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Monthly Archives: September 2008

Hot new practice area: Financial crisis law!

While many Americans have spent the last week looking at their portfolios and weeping, the financial crisis has been an opportunity for some law firms – firms that created new practice areas to help those who are looking at their portfolios and weeping.

As the week began, before lawmakers had finished working out the first of what would be several plans aimed at saving the nation’s financial institutions from failing, law firms like Gibson, Dunn & Crutcher began announcing the formation of specialty groups. Gibson is dedicating 35 partners to help clients understand how the plan will affect them, the firm announced Monday.

Also on Monday, Fried, Frank, Harris, Shriver & Jacobson announced the formation of its financial services task force, as well as a “a series of roundtable briefings” at their New York offices, beginning Wednesday.

And according to an ABA Journal piece, Gibson and Fried are far from alone. Bracewell & Giuliani, Akin Gump Strauss Hauer & Feld, K&L Gates, and Mayer Brown have also started new multidisciplinary groups dedicated to the financial fallout.

Thomas credits Holmes’ wisdom to Hendrix

The start of oral arguments at the U.S. Supreme Court is just a few days away. People who have seen oral arguments before the high court know that there are two things you can count on: (1) Justice Antonin Scalia speaking a lot (and probably saying something funny) and (2) Justice Clarence Thomas saying absolutely nothing.

Thomas was asked about his silence on the bench at a lecture earlier this month at Pepperdine University School of Law. After chiding other justices for talking far too much, Thomas used the example of a student who recently visited the Court to explain the virtue of silence. When Thomas asked the student why she was so quiet, she replied: “Well, wisdom listens and knowledge speaks.”

“I said, ‘Woo! That’s pretty good!” Thomas said, drawing laughs from the crowd. “So I scooted out and checked it out on the internet and found out it was Jimi Hendrix!”

Well, DC Dicta checked the internet as well, and discovered that Hendrix did indeed once say: “Knowledge speaks, but wisdom listens.”

But Hendrix took the sentiment from someone else: Oliver Wendell Holmes, Sr. – father of Supreme Court Justice Oliver Wendell Holmes, Jr. The elder Holmes said: “It is the province of knowledge to speak and it is the privilege of wisdom to listen.”

Here is video of the remarks – and a chance for you to hear what his voice sounds like.

YouTube Preview Image

By the way, the questioner is Ken Starr, dean of the law school (perhaps better known as the author of the Starr Report).

Thomas credits Holmes’ wisdom to Hendrix

The start of oral arguments at the U.S. Supreme Court is just a few days away. People who have seen oral arguments before the high court know that there are two things you can count on: (1) Justice Antonin Scalia speaking a lot (and probably saying something funny) and (2) Justice Clarence Thomas saying absolutely nothing.

Thomas was asked about his silence on the bench at a lecture earlier this month at Pepperdine University School of Law. After chiding other justices for talking far too much, Thomas used the example of a student who recently visited the Court to explain the virtue of silence. When Thomas asked the student why she was so quiet, she replied: “Well, wisdom listens and knowledge speaks.”

“I said, ‘Woo! That’s pretty good!” Thomas said, drawing laughs from the crowd. “So I scooted out and checked it out on the internet and found out it was Jimi Hendrix!”

Well, DC Dicta checked the internet as well, and discovered that Hendrix did indeed once say: “Knowledge speaks, but wisdom listens.”

But Hendrix took the sentiment from someone else: Oliver Wendell Holmes, Sr. – father of Supreme Court Justice Oliver Wendell Holmes, Jr. The elder Holmes said: “It is the province of knowledge to speak and it is the privilege of wisdom to listen.”

Here is video of the remarks – and a chance for you to hear what his voice sounds like.

YouTube Preview Image

By the way, the questioner is Ken Starr, dean of the law school (perhaps better known as the author of the Starr Report).

Supreme preview: More on the West Virginia cases

This term, the U.S. Supreme Court could take up a trio of cases arising out of the rather unconventional state judicial system in West Virginia.

In two of the cases, the state’s highest court – and its only appellate court – denied petitions to review two nine-figure jury awards that included punitive damages in the hundreds of millions of dollars. In a third, the high court reversed a $50 million jury verdict against a coal mining company, but the deciding vote was cast by a judge whose campaign was largely funded by the company’s CEO.

Now the losing parties are asking the nation’s highest court to take up the cases, alleging due process violations. See the full story here on Lawyers USA.

There is an interesting side note to the story: after review was denied by the West Virginia Supreme Court of Appeals of in the first two cases, the court received a lot of press. Interestingly, the court last week did grant review of another multi-million-dollar jury verdict – this one against DuPont in a class action case alleging health violations at a smelting plant. (More here on that case from The Charleston Gazette).

It is unclear whether that appeal grant had anything to do with the reaction to the previous review denials or resulting certiorari petitions, but attorneys – including Jeffrey V. Mehalic, a Charleston litigator and appellate attorney who writes the West Virginia Business Litigation blog – note the possibility. “I’m not going to read too much into the court accepting DuPont’s appeal,” Mehalic said. “I will tell you that the court has gotten quite a bit of pressure as a result of the not accepting Tawney and the Wheeling-Pittsburg appeals.”

The cases were not among the petitions considered in the Court’s first conference yesterday. The justices are expected to decide whether to take up the cases by December.

Mukasey appoints special prosecutor to probe U.S. attorney firings

Just hours after a report released Monday morning by the Department of Justice found “significant evidence” that the motivation behind the firings of nine U.S. attorneys in 2006 was political, Attorney General Michael Mukasey followed one of the report’s recommendations and appointed a special prosecutor to probe the matter.

Acting U.S. Attorney Nora R. Dannehy will investigate whether crimes were committed in connection with the removal of the U.S. Attorneys, Mukasey said today.

“The Report leaves some important questions unanswered and recommends that I appoint an attorney to assess the facts uncovered, to conduct further investigation as needed, and ultimately to determine whether any prosecutable offense was committed with regard to the removal of a U.S. Attorney or the testimony of any witness related to the U.S. Attorney removals,” Mukasey said in a statement announcing Dannehy’s appointment.

The report by DOJ Inspector General Glenn Fine and Office of Professional Responsibility Director H. Marshall Jarrett, which can be found here, stated that former Attorney General Alberto Gonzales will not face a grand jury over his role in the firings. It did note, however, that Gonzales “bears primary responsibility for the flawed U.S. Attorney removal process and the resulting turmoil that it created.”

“This was not a simple personnel matter that should be delegated to subordinate officials – it was an unprecedented removal of a group of high-level Department officials that was certain to raise concerns if not handled properly,” the report stated. “Such an undertaking warranted close supervision by the Attorney General, as well as the Deputy Attorney General [Paul J. McNulty]. Gonzales did not provide such supervision, nor did he ensure that the Deputy Attorney General provided the necessary oversight.”

More on the report here from Lawyers USA.

Up-and-comer Shanmugam leaves DOJ for private practice

SCOTUSblog is reporting that Kannon Shanmugam, the assistant to the Solicitor General who was hailed as one of Lawyers USA‘s “Up & Coming Lawyers of 2007” for his winning record before the Supreme Court, is leaving the Department of Justice after four years. During his time in the SG’s office, he won six of the eight cases he argued before the high court – all before reaching the age of 35.

Shanmugam will become a partner at Williams & Connolly on Oct. 6 – the day the U.S. Supreme Court begins oral arguments for the term. More here from the firm’s website.

Monday status conference: Let OT ’08 begin!

While the the financial bailout deal reached in Congress dominates the news, today is a big day for another Washington institution – the Justice of the U.S. Supreme Court officially kick off the October 2008 Term today by holding their first private conference. Among the cases the justice will consider today is that of Georgia death row inmate Troy Anthony Davis, who was granted a last-minute stay by the Court last week pending his petition. Also today the Court will consider whether to rehear Kennedy v. Louisiana, where the Court invalidated the death penalty for child rape. More here from SCOTUSBlog on the cases that the justices will tackle today. Stay tuned to DC Dicta for news coming out of today’s conference.

Meanwhile,

Jumping out of the pool: Justice Samuel Alito is opting out of the “cert. pool” this year, and will instead have his own clerks review the petitions for cert-worthiness. He joins Justice John Paul Stevens in his decision to stay poolside. (Legal Times)

Scalia is a judicial activist? That is what Judges J. Harvie Wilkinson of the 4th Circuit Court of Appeals and Richard Posner of the 7th Circuit Court of Appeals say about Justice Antonin Scalia’s opinion last term in D.C. v. Heller, in which the Court narrowly struck down the city’s handgun ban.  (AP)

Administrative fix-it plan: The Federal Trade Commission has proposed new rules to improve and streamline enforcement actions tried before administrative law judges. (National Law Journal)

Cash strapped and (In-)House poor? Corporate legal departments are cutting back, reducing the number of in-house lawyers they employ and slowing the pace of spending on outside firms. (Legal Blog Watch)

Monday status conference: Let OT ’08 begin!

While the the financial bailout deal reached in Congress dominates the news, today is a big day for another Washington institution – the Justice of the U.S. Supreme Court officially kick off the October 2008 Term today by holding their first private conference. Among the cases the justice will consider today is that of Georgia death row inmate Troy Anthony Davis, who was granted a last-minute stay by the Court last week pending his petition. Also today the Court will consider whether to rehear Kennedy v. Louisiana, where the Court invalidated the death penalty for child rape. More here from SCOTUSBlog on the cases that the justices will tackle today. Stay tuned to DC Dicta for news coming out of today’s conference.

Meanwhile,

Jumping out of the pool: Justice Samuel Alito is opting out of the “cert. pool” this year, and will instead have his own clerks review the petitions for cert-worthiness. He joins Justice John Paul Stevens in his decision to stay poolside. (Legal Times)

Scalia is a judicial activist? That is what Judges J. Harvie Wilkinson of the 4th Circuit Court of Appeals and Richard Posner of the 7th Circuit Court of Appeals say about Justice Antonin Scalia’s opinion last term in D.C. v. Heller, in which the Court narrowly struck down the city’s handgun ban.  (AP)

Administrative fix-it plan: The Federal Trade Commission has proposed new rules to improve and streamline enforcement actions tried before administrative law judges. (National Law Journal)

Cash strapped and (In-)House poor? Corporate legal departments are cutting back, reducing the number of in-house lawyers they employ and slowing the pace of spending on outside firms. (Legal Blog Watch)

ADA Amendments Act becomes law

It was President George H. W. Bush who signed the Americans with Disabilities Act into law in 1990. Yesterday, he watched his son, President George W. Bush, expand that law’s coverage by signing the ADA Amendments Act.

The new law will broaden the number of people who are considered disabled under the ADA. 

The Act overturns the 1999 “Sutton Trilogy” of Supreme Court cases, which said that the determination of whether an individual has a “substantial impairment” must be made while taking into account the use of any medications, corrective lenses, hearing aids or other corrective measures.

The new law also overturns the 2002 case of Toyota v. Williams, 534 U.S. 184, in which the Court construed the term “substantially limits” to mean “considerable” or “to a large degree,” thereby precluding impairments that interfere in only a minor way with performing tasks from being covered by the ADA.

Friday Focus: Supreme do-over?

The U.S. Supreme Court officially kicks off the October 2008 term Monday when the justices hold a private conference to consider taking up a number of cases. During the Court’s term, each Friday DC Dicta will take a closer look at a particular topic, case, or petition before the Court to examine the issues and blogosphere buzz around it.

Today’s topic is the petition before the Court to reconsider it’s ruling last term in Kennedy v. Louisiana, where the justices held that the death penalty can not be imposed for the offense of child rape.

As widely reported, the state of Louisiana is urging the Court to rehear the case because the first time around, all the parties involved – as well and the Court’s own law clerks – somehow overlooked a military law provision that allows the death penalty in cases of child rape. The Court had based its decision in Kennedy in part on the absence of other laws that make child rape a capital offense.

On Wednesday the last the briefs were filed in the case. As summarized by SCOTUSBlog’s Lyle Denniston, the reply brief from the state of Louisiana urged the Court not to reply simply upon its independent judgment, arguing that “that Congress and the state legislatures are entitled to their say, too.”

Corey Rayburn Yung, Assistant Professor of Law at John Marshall Law School, was not impressed by the latest brief. “The Louisiana brief is full of overstatements and fails to offer any middle ground,” he wrote on his Sex Crimes blog. “That is not surprising for a partisan brief. However, I think the state does its arguments a disservice by being so strident and ignoring weaknesses in its arguments.”

But military justice blog CAAFlog disagreed. “[T]he brief engages in nuance discussion of military law reflecting great familiarity with the system. In one passage sure to warm any military litigator’s heart, Louisiana reminds the Supremes that their predecessors on the bench relied in part on the UCMJ when deciding Miranda.”

Sentencing Law and Policy blogger Prof. Douglas Berman doesn’t think the Court is going to reinvent the wheel on this one. “I continue to predict that the Supreme Court will ultimately deal with all these issues through an amended opinion that adds discussion of military law, but does not change the sum or substance of the Kennedy ruling,” Berman wrote.  “But, then again, who knows what mischief might lie in the hearts of Justices in Kennedy.”

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