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Monthly Archives: October 2007

The funniest justice: an update

Apparently not liking the feel of Chief Justice John G. Roberts, Jr. breathing down his neck in the comic contest, Justice Antonin Scalia turned up the funny this week, creating a solid lead to protect his title of “The Funniest Justice” so far this term.

According to official transcripts, as of the close of oral arguments this week, Scalia’s comical comments have caused the crowd in the Supreme Court to laugh nine times since the term began a month ago. Roberts is still in second place with five funny cracks. Justices John Paul Stevens and Stephen Breyer have each made four chuckle-worthy comments, while Justice David Souter has made three. Justice Anthony Kennedy has made the crowd giggle once. Ruth Bader Ginsburg has yet to crack a joke.

Justice Clarence Thomas is also not officially on the board, but he gets and asterisk here because although he has not made an official on-the-record statement since the October 2005 term, he kept Breyer in stitches Tuesday during oral arguments in the case U.S. v Williams, whispering and laughing with his bench neighbor several times.

Patent rule halted; continuations to continue

Breaking news in the world of patent law is rare, but it happened today.

GlaxoSmithKline scored a victory in its battle against new patent rules that were set to go into effect this week. A Virginia federal court granted the pharmaceutical company a preliminary injunction halting the new rules, which would have limited the number of times pending or rejected patent claims could be amended through “continuations.”  The Associated Press has more.

The rules had been adopted by the U.S. Patent and Trademark Office to “allow the USPTO to conduct a better and more thorough and reliable examination of patent applications,” the office said in a statement when the rules were announced in August. (See the Lawyers USA story on the rules here.)

But today “there was an audible sigh in the courtroom when Judge Cacheris said the rules were enjoined,” according to John White, patent professor at John Marshall Law School in Chicago and founder the Patent Law Institute’s Patent Bar Review Course, who provided the play-by-play of the hearing on PLI’s blog. The blog Patently-O has more here.

Missing pants, now missing job

He lost his pants, he lost his $54 million lawsuit, and now he has lost his job.

Roy Pearson, the Washington, DC administrative law judge who grabbed headlines by suing a local dry cleaner that lost his pants, claiming $54 million in damages – and lost - was dismissed from his bench post and ordered to clean out his locker, The Washington Post reports today.

This comes after the judicial committee in charge of reappointing judges in the Office of Administrative Hearings voted against offering Pearson a 10-year term.

According to the Post‘s source, the wacky pants lawsuit was not the basis for Pearson’s dismissal. The committee reasoned that Pearson did not possess “appropriate judgment and judicial temperament” for the job, was “combative,” and failed to follow proper opinion-drafting procedures.

Another execution stay

BREAKING: Less than 20 minutes before he was to be put to death, the U.S. Supreme Court stayed the execution of Mississippi death row inmate Earl Wesley Berry today, the latest in a series of executions halted by the nation’s highest court since the justices agreed to consider whether a three-drug injection cocktail used in Kentucky and other states is unconstitutional in Baze v. Rees. More on the Berry case here from Reuters.

The stay of execution for Berry was granted over the dissents of Justices Antonin Scalia an Samuel Alito. SCOTUSBlog has the order here. The stay will remain in effect until the Court either denies the petition for writ of certiorari or hands down a decision in the case.

You say potato, I say porn

Any time Justice Ruth Bader Ginsburg utters the phrase “hard-core porn” in open court, you know it was a good oral argument day.

Such was the case this morning, when the Supreme Court heard oral arguments in U.S. v. Williams – a case where the Justices will decide whether the “pandering” provision of the PROTECT Act, which criminalizes the possession and distribution of child pornography, is constitutionally overbroad and vague since it could be used to put people in prison for offering material that is computer generated, and doesn’t feature actual children at all. UPDATE: The transcript is now available on the Supreme Court’s website as a .pdf file here.

The justices turned to hypotheticals about popular mainstream films that feature simulated sexual activity involving minors to figure out if promoting such films could land the folks Netflix and Blockbuster in prison for 5 to 20 years under the statute, as the respondent claimed.

Ginsburg pointed to a review of the film “Lolita,” a story about a man who is seduced by his mate’s underage daughter. The review, she told U.S. Solicitor General Paul Clement, stated “this film shows a 12-year-old girl having sexual relations with an old man.”

“It is a truthful statement about ‘Lolita’ is it not?” Ginsburg asked Clement. Clement, once again demonstrating why he is far too busy arguing before the Court to serve as acting attorney general right now, said that such prosecution would be avoided since there is both an objective and subjectve standard of determining what a reasonable person would consider “child porn.”

So, he said, films such as “Lolita,” “American Beauty” (a story that involves a sex scene with a purported teenager), and “Traffic” (which includes a simulated sex scene by an actress who was actually 17 years old at the time) would not constitute material that could violate the law.

“I think what you said right there would fall under the objective test,” Clement told Ginsburg, but “I don’t think it [falls within] the subjective standard.”

UPDATE 2: A preview of the story in next week’s Lawyers USA can be found here

Judicial displays of tension

Supreme Court justices never waste an opportunity to deny the existence of any strain between the nation’s highest jurists, but sometimes tensions are hard to hide – even on the bench.

That was apparent during Monday’s oral arguments in the case of Ali v. Federal Bureau of Prisons, when Justice Stephen Breyer – who is known to occasionally ask questions that more resemble orations than queries – apparently irked fellow Justice Antonin Scalia.

In an attempt to understand the congressional intent behind an ambiguously-worded federal statute, Breyer said the following to Kannon K. Shanmugam, assistant to the solicitor general representing the government:

“I’m sitting in Congress,” Breyer said, “I read this statute, I think maybe they were talking about customs people and the like. Now, there is this other word in there, that’s true. So we look up, where does the other word come from? The other word comes from Judge [Alexander] Holtzoff. He explained it, we don’t have to guess. We can read his explanation. His explanation comes in a paragraph having to do with customs and excise, and beginning with, I’m talking about customs and excise, and the additional proviso as special reference, where they use this phrase, and then he says it’s all supposed to be like the Crown Proceedings Committee in England in 1927, which in fact had nothing to do with anybody but customs and excise.”

Apparently, Scalia grew impatient with Breyer’s question, and DC Dicta sensed more than a bit of irritation in Scalia’s voice as he interjected: “Do the members of Congress who voted on this language, when it was presented to them, did they even know who Judge Holtzoff was?”

After Shanmugam gave a few thoughts about the legislative intent, Breyer, visibly angered, shot back.

“I would suspect at that time Judge Holtzoff was a pretty well known person in the legal community and I would suspect … if we are guessing at such a thing that quite a few did know who he was,” Breyer said, his voice slightly raised. He was looking at Shanmugam but was clearly speaking to Scalia. “And I suspect that when Congress passes a technical bill, they are interested in the views of the Department of Justice and these were those views.”

“So if we are going to play a magic game that we don’t pay attention to what sheds light on it, fine, then we don’t,” Breyer added, ”but I would.”

We are sure it was all peace and make ups afterwards…

Battle of the Up & Comers

Last month Lawyers USA featured a number of Up & Coming Lawyers – folks with impressive, unique and otherwise notable legal careers who are less than a decade out of law school.

Today, two of those young guns went up against each other before the U.S. Supreme Court during oral arguments in the case Ali v. Federal Bureau of Prisons. The petitioner was represented by Jean-Claude Andre, while the government was represented by Kannon Shanmugam, assistant to the solicitor general.

Just because the attorneys are young doesn’t mean they don’t respect tradition. Mr. Shanmugam was dressed in coattails for oral argument, joining Clerk of the Court William K. Suter (who wears coattails every day) as the two formally dressed in the room.

Loss of a legend

Dc Dicta has just learned that a legal giant – the esteemed Harvard, Columbia and Boston University law professor Dr. Clark Byse – passed away earlier this month.

The news has a personal element for me because, like Supreme Court Justices Stephen Breyer and David Souter, I had the pleasure of being a law school student of Prof. Byse. Byse’s spry mind, witty sense of humor (he was 83 when I was a 1L in 1995), and genuine caring about his students made Contracts class at Boston University School of Law a highlight of my time there.

The Boston Globe has a nice write up about Byse’s extraordinary life here, although curiously it leaves out the fact that Byse is widely believed to be the inspiration for the character Prof. Charles Kingsfield in the novel and film “The Paper Chase.”

The story does include one of my favorite Clark Byse facts: how getting a mention in the film “Quiz Show” led him to reconnect with an old sweetheart from 50 years before – and then marry her.

Friday morning docket

Next week the Justices of the Supreme Court will return from their lecture tours and hear oral arguments in four cases. Click the case numbers for summaries care of Oyez.org.

Klein & Co. Futures, Inc. v. Board of Trade of the City of New York, 06-1265, deals with whether futures commission merchants have standing to sue under the Commodities Exchange Act. Monday at 10 a.m.

Ali v. Federal Bureau of Prisons, 06-9130, deals with whether a claim by a prisoner regarding missing personal items is barred by the Federal Tort Claims Act. Monday at 11 a.m.

United States v. Williams, 06-694, deals with whether the PROTECT ACT, designed to criminalize the possession and distribution of child pornography, is unconstitutionally overbroad and vague on its face, since it could ban material that does not actually feature children. Tuesday at 10 a.m.

Logan v. United States, 06-6911, deals with whether convictions that do not result in loss of civil rights are excluded from the three convictions necessary to activate the Armed Career Criminal Act’s sentence enhancement. Tuesday at 11 a.m.

Meanwhile, the White House said it will hand over surveillance program documents to the Judiciary Committee (NYT).

Waterboarding continues to present problems for AG nominee Michael Mukasey (AP).

New York Rep. Charles Rangel thinks the individual alternative minimum tax is a bad idea (Marketwatch).

John G. who?

 Simon Cowell, Paula Abdul, and Randy Jackson probably have a tough time going incognito in most places in this country, yet it seems that Chief Justice John G. Roberts, Jr., could wander the streets freely without being disturbed – even if his name were printed on his shirt.

That’s what a recent survey by the University of Pennsylvania’s Annenberg Public Policy Center revealed.

According to the survey, only one in seven Americans, about 15 percent, can name the Chief Justice of the United States. More than two-thirds, however, can name at least one judge from “American Idol.”

People polled in the survey didn’t seem to know much about how the Court works either. About 70 percent thought a Supreme Court decision could be appealed.

When asked about the effect of a 5-4 Supreme Court ruling, 14 percent thought the ruling would be sent to Congress for reconsideration. Seven percent thought the decision would be remanded to the lower courts, and 34 percent simply had no idea. Less than half knew such a decision became the law of the land.

To combat the lack of knowledge of the high court, the Annenberg Public Policy Center recently distributed books, DVDs and other materials about the Court to 27,000 schools around the country.

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