Month: February 2016

On January 25, 2016, the Supreme Court decided Musacchio v. United States. Petitioner Musacchio was convicted in a jury trial on two counts of violating the Computer Fraud and Abuse Act. At trial, the district court had incorrectly instructed the jury that the government had to prove more stringent elements than the statute actually required, but the government had failed to object. On appeal, Musacchio argued that the government had failed to present evidence sufficient to sustain a conviction under this more stringent standard. He also argued that one of the counts on which he was convicted had been barred by a statute of limitations, but had not raised this objection at trial. The U.S. Court of Appeals for the Fifth Circuit rejected both challenges and affirmed Musacchio’s conviction. -- The question before the Supreme Court was twofold: (1) how should federal courts assess a challenge to the sufficiency of the evidence in a criminal case when a jury instruction adds an element to the charged crime and the Government fails to object; and (2) can a defendant successfully raise the general federal criminal statute of limitations for the first time on appeal? -- By a vote of 9-0, the Court affirmed the judgment of the Fifth Circuit, holding that (1) the challenge to sufficiency of the evidence should be assessed against the elements of the charged crime, rather than the elements set forth in the erroneous jury instruction; and (2) the statute of limitations bar could not be raised for the first time on appeal. Justice Thomas delivered the opinion for a unanimous Court. -- To discuss the case, we have Mark H. Bonner, who is Associate Professor at Ave Maria School of Law.

On January 25, 2016, the Supreme Court decided several energy cases consolidated under the heading Federal Energy Regulatory Commission v. Electric Power Supply Association. These cases concern a practice called “demand re­sponse,” in which operators of wholesale markets pay electricity consumers for commitments not to use power at certain times. In the regulation challenged here, the Federal Energy Regulatory Commission (FERC) required those market operators, in specified circumstances, to compensate the two services equivalently—that is, to pay the same price to demand response providers for conserving energy as to generators for making more of it. The U.S. Court of Appeals for the D.C. Circuit vacated this regulation, however, holding it beyond the FERC’s authority under the Federal Power Act as well as arbitrary and capricious, for failure to justify adequately a potential windfall to demand response providers. -- The Supreme Court granted certiorari on two questions: (1) Does the Federal Power Act permit FERC to regulate these demand response transactions at all, or does any such rule impinge on the States’ residual authority? (2) Even if FERC has the requisite statutory power, did FERC fail to justify adequately why demand response providers and electricity producers should receive the same compensation? -- By a vote of 6-2, the Court reversed the judgment of the D.C. Circuit and remanded the case, holding that (1) FERC did possess adequate regulatory authority under the Federal Power Act; and (2) FERC’s decision to compensate demand response providers at locational marginal price was not arbitrary and capricious. Justice Kagan delivered the opinion of the Court, in which the Chief Justice and Justices Kennedy, Ginsburg, Breyer, and Sotomayor joined. Justice Scalia filed a dissenting opinion in which Justice Thomas joined. Justice Alito was recused from this case. -- To discuss the case, we have James Coleman, who is assistant professor at the University of Calgary, Faculty of Law and Haskayne School of Business.

On January 20, 2016, the Supreme Court heard oral arguments in Sturgeon v. Frost. Sturgeon challenged a National Park Service (NPS) ban on the operation of hovercraft on the National River, part of which falls within the Yukon-Charley River National Preserve. The State of Alaska then intervened, challenging NPS’s authority to require its researchers to obtain a permit before engaging in studies of chum and sockeye salmon on the Alagnak River, part of which falls within the boundaries of the Katmai National Park and Preserve. Sturgeon and Alaska contended that the Alaska National Interest Lands Conservation Act (ANILCA) precludes NPS from regulating activities on state-owned lands and navigable waters that fall within the boundaries of National Park System units in Alaska. The district court ruled in favor of the federal government, and the Ninth Circuit affirmed that judgment as to Sturgeon but ordered that Alaska’s case be dismissed for lack of standing. -- The question before the Court is whether ANILCA prohibits the National Park Service from exercising regulatory control over state, native corporation, and private Alaska land physically located within the boundaries of the National Park System. -- To discuss the case, we have Gale Norton, who served as the 48th U.S. Secretary of the Interior.