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Monthly Archives: September 2008

Cameras, term limits, and a rotating chief on the Supreme Court?

What might the U.S. Supreme Court look like in the future? An upcoming ABA Journal piece by Richard Brust ponders how changes like cameras in the courtroom, justice term limits, and rotating the chief justice could change the way the high court looks and works.

Although the imaginary picture the article paints of a future Court with mandatory retirement, obligatory circuit riding, and live television coverage of justices who were formerly U.S. senators, governors, and legal practitioners may seem fanciful, they represent real proposals by critics of the current system. The Court, they say, needs to keep up with the times, and that may require a little shakeup in the way it does things.

“The system is no longer working the way it has in American history,” says Northwestern University law professor Steven G. Calabresi in the article. “Given that the amount of power that justices wield is increasing, the issue is a substantial one. The fact is that justices are serving longer and vacancies occur less frequently. So the stakes are higher.”

Dellinger: reproductive rights big issue for next administration

Walter Dellinger, veteran Supreme Court litigator and  former U.S. solicitor general, said yesterday that although reproductive rights has not been a big discussion topic so far in the presidential campaign, it is an issue that will certainly loom large in the next presidential administration.

The likelihood that the next president will like appoint at least one Supreme Court justice in his first term is rather high, and the last time the Court took on the issue – in the October 2006 term – it resulted in a 5-4 split upholding a state ban on so-called partial birth abortion.

Still the issue has not been an election-year lightning rod, in part due to a collective belief among experts that Roe v. Wade is unlikely to be overturned, no matter who wins the election.

But yesterday, at a Supreme Court discussion panel hosted by the American Constitution Society for Law and Policy, Dellinger said of the notion that Roe is completely safe: “I think that is profoundly and fundamentally wrong.”

“I think people don’t realize how much is at stake,” he said.

The addition of another justice on the bench – depending on whether the justice will be an Obama nominee or a McCain pick – could critically change the Court’s determination of what constitutes an “undue burden,” he said. There are several states that have places restrictions on abortions, any of whom would be ripe for challenge. “What states can basically do is regulate abortion out of the reach of” many poor and rural women Dellinger said. “The ‘undue burden’ standard depends very much on the justice.”

Supreme Court stays Georgia execution

Less than two hours before Georgia death row inmate Troy Davis was to be put to death last night, the U.S. Supreme Court stayed the execution until the justices can consider Davis’ petition on Monday.

Davis, who was convicted of killing a police officer in 1989, has asked the court to review his case, saying that the majority of witnesses who testified against him have since recanted their stories, and citing the absence of physical evidence in his conviction. Davis maintains his innocence. Among the people who have urged clemency for Davis are former President Jimmy Carter and Pope Benedict XVI.

The stay will remain in effect if the Court agrees to consider his case. If his petition is dismissed, the stay will be lifted.

What are the worst Circuit Courts for job bias plaintiffs?

Last week the American Constitution Society of Law and Policy released a study showing the low rates of success for employment discrimination plaintiffs in federal trial and appellate courts.

The numbers were particularly striking at the appellate level. Job bias plaintiffs who won at the trial level had their verdicts reversed on appeal 41 percent of the time. Meanwhile, plaintiffs appealing verdicts in favor of the employer won reversals less than 9 percent of the time.  More here from Lawyers USA.

Because of the low success rates, fewer workers are turning to the federal courts for redress, particularly on the federal level, the study’s author said.

For example in the 11th Circuit Court of Appeals, the number of employment discrimination appeals dropped 35 percent from 1998 to 2005 – the biggest decrease of any circuit.

The percentage drop in some other courts was also noticeably sharp:

1st Circuit: -30 percent

8th Circuit: -28 percent

5th Circuit: -25 percent

4th Circuit: -23 percent

10th Circuit -22 percent

9th Circuit: -20 percent

6th Circuit: -19 percent

7th Circuit: -18 percent

2nd Circuit: -17 percent

D.C. Circuit: No change

3rd Circuit: +10 percent

1st Circuit: +30 percent

Source: Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse? –  Harvard Law and Policy Review

Monday status conference: The E-Discovery channel

Today a brand new issue of Lawyers USA hits the stands. Here’s a sneak peek of what’s inside:

Taking E-discovery in their own hands: E-discovery Clients are increasingly taking control of either part or all of their electronic discovery obligations when they are involved in litigation. The trend – a shift from the days of complete reliance upon an outside vendor or upon teams of law firm associates poring over documents – can be attributed to a desire to cut costs as well as improved technology. (Lawyers USA)

Another e-discovery lesson: Show your work: While Qualcomm v. Broadcom has generated its fair share of commentary, lawyers should also be paying close attention to another 2008 case. (Lawyers USA)

Smoke gets thicker: A new twist in the 14-year long Florida tobacco litigation will make it more time-consuming and expensive for plaintiffs in individual trials against cigarette makers to prove their cases. A federal judge has essentially erased the jury findings of a year-long state trial in 1999 that established causation and liability against a number of cigarette makers. (Lawyers USA)

Supreme season opening:  The U.S. Supreme Court’s docket for the October 2008 term is far from complete, but already a number of highly-anticipated cases are set to be argued and decided. The cases deal with a number of topics of interest to practicing attorneys, including federal preemption, employment law, criminal procedure, sentencing and punitive damages. (Lawyers USA)

DC Dicta Asks: What Supreme Court cases will you be following?

The start of the U.S. Supreme Court’s oral argument season is less than three weeks away, and the justices are poised to tackle a number of issues of high interest to practicing attorneys and Supreme Court-watchers this term – from federal preemption of state law tort claims to the limits of Fourth Amendment search and seizure protections. More here from Lawyers USA.

So now we ask you: What cases will you be following closely this term? Start a discussion in the comments section below.

House committee launches rare judicial impeachment probe


Yesterday, for the first time in more than 20 years, the House Judiciary Committee launched an impeachment investigation. The probe is focused on U.S. District Judge Thomas Porteous of Louisiana.

Porteous is accused of accepting money from attorneys in cases over which he presided, and of putting false information in financial disclosure and bankruptcy filings, which amounts to perjury.

The vote comes on the recommendation of the Judicial Conference, led by Chief Justice of the United States John G. Roberts, Jr.

Porteous’ attorneys dismissed the House vote, saying that after a five-year Justice Department investigation Porteous has yet to be charged, let alone convicted of “high crimes and misdemeanors.”

The investigation is set to conclude after the next Congress begins its session in January. If the full House ultimately votes for impeachment, Porteous can face trial before the Senate.

Fight between House and Miers goes to court

Might the Bush administration keep former White House counsel Harriet Miers from testifying before congress by simply running out the clock?


That is what federal judges wondered yesterday at a hearing on whether Miers should be compelled to testify before congress about the firings of U.S. Attorneys, which Democratic lawmakers believe was politically motivated.

As House Judiciary Committee Chairman John Conyers., Jr., watched, a panel of judges from the U.S. Court of Appeals for the District of Columbia wondered whether continuing a stay keeping Miers from testifying would allow the executive branch to appeal the matter until January – when the administration ends. That, the judges said, could essentially twart the actions of Congress, which subpoenaed her.

Continuing the stya could mean “mooting the victory the House committee won,” said Judge David S. Tatel, the Associated Press reported.


The Judiciary Committee ordered Miers to testify and White House chief of staff Josh Bolten to turn over documents related to the 2006 prosecutor firings. When they refused, the House voted to hold Miers and Bolten in contempt of congress.

“It is very important to get to the bottom of the U.S. attorney firings, and the extraordinary White House efforts to keep Harriet Miers from testifying only underscore the committee’s need to hear from her,” said Conyers yesterday.

Monday status conference: Stormy weather edition

It was a rough weekend in terms of the weather and the financial markets, as Hurricane Ike blazed a destructive path through southern and plain states – sending gas prices skyrocketing in the process – and the sale of Merrill Lynch and the planned bankruptcy filing by Lehman Brothers are causing a tempest on Wall Street.

Meanwhile, around the capital and beyond:

Sorry, Lehman: The Fed said it would not bail out Lehman Brothers like it did Fannie Mae and Freddie Mac. (NYT)

Extension for Ike victims: Taxpayers and tax preparers in areas affected by Hurricane Ike will get an extra week to file returns and make payments due Sept. 15, the Internal Revenue Service said Friday. (AP)

Bankruptcy laws clash with the First Amendment: Separate rulings in the span of a week from a federal appeals court and a federal district judge found that a provision of U.S. bankruptcy law violates the free-speech rights of lawyers by barring them from advising clients to incur additional debt before filing bankruptcy. (Legal Blog Watch)

Gimme shelter: Are more law firms in the IRS’s sights in its ongoing tax shelter probe? (ABA Journal)

From court to gridiron: It’s not all work and no play for Chief Justice John G. Roberts, Jr., who took some time last week to watch the University of Notre Dame’s Fighting Irish football team practice. (South Bend Tribune via How Appealing).

Friday morning docket: We don’t like Ike

As forecasters warn of “certain death” to those in Hurricane Ike’s path in Texas’ coastal regions who choose not to evacuate, and economists worry about the potential damage to nearby oil refineries and the resulting impact on gas prices, we take a look at the legal news:

The millennials are coming! The millennials are coming! Law firms throughout the country are bracing themselves for the next generation of the American workforce – and they could change the way the workplace operates. (Lawyers USA).

Surely you jest: Montana Gov. Brian Schweitzer, speaking to the trial attorneys’ group the American Association for Justice, took credit for the election victory of a Democratic senator – one of the races that helped give the party a majority in Washington. And now some folks aren’t really happy with Schweitzer’s comments. He said he was kidding. (NYT)

Foreclosure halt? After the government takeover of the two lending giants, four Democratic senators urged the Bush administration to stop Freddie Mac and Fannie Mae from foreclosing on any homes for at least 90 days. (NYT).

Giving the SEC more teeth: The House of Representatives passed a bill on Thursday to strengthen the enforcement arm of the U.S. Securities and Exchange Commission. (Reuters)

More manpower at the FDA: The Food and Drug Administration has hired more than 1,300 professional staffers to try to boost the agency’s ability to protect the public health amid rapid technological and scientific change. (AP)