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Monthly Archives: January 2008

Friday morning docket: Supremes on tour

Today all’s quiet at the U.S. Supreme Court. The justices are next scheduled to conference on Feb. 15, and the next oral arguments will take place Feb. 19.

That gives the justices plenty of free time to hit the road for speaking engagements!

Justice Stephen Breyer said that people used to sometimes ignore the Supreme Court, but now they don’t – even when they disagree with its decisions. Case-in point: Bush v. Gore. “The day after that came down, people said, ‘OK, we disagree with that,’ … but (there was) virtually no difference of opinion about what should be done. We’ll follow it,” Breyer told students at the University of Oklahoma. (Norman Transcript)

Justice Ruth Bader Ginsburg and Baroness Brenda Hale – the first woman to join the British House of Lords as a Lord of Appeal in Ordinary – chatted about their experiences as women in their countries’ top judicial posts at Georgetown University. (Both had issues with access to ladies’ rooms in the beginning). But Hale noted a big general difference between their countries’ high courts – the duty of law clerks. “They never, ever, ever write our judgments,” Hale said. “Never ever.” (The Hoya)

Justice Antonin Scalia hit Mississippi State University, where he told the crowd that the Supreme Court justices make law, not moral judgments – even in cases involving morally-charged issues like abortion. “Even if there were scientific right answers, there would be no reason to believe that law-trained professionals could discern those answers better than say medical doctors or engineers or ethicists or Mr. Joe Six Pack,” Scalia said. (Hattiesburg American).

We wonder if the justices are making the talk junkets (which often come with sizeable honorariums) in part because a new study shows no link between judicial pay raises and boosted performance. That report puts a dent in Chief Justice John Roberts, Jr.’s push to boost federal judges’ pay. (FP)

EPA defends waiver denial to lawmakers

Today the head of the Environmental Protection Agency defended the agency’s decision to deny a waiver that California and a dozen other states asked for, which would have allowed them to implement tougher greenhouse gas emissions standards.

Testifying before a Senate Environment and Public Works Committee panel today, EPA Administrator Stephen L. Johnson said: “I am bound by the criteria in the Clean Air Act, not people’s opinions.”

“The Clean Air Act does not require me to rubberstamp waiver decisions,” Johnson said. “It was my conclusion that California didn’t meet the criteria, or at least all of the criteria.”

The Committee is investigating the agency’s decision to deny the waiver, and California filed a lawsuit challenging the EPA’s waiver denial. Committee chairwoman Sen. Barbara Boxer blasted Johnson during today’s hearing.

“You’re going against your own agency’s mission and you’re fulfilling the mission of some special interests,” she said.

But ranking Republican member Sen. James Inhofe defended the agency. “I think that the Energy bill just passed means that Congress has already spoken to this issue,” he said. “That law represents the will of Congress on fuel economy standards. If California legislators thought otherwise, why did not one of them offer an amendment to address the issue?”

Waterboarding, firings back on Mukasey’s plate

If Attorney General Michael Mukasey thought his confirmation would bring an end to questions about waterboarding and the brouhaha over the fired federal prosecutors during his predecessor’s tenure, he’d better think again.

The Justice Department is apparently bracing for potentially explosive information to be uncovered from federal probes of the firings nine U.S. attorneys, according to The Hill (via the ABA Journal). Sources tell the Capitol Hill newspaper that investigations by the Inspector General’s office and the Office of Professional Responsibility may reveal evidence of witness tampering, perjury, obstruction of justice and politically motivated actions – all in time for this year’s election season!

“Arguably it’s the most significant investigation OPR and OIG have done in a generation, or maybe ever,” said David Iglesias, a former U.S. attorney in New Mexico who was among the nine fired prosecutors.

Meanwhile, Sen. Edward Kennedy is not ready to let the waterboarding issue go. The lawmaker sent a letter to Mukasey today again asking him to explain his position on the interrogation technique.

Mukasey was pressed on the issue during his conformation hearings, but Kennedy said he still is unclear on where the attorney general stands.

“On October 30, you responded that waterboarding and other abusive techniques ‘seem over the line or, on a personal basis, repugnant to me,’” stated the letter from Kennedy, also signed my nine of his colleagues. “You said that you could not offer an opinion on the legality of waterboarding based on ‘hypothetical facts and circumstances’. . . however, you committed that, ‘if confirmed I will review any coercive interrogation techniques currently used by the United States Government and the legal analysis authorizing their use to assess whether such techniques comply with the law.’”

“It has been over two months since then,” the letter continued, “ample time for you to study this issue and reach a conclusion.”

You can read the full text of the letter after the jump.

Read More »

Waterboarding, firings back on Mukasey’s plate

If Attorney General Michael Mukasey thought his confirmation would bring an end to questions about waterboarding and the brouhaha over the fired federal prosecutors during his predecessor’s tenure, he’d better think again.

The Justice Department is apparently bracing for potentially explosive information to be uncovered from federal probes of the firings nine U.S. attorneys, according to The Hill (via the ABA Journal). Sources tell the Capitol Hill newspaper that investigations by the Inspector General’s office and the Office of Professional Responsibility may reveal evidence of witness tampering, perjury, obstruction of justice and politically motivated actions – all in time for this year’s election season!

“Arguably it’s the most significant investigation OPR and OIG have done in a generation, or maybe ever,” said David Iglesias, a former U.S. attorney in New Mexico who was among the nine fired prosecutors.

Meanwhile, Sen. Edward Kennedy is not ready to let the waterboarding issue go. The lawmaker sent a letter to Mukasey today again asking him to explain his position on the interrogation technique.

Mukasey was pressed on the issue during his conformation hearings, but Kennedy said he still is unclear on where the attorney general stands.

“On October 30, you responded that waterboarding and other abusive techniques ‘seem over the line or, on a personal basis, repugnant to me,’” stated the letter from Kennedy, also signed my nine of his colleagues. “You said that you could not offer an opinion on the legality of waterboarding based on ‘hypothetical facts and circumstances’. . . however, you committed that, ‘if confirmed I will review any coercive interrogation techniques currently used by the United States Government and the legal analysis authorizing their use to assess whether such techniques comply with the law.’”

“It has been over two months since then,” the letter continued, “ample time for you to study this issue and reach a conclusion.”

You can read the full text of the letter after the jump.

Read More »

High court denies Enron investors’ petition

If the class of Enron investors suing the banking firms associated with the company were worried by last week’s decision in Stoneridge Investment Partners, they had reason to be.

Today, the U.S. Supreme Court denied their bid to proceed against the bankers from firms including Merrill Lynch and Credit Suisse Group. The order, a PDF file, can be found on the Court’s website here.

A day after the opinion in Stoneridge was handed down, Enron investors, citing “critical differences between Enron and Stoneridge,” petitioned the Supreme Court to distinguish the holding so as not to bar their pending securities lawsuit seeking billions from the Wall Street banking firms they say colluded with Enron officials leading up the company’s collapse in 2001. (The case is California Regents v. Merrill Lynch, 06-1341)

The 5th U.S. Circuit Court of Appeals had barred the case from proceeding as a class-action securities suit. The investors sought review from the Supreme Court, which put the request on hold until the Stoneridge case was decided.

In a petition and supplemental brief filed with the Supreme Court Wednesday – the day after the Stoneridge decision was handed down – the Enron investors tried to distinguish their case from the parameters of the Stoneridge holding.

“This Court’s decision in Stoneridge demonstrates critical differences between Enron and Stoneridge,” stated the investors’ supplemental brief in California Regents. “Stoneridge holds that the §10(b) right of action does not reach ordinary customer/supplier companies when their partners in ordinary business relations subsequently account improperly for the transactions entered between or among them. It does not rule out liability for fraud by financial professionals that is directed at securities transactions, i.e., transactions structured and designed to make quarterly and year-end numbers.”

In their reply brief, the banking firms claim that Stoneridge affirms that the suit should be barred, and calls the allegations in the complaint a “legal contrivance that attempts to string together scores of acts by Enron” and tie those acts to numerous third parties.

The Court denied certiorari today, effectively ending the case.

Today the Court also issued an opinion, holding that prison guards fall within the “law enforcement officer” exemption to the Federal Tort Claims Act, and therefore may assert sovereign immunity in Ali v. Federal Bureau of Prisons [PDF file].

High court denies Enron investors’ petition

If the class of Enron investors suing the banking firms associated with the company were worried by last week’s decision in Stoneridge Investment Partners, they had reason to be.

Today, the U.S. Supreme Court denied their bid to proceed against the bankers from firms including Merrill Lynch and Credit Suisse Group. The order, a PDF file, can be found on the Court’s website here.

A day after the opinion in Stoneridge was handed down, Enron investors, citing “critical differences between Enron and Stoneridge,” petitioned the Supreme Court to distinguish the holding so as not to bar their pending securities lawsuit seeking billions from the Wall Street banking firms they say colluded with Enron officials leading up the company’s collapse in 2001. (The case is California Regents v. Merrill Lynch, 06-1341)

The 5th U.S. Circuit Court of Appeals had barred the case from proceeding as a class-action securities suit. The investors sought review from the Supreme Court, which put the request on hold until the Stoneridge case was decided.

In a petition and supplemental brief filed with the Supreme Court Wednesday – the day after the Stoneridge decision was handed down – the Enron investors tried to distinguish their case from the parameters of the Stoneridge holding.

“This Court’s decision in Stoneridge demonstrates critical differences between Enron and Stoneridge,” stated the investors’ supplemental brief in California Regents. “Stoneridge holds that the §10(b) right of action does not reach ordinary customer/supplier companies when their partners in ordinary business relations subsequently account improperly for the transactions entered between or among them. It does not rule out liability for fraud by financial professionals that is directed at securities transactions, i.e., transactions structured and designed to make quarterly and year-end numbers.”

In their reply brief, the banking firms claim that Stoneridge affirms that the suit should be barred, and calls the allegations in the complaint a “legal contrivance that attempts to string together scores of acts by Enron” and tie those acts to numerous third parties.

The Court denied certiorari today, effectively ending the case.

Today the Court also issued an opinion, holding that prison guards fall within the “law enforcement officer” exemption to the Federal Tort Claims Act, and therefore may assert sovereign immunity in Ali v. Federal Bureau of Prisons [PDF file].

Monday status conference: the holiday-late edition

Yes, we know it’s not Monday – but it is the beginning of the holiday-delayed workweek for many (including DC Dicta), and we hope you all spent yesterday reflecting on Dr. King’s legacy.

Meanwhile,

Friday afternoon was a busy one for the Supreme Court. Not only did the justices take a pass on presidential candidate Dennis Kucinich’s request for help with his Texas situation, the took a look at a petition filed by a class of investors who lost more than $1 billion in the Enron scandal. In the filing by petitioners in California Regents v. Merrill Lynch, 06-1341, the investors seek to distinguish themselves from the holding in Stoneridge, saying civil actions against financial actors should be allowed under the Securities Exchange Act. The Court took up the matter during its conference Friday, and could decided whether to grant the writ of certiorari as early as today.

The Court also granted certiorari in six cases, including an employment discrimination case asking whether the anti-retaliation provision of Title VII of the 1964 Civil Rights Act protects a worker from dismissal because she cooperated with her employer’s internal investigation of sexual harassment. Crawford v. Metropolitan Government of Nashville, No. 06-1595. More here from the AP.

The Court also agreed to decide whether smokers of cigarettes marketed as “light” could sue the makers for deception on the grounds that they were just as harmful as regular cigarettes. That case is Philip Morris v. Good, No. 07-562. More here from AFP.

The Court will consider whether an employee alleging disparate impact under the ADEA bears the burden of persuasion on the “reasonable factors other than age” defense in Meacham v. Knolls Atomic Power Laboratory, No. 06-1505

The Court decided to take up the issue of whether a claim administrator of an ERISA plan who also funds the plan benefits creates a “conflict of interest,” and if so how should that conflict be taken into account on judicial review of a discretionary benefit determination in Metlife et al. v. Glenn, No. 06-923.

More on Friday’s orders in this nifty roundup, complete with links to filings, here on SCOUTSBlog.

Friday morning docket: Always on my mind

Good morning. The U.S. Supreme Court will have a conference session today. Perhaps the justices will consider a plea by Democratic presidential candidate Dennis Kucinich and singer-supporter Willie Nelson, who yesterday asked the high court to allow the candidate to participate in the Texas primary without signing the state’s Democratic Party’s oath to support the eventual Democratic nominee. UPDATE: The Court declined to step in. You can see the order here. The Court will then be out of session for a couple of weeks, allowing the justices to get on the road again. The next scheduled oral arguments will take place on Feb. 19.

Meanwhile,

The Court is considering whether to expand or contract the rights of patent holders. (Reuters)

The nation’s biggest verdicts keep getting smaller. (Lawyers USA)

The desire to beat a fee increase and to vote in this year’s election resulted in a flood of immigration applications last year, and Congress told the White House that it should have seen that coming. (AP via Yahoo! News)

Federal Reserve Chairman Ben Bernanke to Congress and the White House: Feel free to jump in and help here. (WaPo).

House lawmakers condemn assassination of former Pakistan Prime Minister Benazir Bhutto. (AFP)

Embattled Idaho Sen. Larry Craig has a new ally in his quest to withdraw his guilty plea: the ACLU! (Minnesota Lawyer Blog)

Remember those income tax rebate checks everyone got back in 2001? President Bush wants to do it again. (AP)

Miguel Tejada to become the next Barry Bonds? (AP via Yahoo! News)

Handgun ban case boils down to a comma?

Will the determination of whether Washington D.C.’s handgun ban violates the Second Amendment come down to the interpretation of a comma?

Among the plethora of amicus briefs filed last week in the pending Supreme Court case of D.C. v. Heller is one from a group of linguistics and English professors, who say that a comma in the wording of the second Amendment proves that the Constitution’s framers intended for the rule to protect the right of militia members  – not non-militia citizens – to bear arms, and therefore the Court of Appeals erred in striking down the law.

According to the 39-page brief, which can be found here on the American Bar Association’s website, the comma in question (the one between “security of a free State” and “the right of the people”) separates an absolute clause from the main clause.

Understand that? Neither do we, but here’s the gist of the professors’ claim: the punctuation in the Second Amendment’s language shows that keeping a well-armed militia was not merely one purpose for the Amendment, it was the purpose for the Amendment. Therefore, the professors argue, banning the possession of handguns for non-militia use is perfectly constitutional and the gun ban should be upheld.

DC Dicta asks: When will Thomas break his silence?

“So I don’t quite understand where Gay, which is subsequent to — to this case — where Gay comes in because it didn’t seem to be the standard that the trial court applied.”

That’s the last thing Justice Clarence Thomas said from the bench on Feb. 22, 2006 during oral arguments in the case Holmes v. South Carolina - and the last time the justice has said anything from the bench.

If Thomas keeps mum through the next two scheduled days of oral argument this term, Feb. 19 and 20, that will bring the length of his silent streak to two full years.

Even on cases where DC Dicta thought Thomas might chime in – such as the Nov. 6, 2007 oral arguments in Federal Express Corp. v. Holowecki, when Justice Antonin Scalia berated the Equal Employment Opportunity Commission (which was once helmed by Thomas), the justice remained silent, except for off-the-record whispering with his bench neighbor Justice Stephen Breyer.

So we now turn to our readers for predictions. When do you think Thomas will speak? Is there a particular pending case or subject matter he’s likely to chime in on? What do you think he will say? Give us your thoughts in the comments field below. Feel free to have fun with this one.

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