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Monthly Archives: May 2008

Friday morning docket: pro forma edition

Yesterday the justices of the Supreme Court met in conference, so decisions in some of the dozens of cases still yet to be decided this term will follow on Monday. Congress is all quiet, except for a few instances of pro forma gavel banging.

Meanwhile,

A bipartisan group of 20 U.S. attorneys filed court documents yesterday saying Congress must have the authority to demand answers from the Bush administration about whether U.S. attorneys were fired for political reasons. (AP)

After 22 years on death row, many appeals, and a U.S. Supreme Court decision questioning the evidence and testimony against him, Tennessee inmate Paul House will remain in jail until his retrial. (The Tennessean)

The Bush administration, bowing to a court order, has released a fresh summary of federal and independent research pointing to large, and mainly harmful, impact of human-caused global warming in the United States. (NYT)

With Congress out this week, the hottest news in Washington is Scott McClellan’s book. (WaPo).

A form of Magnetic Resonance Imaging called the “functional MRI,” or fMRI, is being marketed to lawyers and judges as the real deal in lie detection. The fMRI looks directly at brain functioning and its process is automated to reduce bias. (Lawyers USA)

AAJ calls Vioxx case a preemption cautionary tale

After two state appellate courts threw out verdicts against the drugmaker Merck & Co. in cases related to early trials involving the painkiller Vioxx today, the nation’s largest trial lawyers group said the cases highlighted the dangers of federal preemption.

In one of the cases, a New Jersey appeals court voided a punitive award of a patient taking the drug – which was pulled from the market after it was linked to heart attacks and strokes – saying the state’s Product Liability Act was pre-empted by the federal Food Drug and Cosmetic Act.

“The New Jersey decision underscores the danger of federal preemption – created by unelected regulators without the authority of Congress – which allows corporations to receive complete immunity and escape accountability even when they knowingly injure and endanger consumers with unsafe products,” said American Association for Justice President, Kathleen Flynn Peterson in a statement today. “Federal preemption allowed the court to ignore the verdict of a jury which heard all the evidence first hand.”

Court’s retaliation decisions raise questions

Employees who suffered adverse action after complaining about race discrimination have two new potential avenues for redress after yesterday’s Supreme Court decisions in Gomez-Perez v. Potter and CBOCS West v. Humphries.

In Gomez-Perez, the Court held that a federal employee who complains of age discrimination can bring a retaliation claim under the Age Discrimination in Employment Act – an option already available to private sector workers.

In CBOCS West, the Court extended the nation’s oldest civil right act, known as §1981, to protect workers who complain of race discrimination. The Court allowed a §1981 claim by a worker even where he could have filed a claim under Title VII, which gives retaliation protection to employees, but his claim was time-barred.

The reaction to the two decisions was swift, with some questioning whether the pro-employee decisions are a reaction to the string of pro-employer decisions last term.

The ACLU hailed the decisions. “Today’s decisions are appropriately grounded in the realities of the workplace,” said Steven R. Shapiro, National Legal Director of the ACLU said in a statement Tuesday. “Workers who fear retaliation are far less likely to report discrimination. Congress understood as much when it passed laws prohibiting employment discrimination based on race and age. By acknowledging that fact in its decisions today, the Court has protected workers and respected congressional intent.”

But U.S. Chamber of Commerce vice president Robin Conrad told the Associated Press that the Court’s repeated rulings against employers was puzzling, given Court’s pro-employer decisions last term, including  Ledbetter v. Goodyear Tire & Rubber, which was written by Justice Samuel Alito – who authored yesterday’s opinion in Gomez-Perez.

That decision was highly criticized, and a bill to overturn it was introduced – but ultimately defeated – in Congress.

“I would have to think there is some connection there because our batting average this term is pretty bad in labor and employment cases,” Conrad said.

Court’s retaliation decisions raise questions

Employees who suffered adverse action after complaining about race discrimination have two new potential avenues for redress after yesterday’s Supreme Court decisions in Gomez-Perez v. Potter and CBOCS West v. Humphries.

In Gomez-Perez, the Court held that a federal employee who complains of age discrimination can bring a retaliation claim under the Age Discrimination in Employment Act – an option already available to private sector workers.

In CBOCS West, the Court extended the nation’s oldest civil right act, known as §1981, to protect workers who complain of race discrimination. The Court allowed a §1981 claim by a worker even where he could have filed a claim under Title VII, which gives retaliation protection to employees, but his claim was time-barred.

The reaction to the two decisions was swift, with some questioning whether the pro-employee decisions are a reaction to the string of pro-employer decisions last term.

The ACLU hailed the decisions. “Today’s decisions are appropriately grounded in the realities of the workplace,” said Steven R. Shapiro, National Legal Director of the ACLU said in a statement Tuesday. “Workers who fear retaliation are far less likely to report discrimination. Congress understood as much when it passed laws prohibiting employment discrimination based on race and age. By acknowledging that fact in its decisions today, the Court has protected workers and respected congressional intent.”

But U.S. Chamber of Commerce vice president Robin Conrad told the Associated Press that the Court’s repeated rulings against employers was puzzling, given Court’s pro-employer decisions last term, including  Ledbetter v. Goodyear Tire & Rubber, which was written by Justice Samuel Alito – who authored yesterday’s opinion in Gomez-Perez.

That decision was highly criticized, and a bill to overturn it was introduced – but ultimately defeated – in Congress.

“I would have to think there is some connection there because our batting average this term is pretty bad in labor and employment cases,” Conrad said.

High court expands retaliation rights of action, upholds state appointment rule

The U.S. Supreme Court today ruled that federal employees can bring retaliation claims under the Age Discrimination in Employment Act, that employees can bring a retaliation claim under the Civil Right Act of 1866, now known as §1981, and that the governor of Alabama has the right to fill vacancies on the county commissions.

The opinions in Gomez-Perez v. Potter, CBOCS West v. Humphries, and Riley v. Kennedy can be found on the Court’s website.

More on Gomez-Perez and CBOCS on this blog later.

Congress recesses – well, not quite

While Congress is on a Memorial-week break this week, it will not be completely quiet on Capitol Hill. A handful of Democrats will be on duty – gaveling in and out in a matter of seconds to ensure that Congress does not officially go into recess.

Why? They are once again blocking President George W. Bush’s ability to make recess appointments - assignments to posts in absence of Congress. Though such recess appointments would only be good for a matter of months (until the end of the current administration) lawmakers have coordinated to put a stop to that practice last fall with its pro forma sessions.

“I’m willing to do it,” said Ohio Democrat Sen. Sherrod Brown Friday when he gaveled in and out while all his colleagues were out of town. “We’re not going to let them get away with that kind of abuse of power.”

Bush had made 165 recess appointments during his tenure when Congress began thwarting him last fall. By contract, President Bill Clinton made 140 recess appointments in eight years, President George H. W. Bush made 77 in four years, and President Ronald Reagan made 243 in eight years.

Other lawmakers are slated to hold pro forma sessions throughout the week to keep Congress from remaining inactive for more than three days.

Friday morning docket: Pre-Memorial Day edition

The justices of the Supreme Court met yesterday in conference, so new decisions and orders are on coming – but not until after the Memorial Day weekend. Congress is technically in session today but no meetings or hearings are scheduled. Sen. Edward Kennedy is relaxing and in good spirits on Cape Cod, which everyone sees as a good thing. And Americans are honoring the nation’s fallen soldiers at Washington’s World War II Memorial (pictured) and in other locations this long weekend. (Photo by Rick Latoff)

Meanwhile,

The House Judiciary Committee subpoenaed former White House adviser Karl Rove as part of its inquiry into the Bush administration’s alleged politically meddling in the Justice Department – allegations that rocked the Department over the last year and led to the resignation of former Attorney General Alberto Gonzales. (AP)

Meanwhile, the DOJ has a new Criminal Division chief. (BLT)

Congress held a hearing yesterday about the difficulties legal aid practitioners face in providing justice to low-income Americans. It was attended by one lawmaker, and two witnessed testified. (Talk Radio News Service)

So far this term, with 35 cases decided with full opinions, there has been only a single 5-to-4 decision handed down by the Supreme Court. The Times’ Linda Greenhouse explores why. (NYT)

President George W. Bush signed legislation this week designed to protect workers from losing their jobs or being denied health insurance based on DNA testing results that reveal their susceptibility to certain health conditions – and he praised Sen. Kennedy for his work in getting the law passed. (Lawyers USA)

This week a bipartisan majority of the Senate Banking Committee advanced a housing rescue plan earlier this week that would provide federally-backed loans to up to 500,000 struggling homeowners – funded by two of the country’s largest mortgage lenders (Lawyers USA)

For non-profit groups, when the tax man cometh next year, he’s going to want a lot more information about the organizations’ inner workings. (Lawyers USA)

Victor’s Secret is out

Victor and Cathy Moseley won a legal battle before the U.S. Supreme Court a few years, back, but they ultimately lost the legal war with the retail chain Victoria’s Secret.

In 2003, the Moseleys won a Supreme Court decision which threw out an injunction preventing the couple from using the names “Victor’s Secret” or “Victor’s Little Secret” for their lingerie and adult novelty store in Elizabethtown, Ky.

But last week a district court read the Federal Trademark Dilution Act as barring the couple from using the store names, ruling that the store names diluted Victoria’s Secret’s trademark value because the Moseleys sold racy things right along with its lacy things.

That court ordered the couple not to use the names.

“The use of the remarkably similar ‘Victor’s Secret’ or ‘Victor’s Little Secret’ in connection with the sale of intimate lingerie along with sex toys and adult videos tarnishes the reputation of the Victoria’s Secret mark,” wrote U.S. District Judge Charles Simpson.

In 2002 the couple changed the name of their store to “Cathy’s Little Secret.”

*NOTE: This version contains corrections from the original post, specifically: there was only one action by Victoria’s secret against the Moseleys, not two, and the Federal Trademark Dilution Act predeates the 2003 Supreme Court ruling. The original post was based on an account by the Associated Press.

Mukasey to get mixed reviews at BC?

The head of the Justice Department is usually the most sought-after law school commencement speaker in the country. But in the case of Attorney General Michael Mukasey – who is set to deliver the graduation day address at Boston College School of Law tomorrow – the audience won’t be entirely friendly.

That’s because Mukasey, several weeks after his January invitation to give the commencement speech at the school, was sent an un-invitation by two dozen faculty members who were upset with his refusal to label “waterboarding” as torture.

The professors told Mukasey in the March letter that his “role in the current controversy regarding the legality of waterboarding has made you a symbol of administration policies that conflict with basic principles of international and domestic law, the ideals of Boston College Law School, and the Jesuit principles that underlie Boston College’s educational mission.”

The letter drew national attention, with an editorial writer from the Wall Street Journal calling the move a “discourteous bit of political theater.”

That move came days after the Dean of Boston College Law School, John Garvey, declined to rescind Mukasey’s invitation, but said that the school would no longer bestow the honor of Founder’s Medal to commencement speakers – beginning this year with Mukasey.

All the brouhaha is documented on the school’s website for students, eagleionline.com.

Scalia to lawyers: leave the jokes to us

Just when DC Dicta thought Justice Antonin Scalia had said everything there is to say on appellate advocacy during his media tour promoting his new book Making Your Case: the Art of Persuading Judges, the latest issue of the ABA Journal landed on DC Dicta’s desk – giving us yet another tidbit.

This time, Scalia – who is not afraid to crack jokes from the bench - warned that attorneys probably shouldn’t try to be funny while arguing before the Supreme Court and other courts. After all, he said, if you’re going to flop, you don’t want to do it in front of judges deciding your case.

“The game is not worth the candle,” Scalia told the ABA Journal in a Q&A that appears in the May issue. “You may not be as good a humorist as you think, because appropriate humor takes a real sense of what you can get away with, what is condign for the circumstances. And not a lot of people have that feel. And secondly, not every judge has a sense of humor.”

“So, [the book's] advice is, don’t take a chance,” Scalia continued. “Oh, it can be effective on occasion. We say in the book sometimes when a lawyer does have this skill, with a very gentle and often self-deprecating remark can relieve the tension and make the exchange much more conversational and friendly.”

But if a judge is the one making a funny, word to the wise: Laugh.

“You should always, of course, display appropriate appreciation for any attempt at humor by the court,” Scalia said.

When asked what that meant, Scalia replied: “It means you should laugh at their jokes.”

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