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Monthly Archives: December 2008

Monday status conference: Decisions, death penalty and ducking

supremeleftDecember is usually a sleepy time on the Hill, but not this week. The Supreme Court could issue opinions or add cases to its docket today. Friday the Court agreed to take up a case involving a $500 million asbestos-related settlement and another case involving taxation of vessels in a city port.

On the Hill, the failed auto industry bailout is a signal to folks in other industries that getting help from the feds is no sure thing is this sputtering economy.

And President George W. Bush is on his way home from Iraq, where he bid farewell and ducked shoes.

Meanwhile,

No cool COLA for judges: Federal judges were on the losing end of a bid to get a cost-of-living adjustment to boost their salaries. (BLT).

Stevens suspended: In a move that could thwart his changes of snagging a post-conviction position as a practicing attorney, Alaska Sen. Ted Stevens’ D.C. bar license has been suspended. (AP)

AG’s first recusal? If confirmed as attorney general, Eric Holder may have to consider removing himself from overseeing the Chicago corruption probe that ensnared Illinois Gov. Rod Blagojevich because he could be listed as a possible witness. (AP)

DOJ issues death penalty rule: The Department of Justice has handed down controversial regulations fast-tracking death penalty cases in some states. (The National Law Journal).

Friday morning docket: Bribes and bailout edition

The Supreme Court has wrapped up oral arguments for the month, Congress continues to wrangle over a proposed rescue plan for the U.S. auto industry – a task that may be even harder than it seems – and the president-elect is distancing himself and his team as far away from the governor of Illinois as he can.

Meanwhile,

Warning issued: The Food and Drug Administration is requiring a boxed warning to highlight the risk of life-threatening infections stemming from the use of Genentech’s psoriasis drug Raptiva. (Lawyers USA)

Not ready for prime time: The 2nd U.S. Circuit Court of Appeals recently allowed cameras in its courtroom – a rare move. But don’t expect to see Supreme Court oral arguments on your TV screen any time soon. (AP)

EPA takes ball and goes home: As the Bush administration nears its end, the EPA has decided to give up on ist effort to ease restrictions on pollution from coal-burning power plants. (AP)

More than a bailout: The $14 billion bailout bill currently making its way through the halls of could benefit more than the auto industry – it could benefit federal district judges. (WSJ Law Blog)

Chamber: Stop lawsuits – but not ours

commerceThe U.S. chamber of Commerce frequently backs efforts to curb lawsuits, something Chamber officials say is necessary to protect businesses.

“The last thing this country needs is more lawsuits sucking from the nation’s economy,” Chamber president and CEO Thomas J. Donohue said just days after the November election, warning that Democrats in the White House and congress could block tort reform efforts.

But in a recent letter from the Chamber’s chief lobbyist R. Bruce Josten to Congress, the group urged lawmakers to protect the right of its member companies to sue.

Josten sent a letter the Washington lawmakers voicing concern about a provision in the proposed rescue plan for U.S. auto companies that would restrict the right of the companies from “participating in, pursuing, funding, or supporting in any way, any legal challenge (existing or contemplated) to State laws concerning greenhouse gas emission standards.”

Leaving that provision in the legislation “would not only deny the manufacturers their basic constitutional right to use the federal courts to redress what they believe are unwise or unfair policy decisions, but it could conceivably also deny the automobile manufacturers the right to participate with trade associations (such as the U.S. Chamber), or environmental groups, in litigation for or against such policies.

“Not only would the terms of the bridge loan remove the automobile manufacturers’ constitutional rights,” Josten continues, “but the terms could force these unrelated third parties to forfeit their constitutional rights to sue as well, because they would be ‘supported in any way’ if the automobile manufacturers are part of their membership.”

Just this week, the Chamber’s Institute for Legal Reform launched a website and television ad campaign against excessive lawsuits.

The Funniest Justice, week 6: Scalia’s scared

scaliafunnyWednesday’s Supreme Court oral arguments over whether pregnancy leave taken before the enactment of the Pregnancy Discrimination Act of 1978 must be counted towards pension credit, attorney carter Phillips argued that ruling otherwise would be like denying blacks seniority credit for work they did before Title VII became law.

“You mean there are a lot more suits coming behind this one for any kind of discrimination that preceded Title VII?” Justice Antonin Scalia asked, seeming concerned. “When was Title VII enacted?”

“1964,” Phillips answered.

“There may be still some of those people around?” Scalia asked.

“There are.” Phillips said.

“You’re scaring me,” Scalia said, drawing a laugh from the crowd.

If Scalia isn’t truly scared of claims of decades-old Title VII misdeeds, perhaps he should be afraid of losing his long-held status as the Funniest Justice.

For the second week in a row, that distinction has gone to Justice Stephen Breyer, who this week garnered four laughs to Scalia’s two. Breyer has now passed the often comical Chief Justice John G. Roberts, Jr. to take the #2 spot on out funny list, and is only a scant eight laughs away from dethroning Scalia as the funniest justice so far this term.

Here are the laugh standings so for this term, based on Court transcripts:

Justice Antonin Scalia: 27

Justice Stephen Breyer: 19

Chief Justice John Roberts: 18

Justice David Souter: 9

Justice Anthony Kennedy: 9

Justice John Paul Stevens: 6

Justice Samuel Alito: 2

Justice Ruth Bader Ginsburg: 1

Justice Clarence Thomas: 0 (Thomas hasn’t made a remark during oral arguments since Feb. 22, 2006).

Meanwhile, you can find more on the PDA case, AT&T Corp. v. Hulteen, here from Lawyers USA

More on other oral arguments from this week:

Arizona v. Johnson – more here from Lawyers USA.

Ashcroft v. Iqbal – more here from The Los Angeles Times.

Cone v. Bell – more here from the Associated Press.

Transcripts from arguments in Pacific Bell Telephone v. LinkLine Communications and Peake v. Sanders can be found on the Supreme Court’s website.

The Funniest Justice, week 6: Scalia’s scared

scaliafunnyWednesday’s Supreme Court oral arguments over whether pregnancy leave taken before the enactment of the Pregnancy Discrimination Act of 1978 must be counted towards pension credit, attorney carter Phillips argued that ruling otherwise would be like denying blacks seniority credit for work they did before Title VII became law.

“You mean there are a lot more suits coming behind this one for any kind of discrimination that preceded Title VII?” Justice Antonin Scalia asked, seeming concerned. “When was Title VII enacted?”

“1964,” Phillips answered.

“There may be still some of those people around?” Scalia asked.

“There are.” Phillips said.

“You’re scaring me,” Scalia said, drawing a laugh from the crowd.

If Scalia isn’t truly scared of claims of decades-old Title VII misdeeds, perhaps he should be afraid of losing his long-held status as the Funniest Justice.

For the second week in a row, that distinction has gone to Justice Stephen Breyer, who this week garnered four laughs to Scalia’s two. Breyer has now passed the often comical Chief Justice John G. Roberts, Jr. to take the #2 spot on out funny list, and is only a scant eight laughs away from dethroning Scalia as the funniest justice so far this term.

Here are the laugh standings so for this term, based on Court transcripts:

Justice Antonin Scalia: 27

Justice Stephen Breyer: 19

Chief Justice John Roberts: 18

Justice David Souter: 9

Justice Anthony Kennedy: 9

Justice John Paul Stevens: 6

Justice Samuel Alito: 2

Justice Ruth Bader Ginsburg: 1

Justice Clarence Thomas: 0 (Thomas hasn’t made a remark during oral arguments since Feb. 22, 2006).

Meanwhile, you can find more on the PDA case, AT&T Corp. v. Hulteen, here from Lawyers USA

More on other oral arguments from this week:

Arizona v. Johnson – more here from Lawyers USA.

Ashcroft v. Iqbal – more here from The Los Angeles Times.

Cone v. Bell – more here from the Associated Press.

Transcripts from arguments in Pacific Bell Telephone v. LinkLine Communications and Peake v. Sanders can be found on the Supreme Court’s website.

Chamber, AAJ face off over frivolous lawsuit site

lawsuitsiteThe U.S. Chamber of Commerce has launched a new public awareness campaign aimed to show that frivolous lawsuits are not victimless crimes.

A new website called FacesOfLawsuitAbuse.org features videos of workers, business owners, and even a rollerblading child telling their stories of being named in lawsuits and the ensuing effect on their lives.

“Many people have the perception that lawsuits are primarily the concern of faceless, ‘deep-pocket’ corporations, yet small businesses and average families are also victims of these abusive suits,” Lisa Rickard, president of the Chamber’s Institute for Legal Reform said in announcing the new site.

But the American Association for Justice, the nation’s largest trial lawyers’ group, shot back, saying the campaign is bankrolled by negligent corporations.

When you are bankrolled by giant multi-billion dollar corporations, it’s laughable to claim you’re also protecting the interests of small businesses,” said American Association for Justice CEO Jon Haber, noting that companies including Wal-Mart, Citigroup, AIG, Bank of America sit on the ILR’s board.  “This campaign is just a new phase of their longstanding credo: negligent corporations should never be held accountable.”

Supremes take a pass on Obama challenge

supremesThis morning the U.S. Supreme Court without comment declined to take up a case challenging the citizenship of President-elect Barack Obama.

The court declined to take up a host of cases including Donofrio v. Wells, a case that had been the subject of much chatter on political blogs in recent days after Justice David Souter denied injunctive action in the obama6case, and Justice Clarence Thomas placed the case on the list of items considered by the Court at its conference Friday. Most news organizations noted that this case, like most before the Court, had little chance of being granted cert by the high court.

The case is one of several lawsuits launched challenging Obama’s citizenship – most claim that since Obama’s father was born in Kenya and was therefore a British subject, Obama was not a “natural born” citizen. More here from The Washington Post.

Monday status conference: All about the judiciary

usscThis morning the Supreme Court hears arguments in two cases, the first considering whether the failure by the Department of Veterans Affairs to give notice to benefits claimants as required by law is prejudicial (Peake v. Sanders). The second case  asks whether a plaintiff states a Sherman Act claim by alleging that the defendant – a vertically integrated retail competitor with an alleged monopoly at the wholesale level but no antitrust duty to provide the wholesale input to competitors – engaged in a “price squeeze” by leaving insufficient margin between wholesale and retail prices to allow the plaintiff to compete (Pacific Bell v. Linkline Communications).

Meanwhile,

Supreme docket grows: The Supreme Court added two cases to its docket Friday – one considers whether the president may order that people picked up in the United States be detained indefinitely and without criminal charges, and the other asks whether direct evidence of discrimination must be shown in order to obtain a mixed-motive jury instruction in non-Title VII cases. (Bloomberg)

GOP scores in the 6th: The Washington Post‘s R. Jeffrey Smith reports that judges appointed by President George W. Bush to the 6th Circuit court of Appeals “acting in cooperation with other Republican appointees on the court, [have] repeatedly organized full-court rehearings to overturn rulings by panels dominated by Democratic appointees.” (WaPo).

tedkennedyKennedy leaves Judiciary Committee: Sen. Edward Kennedy said he will step down from the Senate Judiciary Committee – where he has led vocal fights against the confirmation of some GOP-nominated federal judges from the districts to the Supreme Court. Kennedy said he will focus on healthcare reform. (Boston Globe).

Friday morning docket: Challenges, pleas and jabs

supremeleftThe Supreme Court justices meet today to consider a number of cert petitions – including one arising from lawsuits challenging President-elect Barack Obama’s citizenship and asking the Court to halt certification of some states’ electoral votes. Stay tuned to DC Dicta for updates on any newsworthy cert grants or other orders from the Court.

Meanwhile,

Plea from the Big Three: After a day of pleading for help from members of the Senate yesterday, executives from Detroit’s automotive companies will make their case before the House today – and the White House will be listening as well. (Reuters)

No fury like a justice scorned? Apparently Justice Samuel Alito hasn’t forgotten Vice President-elect Joe Biden’s tough questioning when he was a senator during Alito’s confirmation hearings. During a speech Alito took a swipe at Biden’s past plagiarism issues. (AP)

Lawyers and generals: A dozen retired generals met with President-elect Barack Obama’s top legal advisers – attorney general pick Eric Holder and incoming White House counsel Greg Craig. The generals pressed their case to overturn some of the Bush administration’s terrorism-fighting policies. (AP)

All good opinions come to those who wait: Attorney General Michael Mukasey said that members of the new administration’s Justice Department team may not gain access to the Bush administration’s most sensitive legal opinions until after the January inauguration. (WaPo).

Death and taxes: A new report by a tax research and advocacy group urges President-elect Barack Obama to revise his plan for reforming the estate tax, saying the plan would be too generous to the wealthy.  (Lawyers USA)

The Funniest Justice, week 5: Breyer gets comical

breyer1During oral arguments Tuesday, Justice Stephen Breyer was trying to get the crux of the issue of whether school sexual harassment claims under §1983 are barred by Title IX.

“[The plaintiffs] say, look, we want to sue an individual in his official capacity. That’s why we want to bring our 1983 suit,” Breyer said to attorney Kay Hodge, who represented the school district. “And then you reply, but there are bars here of collateral estoppel — claim preclusion — whatever it is.”

“Issue preclusion,” Hodge says, helping Breyer out.

“They all have new names,” Breyer deadpanned. And the crowd laughed.

That was just one instance of Breyer bringing mirthful levity to the Supreme Court’s hallowed halls this week. Breyer was by far the funniest justice this week, making the crowd laugh six times – and closing the gap between him and Chief Justice John G. Roberts, Jr. in the overall funny standings. By comparison, the usually hilarious Justice Antonin Scalia only drew two laughs this week, as did Roberts and Justice Anthony Kennedy. But Justice Ruth Bader Ginsburg proved she still has a sense of humor – she is on the board for the first time this term, leaving only ever-silent Justice Clarence Thomas laughless.

Here are the laugh standings after five weeks of oral arguments:

Justice Antonin Scalia: 25

Chief Justice John Roberts: 17

Justice Stephen Breyer: 15

Justice David Souter: 9

Justice Anthony Kennedy: 8

Justice John Paul Stevens: 4

Justice Samuel Alito: 2

Justice Ruth Bader Ginsburg: 1

Justice Clarence Thomas: 0 (Thomas hasn’t made a remark during oral arguments since Feb. 22, 2006).

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