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Federalism

McDonnell v. US: Corruption or Federal Overreach?

Short video featuring Rachel Paulose
Rachel Kunjummen Paulose April 25, 2016

Partner at DLA Piper LLP and Former U.S. Attorney Rachel Paulose discusses the appeal of Governor McDonnell’s criminal conviction for corruption because he accepted gifts and money from Williams in exchange for helping Williams develop his business in Virginia. Governor McDonnell denies violating the relevant federal laws. The Supreme Court hears the case on Wednesday, April 27. 

Federalism and Municipal Broadband - Podcast

Telecommunications & Electronic Media Practice Group Podcast
Raymond L. Gifford March 21, 2016

On March 17th the United States Court of Appeals for the Sixth Circuit heard oral arguments in The State of Tennessee et al. v. FCC. This appeal involves a challenge to the FCC’s March 2015 order that preempted certain provisions of Tennessee and North Carolina state laws, which impose restrictions on the deployment of municipal broadband services. The Sixth Circuit will determine whether the FCC has the power to intervene and define the relationship between state and municipal governments when it comes to providing these services. Our expert discussed the FCC’s order, the parties’ arguments, and the takeaways from the oral argument.

Featuring:

  • Raymond L. Gifford, Wilkinson Barker Knauer LLP

New Jersey Doubles Down on Sports Betting - Podcast

Litigation Practice Group Podcast
Jonathan Wood March 10, 2016

The Professional and Amateur Sports Protection Act (PASPA) forbids any state (other than Nevada) from authorizing or licensing sports gambling. In striking down an earlier effort by New Jersey to legalize sports gambling, the Third Circuit interpreted this to bar states from giving affirmative authorization to engage in sports gambling, but allowing them to repeal their own sports-gambling prohibitions, in whole or in part. This qualification was necessary, the Third Circuit held, to avoid unconstitutionally commandeering the states. In the wake of that decision, New Jersey repealed its prohibitions to the extent that they apply to bets placed by those over 21 at casinos or race tracks. This too has been challenged under PASPA and oral argument in the case was heard by the Third Circuit, sitting en banc, on February 17, 2016. Our expert gave listeners background information on the case and reported on what transpired during oral argument.

Featuring:

  • Jonathan Wood, Staff Attorney, Pacific Legal Foundation

Federal Energy Regulatory Commission v. Electric Power Supply Association - Post-Decision SCOTUScast

SCOTUScast 2-17-16 featuring James Coleman
James Coleman February 17, 2016

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.