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October, 2000

Another Supreme Court Appearance
Mayer, Brown, Rowe & Maw LLP

Our pro bono program surfaced in the Supreme Court for the fifth time in recent years on 21 March when the Court heard argument in Dewey Jones v. United States, No. 99-5739.

The case involves the meaning and constitutionality of the federal arson statute, 18 U.S.C. 844(i), which makes it a crime, among other things, to use fire to damage or destroy a building that is "used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce." In 1995, the Supreme Court struck down a federal statute prohibiting gun possession near schools because the regulated activity had too insubstantial a connection to interstate commerce. United States v. Lopez, 514 U.S. 549.

That was the first time in nearly 60 years that the Court had upheld a challenge to a federal statute on the ground that the law exceeded Congress's power to regulate interstate commerce. The issue in Jones is whether, in light of Lopez, and the interpretive rule that constitutionally doubtful constructions should be avoided, Section 844(i) applies to the arson of a private residence, and, if so, whether its application to the private residence in this case is constitutional.

Don Falk argued the case and was assisted throughout by Sharon Swingle and law clerk Tim Lambert.

Since Lopez was decided, there had been literally hundreds of unsuccessful cert. petitions filed in criminal cases asking the Court to grant review, clarify Lopez, and invalidate a federal criminal statute as beyond Congress's Commerce Clause authority; some of these cases have involved the arson statute. There also has been substantial uncertainty about the scope of the arson statute, as federal prosecutors have obtained convictions for the burning of private residences, abandoned commercial buildings, and other buildings that have no apparent relationship to interstate commerce. Either directly or indirectly (in the course of a statutory interpretation), the case is likely to clarify the outer boundaries of Congress's power to regulate non-economic activity under the Commerce Clause.

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