In his dissent in Free Enterprise Fund v. PCAOB, Justice Stephen Breyer cited two articles published in the November 2009 issue of Vanderbilt Law Review En Banc. Chief Justice John Roberts wrote the majority opinion for himself and four justices; Justice Breyer was joined in his dissent by Justices Stevens, Ginsburg and Sotomayor.
The case involved a challenge by a free-enterprise group and a Nevada accounting firm to the constitutionality of the Public Company Accounting Oversight Board (PCAOB), whose members are appointed by the Securities and Exchange Commission. The plaintiffs asserted that the oversight board’s organization violated constitutional principles on separation of powers. The Supreme Court ruled 5-4 that the removal provisions were unconstitutional and severed the relevant portions of the Sarbanes-Oxley Act of 2002, which was passed in the wake of the Enron and WorldCom scandals to combat corporate accounting fraud.
In his dissent, Justice Breyer cited two articles published in Vanderbilt Law Review En Banc, the Law Review’s recently created online companion. Those two articles were “Bringing the Independence Agencies in from the Cold” by University of Colorado law professor Harold Bruff and “Putting Power Back into Separation of Powers Analysis: Why the SEC-PCAOB Structure Is Constitutional” by New York University law professor Richard H. Pildes. Justice Breyer cited Pildes’s article as “explaining further the comprehensive nature of the SEC’s powers,” and Bruff’s article as “noting that ‘Presidents do not test the limits of their power by removing commissioners.’”
The November 2009 issue of En Banc introduced a new feature called “Roundtable,” which was launched by the Vanderbilt Law Review specifically for the purpose of providing a forum for law professors and practitioners to debate significant, pending Supreme Court cases, according to Ryan Holt, who served as the Law Review‘s Editor-in-Chief in 2009-10. The En Banc edition devoted to PCAOB was the first “Roundtable,” and included short articles by Columbia University law professor Peter L. Strauss, Northwestern law professor Steven G. Calabresi, University of Pennsylvania law professor Christopher S. Yoo, and Boston University law professor Gary Lawson in addition to the articles by Bruff and Pildes.
“When we devised the idea of Roundtable in spring 2009, our greatest aspiration was that its articles might one day influence the workings of the Court,” Holt said. “None of us ever would have guessed, however, that our very first Roundtable would get cited by the Supreme Court—not once, but twice. It is a great accomplishment for our editors to discover and swiftly capitalize on this important niche of legal scholarship.”
“En Banc was the brainchild of a talented group of Law Review editors who included [2010 graduates] Mac Conforti, Ryan Holt and Andrew Gould,” Associate Dean Lisa Bressman, who recently completed a term as advisor to the Vanderbilt Law Review, said. “The PCAOB exchange marked the launch of En Banc Roundtable. From the start, it attracted the participation of some of the most distinguished constitutional theory scholars. I think the citations in Justice Breyer’s dissent confirm the usefulness of the format and the excellence of the pieces.”
Vanderbilt Law Review launched Roundtable to offer a more timely forum for scholarly debate on current legal issues with the benefit of shorter turnaround time afforded by online publication. “We hope these debates will allow for participants to voice their views in a scholarly forum while the law is simultaneously being made at the highest levels,” Holt said. The Fall 2010 Roundtable will feature the class-action case Dukes v. Wal-Mart.