A New York Times article this weekend explained that many U.S. Supreme Court decisions are altered after they have been published, sometimes quickly and other times much later. Article author Adam Liptak explains:
The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include “truly substantive changes in factual statements and legal reasoning,” said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.
The court can act quickly, as when Justice Antonin Scalia last month corrected an embarrassing error in a dissent in a case involving the Environmental Protection Agency.
But most changes are neither prompt nor publicized, and the court’s secretive editing process has led judges and law professors astray, causing them to rely on passages that were later scrubbed from the official record.
I have followed this particular change because of my interest in the EPA case, but I suspect this article is the first many people had heard of it. It makes some sense that articles would be fixed before going to final print, but the idea that opinions have been changed years later is rather remarkable to me, especially without some sort of formal notice. Now that we all know they can go back and fix opinions, though, I have one I’d like the court to revisit.
In 1992, the court heard Quill v. North Dakota, 504 U.S. 298, deciding that a state may not impose a tax collection obligation on a business that lacks a physical presence in the state. The court noted, though, that Congress could change that reality with legislation. In Quill, in declining to apply a bright-line rule, the court referred to an energy law case, Public Utils. Comm’n of R.I. v. Attleboro Steam & Elec. Co., 273 U.S. 83 (1927).
In Attleboro, that Court determined that a Rhode Island Commission order allowing an electricity seller to increase its price in a wholesale electric requirements contract between a Rhode Island utility (seller) and a Massachusetts utility (buyer) “place[d] a direct burden upon interstate commerce.” Id. at 84. The Court stated that neither state could regulate the interstate transaction because such regulation was only permissible at the federal level. This decision led Congress to pass the Federal Power Act (FPA), which was created (in part) to close what was dubbed the “Attleboro Gap.”
The U.S. Supreme Court has confirmed this more than once:
[T]he original FPA did a great deal more than close the gap in state power identified in Attleboro. The FPA authorized federal regulation not only of wholesale sales that had been beyond the reach of state power, but also the regulation of wholesale sales that had been previously subject to state regulation.”
New York v. FERC, 535 U.S. 1, 20-21 (2002) (citing Attleboro).
Similarly, in another case, the Court stated that the FPA
intended to “fill the gap”—the phrase is repeated many times in the hearings, congressional debates and contemporary literature—left by Attleboro in utility regulation. Congress interpreted that case as prohibiting state control of wholesale rates in interstate commerce for resale, and so armed the Federal Power Commission with precisely that power.
United States v. Public Utils. Comm’n of Cal., 345 U.S. 295, 307-08 (1953). (For a detailed description of Attleboro’s history, see Frank R. Lindh & Thomas W. Bone Jr.’s Energy Law Journal article, State Jurisdiction Over Distributed Generators (pdf here).
Returning to the Quill case, there Court stated:
Attleboro distinguished between state regulation of wholesale sales of electricity, which was constitutional as an "indirect" regulation of interstate commerce, and state regulation of retail sales of electricity, which was unconstitutional as a "direct regulation" of commerce.
Id. at 317. As I see it, this statement is wrong, though I admit I find this exerpt useful for getting students to discuss these concepts in Energy Law. Again, Attelboro held that direct regulation of retail sales was permissible, but that the regulation of interstate wholesale rates was not permissible by either state. As the cases above show, Quill did not change the state of the law, but Quill still mischaraterizes the law of Attleboro. So, this is my request: Should any Supreme Court Justices or their clerks (or others who can help) be reading the Business Law Prof Blog, please consider putting pen to paper and cleaning up Quill. Or, as Oscar Rogers likes to say, "Fix it!"