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One of the burning issues at the Supreme Court next term could be the scope and constitutionality of federal arson law, which derives its authority from the commerce clause of the Constitution. The issue is raised in Laton v. United States, No. 03-1266, a case that could have significant ramifications for both arson law and the commerce clause in the Court’s ongoing debate over federalism. It is one of dozens of cases up for review at the Court’s closed conference June 24 to determine whether to add to the fall term’s docket. The Court will also meet in a closed conference on June 17. Former Tennessee fire chief John Laton is accused of setting fire to and destroying his own fire station in Henning in 2000. In 2001, a federal grand jury indicted Laton on one count of arson in violation of a federal law that criminalizes burning a building “used in interstate commerce or . . . used in any activity affecting interstate commerce.” Laton argues the law is unconstitutional under the 2000 Supreme Court case Jones v. United States. The Court in Jones declared that because a private home does not have a substantial relationship with interstate commerce, the arson of such a structure cannot be prosecuted under federal law. Laton contends that a fire station, like a private residence, is not involved in interstate commerce. His petition, filed by Leslie Ballin of the Memphis law firm Ballin, Ballin & Fishman, insists that a broad interpretation of the arson statute would mean that “every structure in the country, with the exception of privately owned, owner-occupied dwellings, would be subject to federal prosecution.” A panel of the U.S. Court of Appeals for the 6th Circuit disagreed with Laton by a 2-1 majority, holding that the firehouse affected interstate commerce. “The presence of an active fire department in Henning . . . significantly impacts the insurance rates of all the businesses (and homes) in Henning, which in turn influences the commercial transactions of those businesses,” wrote Judge Karen Nelson Moore for herself and Judge Martha Daughtrey. Judge Jeffrey Sutton, a recent Bush appointee to the 6th Circuit, dissented. Before joining the bench, Sutton was a noted advocate for the states’ side of the federalism debate before the Supreme Court. In his dissent, Sutton asserted that the majority’s argument “has no logical stopping point. All governmental services affect commerce at some level, whether those services are legislative, executive or judicial.” The Court’s recent commerce clause decisions have tended to rein in congressional power, as in Jones and in the 2000 Violence Against Women Act case United States v. Morrison. These precedents suggest that Sutton’s dissent may be influential in the high court’s deliberations. In Laton’s petition to the Supreme Court, Ballin writes that the appeals court’s ruling “has made a reality of the fears expressed by [the] Court of an expansion” of federal law under the commerce clause. In response, Solicitor General Theodore Olson argues that the fire station does affect interstate commerce “in a variety of ways.” Examples include providing services to highways that affect interstate commerce, charging a fee for out-of-city calls, and purchasing equipment and other goods from out of state. OTHER CASES UP FOR REVIEW June 17 • Imperial County, Calif., Air Pollution Control District v. Sierra Club, No. 03-1334. The standard of judicial review for an Environmental Protection Agency order about the classification of a nonattainment area in California under the Clean Air Act. • Eagle Insurance Co. v. Bankvest Capital Corp., No. 03-1442. Under federal bankruptcy law, can a debtor or bankruptcy trustee assume an executory contract without assurance that it will cure any existing nonmonetary defaults? • Payne v. Riley, No. 03-1498. Whether a counsel’s decision not to call a witness at trial is entitled to less deference when the counsel did not interview the witness. June 24 • Higbee Co. v. Chapman, No. 02-1646. Whether the “full and equal benefit” clause of 42 U.S.C. §1981 applies to nongovernmental action. • 3M Co. v. LePage’s Inc., No. 02-1865. Can a larger company’s lower prices that lure customers from smaller competitors constitute a monopoly under the Sherman Act? • Bates v. Dow Agrosciences LLC, No. 03-388. Whether state law crop injury claims can be brought under the Federal Insecticide, Fungicide and Rodenticide Act. • Sherrill, N.Y. v. Oneida Indian Nation of New York, No. 03-855. Whether a municipality may collect taxes on land owned by the Oneida Indian Nation. • Dura Pharmaceuticals Inc. v. Broudo, No. 03-932. What evidence must a plaintiff produce to allege fraud on the market? • Hewlett-Packard Co. Employee Benefits Organization Income Protection Plan v. Jebian, No. 03-1202. Whether an employment benefits claim that is denied because of a technicality, such as passage of time, receives de novo judicial review. • University of Medicine and Dentistry of New Jersey v. Corrigan, No. 03-1339. Whether the inspector general of an executive agency may audit private entities, such as teaching hospitals, when there is no indication or allegation of abuse or fraud. • Baxter International Inc. v. United States, No. 03-1341. Definition of “self-insured plan” as used in the Medicare secondary payer statute; whether Medicare payments may be “conditioned on reimbursement” to the government under that statute. • DaimlerChrysler Corp. v. Ysbrand, No. 03-1342. Whether choice of law in class actions can be imposed on all class members no matter where they live, or whether class members have a right to sue under the law of the state where the sale of the goods occurred. • Chavez v. Martinez, No. 03-1381. Can a police officer who interrogated a hospitalized patient suffering from grave injuries without informing him of his Miranda rights claim qualified immunity? • Tenet v. Doe, No. 03-1395. Whether a former Soviet bloc diplomat and spouse may sue the Central Intelligence Agency for failure to keep its promise of financial support in exchange for spy services. • Hill v. Lockheed Martin Logistics Management Inc., No. 03-1443. Can an employer avoid liability under the Age Discrimination in Employment Act and Title VII of the Civil Rights Act by showing that the company official whose discriminatory actions are at issue was not the actual decision-maker who fired the employee? • Ashcroft v. Raich, No. 03-1454. Whether the Controlled Substances Act exceeds Congress’ power under the commerce clause when applied to intrastate cultivation and possession of marijuana for medical use. This column seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review or that raise significant national issues. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column.

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