) N.A. v. McCauley, et al (No. 01-896), the seemingly arcane legal issue is whether differing interpretations of the standard "the amount in controversy for diversity jurisdiction" unfairly handicap business efforts to move class-action lawsuits from state courts into federal courts. The practical impact is clear, however. Simply, stated, companies in class-action litigation believe they get a fairer hearing in federal courts than they do in state courts. On Oct. 8 the rather narrow issue before the justices in Federal Communications Commission v. NextWare Personal Communications Inc. (No. 01-653) will be whether the U.S. bankruptcy code does or does not allow the FCC to revoke a spectrum license solely because a bankrupt bidder failed to make a timely payment, explains Charles J. Cooper, a partner in the Washington, D.C. law firm of Cooper & Kirk PLLC. On Oct. 9, in the wider-reaching case of Eldred v. Ashcroft (No. 01-618), the justices will be considering the constitutionality of the Copyright Term Extension Act of 1998. The law provides an individual with copyright protection for life plus 70 years, and there's a question whether copyright protection for that period of time is consistent with the Constitution's language that authors and inventors have exclusive right to their writings and discoveries "for limited times." On Oct. 15 the issue is whether federal law -- in this instance the Federal Boat Safety Act -- preempts product-liability and wrongful-death suits filed under state law. The case is Sprietsma v. Mercury Marine, a division of Brunswick Corp. (No. 01-706) and is significant because "federal preemption ensures that businesses and individuals need comply with only one set of national regulations, rather than the varied regimes of the 50 states, the District of Columbia and thousands of local governments," contends the National Chamber Litigation Center, a unit of the Washington, D.C.-based U.S. Chamber of Commerce. Later in the term, the matter of federal preemption will come up again in Pharmaceutical Research & Manufacturers of America (PhRMA) v. Concannon (No. 01-188). The question in that case is whether a Maine fair-price-for-prescription-drugs statute is at odds with the federal Medicaid program and adversely impacts interstate commerce. The U.S. Chamber's Litigation Center is continuing its crusade against what it considers to be excessive monetary judgments against businesses. In an amicus brief already filed in State Farm Mutual Automobile Insurance Co. v. Campbell (No. 01-1289), the center is asking the U.S. Supreme Court to overturn a Utah Supreme Court punitive damage award that was 145 times the compensatory damages awarded in an automobile-accident case. A date for oral argument has yet to be set. Finally, the Supreme Court this term could consider and decide two highly emotional and controversial asbestos-related cases. The justices have already agreed to hear Norfolk & Western Railroad v. Ayers (No. 01-1963), and Mobil Corp. and Honeywell International Inc. v. Adkins et al (No. 01-132) is headed their way. Ayers, slated for oral argument on Nov. 6, involves a West Virginia state court award of $5.8 million to six retired railroad workers who feared they might develop asbestos-related cancers but showed none of the signs. Adkins questions the consolidation of asbestos-related product-liability claims in West Virginia by people who have no connection to the state.

About the Author

John McClenahen | Former Senior Editor, IndustryWeek

John S. McClenahen, is an occasional essayist on the Web site of IndustryWeek, the executive management publication from which he retired in 2006. He began his journalism career as a broadcast journalist at Westinghouse Broadcasting’s KYW in Cleveland, Ohio. In May 1967, he joined Penton Media Inc. in Cleveland and in September 1967 was transferred to Washington, DC, the base from which for nearly 40 years he wrote primarily about national and international economics and politics, and corporate social responsibility.

      McClenahen, a native of Ohio now residing in Maryland, is an award-winning writer and photographer. He is the author of three books of poetry, most recently An Unexpected Poet (2013), and several books of photographs, including Black, White, and Shades of Grey (2014). He also is the author of a children’s book, Henry at His Beach (2014).

      His photograph “Provincetown: Fog Rising 2004” was selected for the Smithsonian Institution’s 2011 juried exhibition Artists at Work and displayed in the S. Dillon Ripley Center at the Smithsonian Institution in Washington, D.C., from June until October 2011. Five of his photographs are in the collection of St. Lawrence University and displayed on campus in Canton, New York.

      John McClenahen’s essay “Incorporating America: Whitman in Context” was designated one of the five best works published in The Journal of Graduate Liberal Studies during the twelve-year editorship of R. Barry Leavis of Rollins College. John McClenahen’s several journalism prizes include the coveted Jesse H. Neal Award. He also is the author of the commemorative poem “Upon 50 Years,” celebrating the fiftieth anniversary of the founding of Wolfson College Cambridge, and appearing in “The Wolfson Review.”

      John McClenahen received a B.A. (English with a minor in government) from St. Lawrence University, an M.A., (English) from Western Reserve University, and a Master of Arts in Liberal Studies from Georgetown University, where he also pursued doctoral studies. At St. Lawrence University, he was elected to academic honor societies in English and government and to Omicron Delta Kappa, the University’s highest undergraduate honor. John McClenahen was a participant in the 32nd Annual Wharton Seminars for Journalists at the Wharton School at the University of Pennsylvania in Philadelphia. During the Easter Term of the 1986 academic year, John McClenahen was the first American to hold a prestigious Press Fellowship at Wolfson College, Cambridge, in the United Kingdom.

      John McClenahen has served on the Editorial Board of Confluence: The Journal of Graduate Liberal Studies and was co-founder and first editor of Liberal Studies at Georgetown. He has been a volunteer researcher on the William Steinway Diary Project at the Smithsonian Institution, Washington, D.C., and has been an assistant professorial lecturer at The George Washington University in Washington, D.C.