I was noting the fact that the current Justices all share very similar professional backgrounds. Every one of them served as a federal circuit court judge before being appointed to the Supreme Court. Not one of them has ever run for political office, like Sandra Day O'Connor or Earl Warren or Hugo Black.

Some pundits, and some Senators, have suggested that your lack of judicial experience is somehow a liability. I could not disagree more. While prior judicial experience can be valuable, the Court should have a broader range of perspectives than can be gleaned from the appellate bench.

Ms. Kagan certainly has numerous talents and many good qualities, but there are serious concerns about this nomination. Ms. Kagan has less real legal experience of any nominee in at least 50 years. And it's not just that the nominee has not been a judge. She has barely practiced law and not with the intensity and duration from which I think real legal understanding occurs.

Ms. Kagan has never tried a case before a jury. She argued her first appellate case just nine months ago. While academia certainly has value, there is no substitute, I think, for being in the harness of the law, handling real cases over a period of years.

Earlier this month, a letter [text, PDF] was released by a group of 69 current and former law school deans [JURIST report], describing her as "superbly qualified." The letter, addressed to Senate Judiciary Committee chair Patrick Leahy (D-VT) and Sessions, was authored by Stanford Law School [academic website] Dean Larry Kramer [professional profile] and represented the views of deans from a diverse group of schools in a variety of states. The group cited Kagan's academic accomplishments, including the qualities she exhibited as former dean of Harvard Law School [official website], to bolster their recommendation. Obama nominated Kagan [JURIST report] in May to replace Justice John Paul Stevens [official profile; JURIST news archive], who announced his retirement [JURIST report] in April. Kagan became the first woman confirmed as Solicitor General [JURIST report] in 2009.

The court will also hear the case of Janus Capital Group v. First Derivative Traders [docket; cert. petition, PDF], where it will determine if a service provider can be held primarily liable in a private securities fraud suit for aiding and participating in another company's misstatements. Section 10(b) of the Securities and Exchange Act [materials] prohibits any manipulation or deception in connection with the purchase or sale of securities, but it is unclear whether the liability associated with the act extends to service providers who aided in the selling of securities where misinformation was involved. The US Court of Appeals for the Fourth Circuit overturned the district court decision [opinion, PDF] and allowed a class action against the petitioner to proceed, holding that a service provider may be liable for securities fraud. There is currently a circuit split on this issue.

In CIGNA Corp. v. Amara [docket; cert. petition, PDF] the court will determine what "showing" is required to entitle participants of the Employee Retirement Income Security Act (ERISA) [materials] to recover benefits where there has been an alleged inconsistency between the explanation of benefits and the terms of the plan. The US Court of Appeals for the Second Circuit applied a "likely harm" standard when affirming the district court's ruling. The circuit courts are deeply divided over this issue, with some requiring a showing of prejudice or reliance in order to recover benefits and others only requiring a discrepancy between the explanation of benefits and the terms of the plan. The Second Circuit has been the only circuit to apply the "likely harm" standard.

The court also granted certiorari in Henderson v. Shinseki, Milner v. Dept. of Navy and Pepper v. United States [dockets].

The court denied certiorari in Philip Morris v. United States [cert. petition, PDF] and six other cases involving tobacco companies, where the tobacco companies were asking the court to overturn a 2006 district court ruling [JURIST reports] that held the tobacco industry [JURIST news archive] liable under civil racketeering laws for deceiving American consumers as to the health effects of their products. The tobacco companies had argued that the district court's decision did not properly consider issues involving the First Amendment [text] and that the government's application of the Racketeer Influenced and Corrupt Organizations Act (RICO) [18 USC §§ 1961–1968] was overbroad. The court declined to hear the cases without comment.

The court also denied certiorari in Holy See v. John Doe [cert. petition, PDF], where the Holy See [official website] was asking the court to consider whether it is entitled to immunity under the Foreign Sovereign Immunities Act (FSIA) [28 USC § 1602 et seq text]. The plaintiff filed a respondeat superior claim against the Vatican alleging that he was a victim of clergy sexual abuse [JURIST news archive] and that the church could be held responsible as the offending priest's employer. The US Court of Appeals for the Ninth Circuit affirmed [opinion, PDF] the district court's ruling that the tort claim fell under the exemptions to FSIA and the Vatican, therefore, did not have immunity. The court declined to hear the case without comment.

This arrangement contradicts Article II's vesting of the executive power in the President. Without the ability to oversee the Board, or to attribute the Board's failings to those whom he can oversee, the President is no longer the judge of the Board's conduct. He can neither ensure that the laws are faithfully executed, nor be held responsible for a Board member's breach of faith. If this dispersion of responsibility were allowed to stand, Congress could multiply it further by adding still more layers of good-cause tenure. Such diffusion of power carries with it a diffusion of accountability; without a clear and effective chain of command, the public cannot determine where the blame for a pernicious measure should fall. The Act's restrictions are therefore incompatible with the Constitution's separation of powers.

The Sarbanes-Oxley Act was passed in 2002 to reform business practices and prevent corporate fraud by overseeing the accounting industry and punishing corrupt auditors. In 2006, the Free Enterprise Fund, a non-profit public interest organization promoting economic growth, lower taxes and limited government, and a Nevada accounting firm, Beckstead and Watts, LLP [corporate website], challenged [JURIST report] certain portions of the legislation, alleging that it violated separation of powers doctrine because it did not give the president sufficient control over the agency. Consistent with the overall purpose of Sarbanes-Oxley, the PCAOB was created in response to the collapse of Enron and the other corporate fraud scandals [JURIST news archives] that made headlines in 2002. The five-member PCAOB is appointed and overseen by the SEC.

In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.

Based on Heller, the court's ruling was somewhat expected. In Heller, the court ruled that the Second Amendment bestows upon citizens, an individual right to own firearms for lawful purposes, but that the right is not unlimited. Chicago's mayor has previously defended the law [AP report] and indicated that the city would continue trying to limit gun possession in a constitutional manner. During oral arguments, counsel for the city of Chicago, argued against application [JURIST report] of the Second Amendment to the states on the basis that state and local governments have historically been "primary locus" of gun control.

The machine-or-transformation test may well provide a sufficient basis for evaluating processes similar to those in the Industrial Age; for example, inventions grounded in a physical or other tangible form. But there are reasons to doubt whether the test should be the sole criterion for determining the patentability of inventions in the Information Age. ... In the course of applying the machine-or-transformation test to emerging technologies, courts may pose questions of such intricacy and refinement that they risk obscuring the larger object of securing patents for valuable inventions without transgressing the public domain. ... This Age puts the possibility of innovation in the hands of more people and raises new difficulties for the patent law. With ever more people trying to innovate and thus seeking patent protections for their inventions, the patent law faces a great challenge in striking the balance between protecting inventors and not granting monopolies over procedures that others would discover by independent, creative application of general principles. Nothing in this opinion should be read to take a position on where that balance ought to be struck.

But the Court is quite wrong, in my view, to suggest that any series of steps that is not itself an abstract idea or law of nature may constitute a process within the meaning of § 101. The language in the Courts opinion to this effect can only cause mischief. The wiser course would have been to hold that petitioners method is not a process because it describes only a general method of engaging in business transactions and business methods are not patentable.

The patentability of business methods and software as "processes" is a controversial subject among practitioners. Monday's opinion has been long anticipated in the patent law community and adds to a significant line of cases spanning several decades defining patentable "processes." The court granted certiorari in June 2009 and heard oral arguments [JURIST reports] in November of that year. During arguments, the court approached the issue of classifying business methods and other processes as patentable subject matter broadly and with skepticism.

In requiring CLS—in common with all other student organizations—to choose between welcoming all students and forgoing the benefits of official recognition, we hold, Hastings did not transgress constitutional limitations. CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings' policy. The First Amendment shields CLS against state prohibition of the organization's expressive activity, however exclusionary that activity may be. But CLS enjoys no constitutional right to state subvention of its selectivity. ... Hastings, caught in the crossfire between a group's desire to exclude and students' demand for equal access, may reasonably draw a line in the sand permitting all organizations to express what they wish but no group to discriminate in membership.

In 2004, CLS became the first group to seek exemption from Hastings' nondiscrimination policy. CLS chapters exclude from affiliation anyone who engages in "unrepentant homosexual conduct" or holds religious convictions different from those in the Statement of Faith, which all members are required to sign. After Hasting rejected the group's application for RSO status and denied its exemption request, CLS continued to operate independently on campus. In 2005, CLS filed suit claiming that Hastings violated the group's First Amendment rights by not exempting it from the nondiscrimination clause. The district court issued a summary judgment for the law school, which was affirmed by the Ninth Circuit.

Last January, Honduran President Porfirio Lobo [NYT profile] granted amnesty to both Zelaya and military leaders accused of participation in the coup. Also in January, the Honduran Supreme Court [official website, in Spanish] exonerated six military leaders [JURIST report] accused of abuse of power for their alleged roles in the coup. In December, the Honduran Congress voted 111-14 not to reinstate [JURIST report] Zelaya. His ouster was the result of a judicial order [press release, in Spanish] that asserted Zelaya had broken Honduran law by attempting to conduct a controversial referendum on constitutional reform [JURIST report], contrary to a Supreme Court ruling.

Last month, the Paris Court of Appeals [official website, in French] denied a request [JURIST report] by Noriega to be released from jail while awaiting his trial. Noriega claimed that he is too well-known to be a flight risk and that because of his partial paralysis and poor health, he was not receiving adequate care in Paris's La Sante prison. The court rejected his appeal, remanding him to custody. In April, the French Justice Ministry denied [JURIST report] Noriega's request to be treated as a prisoner of war (POW). Justice Ministry spokesperson Guillaume Didier said that Noriega would not be treated as a POW [AFP report] because the charges are based on breaches of common law not related to military service. Earlier that week, Panamanian President Ricardo Martinelli [official profile, in Spanish] said that his government would seek Noriega's extradition [JURIST report] to face charges of human rights violations in Panama. Noriega had fought extradition [JURIST report] from the US since 2007. In March, the US Supreme Court declined to reconsider [JURIST report] Noriega's petition to stop the extradition process.