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Monthly Archives: August 2009

Monday status conference: Last quiet days

Washington will remain largely quiet this week as members of Congress and justices of the Supreme Court are out for the last full week of recess before returning after Labor Day. Many lawmakers, as well as President Obama and Supreme Court Justice Stephen Breyer, spent part of this past weekend in Boston to attend the funeral of the late Sen. Edward Kennedy.

The president returned to Washington from Martha’s Vineyard yesterday, but will take a few more days of repose at Camp David starting Wednesday. Everyone should rest while they can: next week brings the return of wrangling over health care reform and Supreme Court oral arguments in a held-over campaign finance case.


New border search rules: Responding to concerns that federal law enforcement officials have been poking through travelers’ personal electronic data, the Obama administration has tightened restrictions on laptop searches at border crossings. (Lawyers USA)

Rolling violations: A new report by the American Association for Justice shows that 28,000 motor carrier companies, operating more the 200,000 trucks on American roadways, have violated federal safety regulations. (Lawyers USA)

Chrysler challenge dropped: The Supreme Court has dismissed the challenge to the bankruptcy sale of Chrysler to Fiat after the company agreed to accept liability by cars made by the pre-bankruptcy Chrysler. (SCOTUSblog)

Solons suggests spouse: Some lawmakers are suggesting that the late Sen. Kennedy’s seat be taken by his widow, Vicki, even though she has said she isn’t interested. (AFP)

Religious wrong? Supreme Court Justice Antonin Scalia was reportedly miffed by a law professor who questioned whether the justice’s decisions were influenced by his Catholic faith. (HuffPo via ABA Journal)

The church calls: In an unrelated twist, a Connecticut Roman Catholic diocese is appealing to Scalia to stay the release of documents generated by lawsuits against priests for alleged sexual abuse. Justice Ruth Bader Ginsburg already denied a request to keep the documents sealed, but the diocese wants a second opinion from Scalia. (AP)

Friday morning docket: Hot August news

With all the federal lawsuits, case dismissals, new regulations and Supreme Court action, it’s hard to believe that it’s August!

ABA sues: The American Bar Association filed suit to prevent the Federal Trade Comission from enforcing the anti-identity theft Red Flags Rule against lawyers. (Lawyers USA)

Speaking of ID theft: Federal Reserve Chairman Ben Bernanke was a victim! It all started when his wife’s purse was snatched off a chair at Starbucks. You can’t make this up. (ABA Journal)

New HIPAA regs: The Health and Human Services Department issued regulations last week concerning the HIPAA breach notifications requirements enacted as part of the stimulus bill earlier this year. (Lawyers USA)

FDA’s smoking guns: The Food and Drug Administration has established the Tobacco Products Scientific Advisory Committee, the latest step in implementing the Family Smoking Prevention and Tobacco Control Act signed into law earlier this year. (Lawyers USA)

Supreme Court orders bail: Yesterday the Supreme Court ordered Massachusetts to grant bail to a man convicted of beating a  teacher with a baseball bat. (AP)

Chrysler SCOTUS challenges dismissed: Just before Chrysler announced it would accept product liability claims on vehicles built before the company was reorganized in bankruptcy, the Supreme Court dismissed several challenges to the deal. (SCOTUSBlog)

Justices react to Kennedy’s passing

Two justices of the Supreme Court have made statements on the passing of Massachusetts Sen. Edward Kennedy.

Justice Stephen Breyer, who worked closely with Kennedy while serving as chief counsel to the Senate Judiciary Committee in the 1970s, said: “The country has lost a great senator. We who worked for him remember and will always cherish his practical wisdom, his sense of humor, his determination, and his love of his country and its history. He was dedicated to helping others. Our hearts go out to Vicki and to his family. Senator Kennedy was a great American.”

Chief Justice John G. Roberts, Jr. also made a statement, saying: “I am very saddened by Senator Kennedy’s passing. He was – all his life – a sincere, dedicated, and tireless public servant.”

HT: Tony Maruo at the BLT

To the end, Kennedy championed issues vital to trial attorneys

Sen. Edward Kennedy was possibly the most important lawmaker in Washington on issues that most directly affect trial lawyers and the cases they litigate.

In addition to being the force behind such landmark legislation as the Americans with Disabilities Act and the Occupational Safety and Health Act, in recent years as chairman of the Senate’s Health, Education, Labor and Pensions Committee, Kennedy introduced or co-sponsored a bevy of bills to change the legal landscape for the nation’s attorneys, litigants, patients and employees.

Last spring, Kennedy introduced a bill that would reverse the Court’s holding in Riegel v. Medtronic, allowing common law claims challenging the safety and effectiveness of a medical device that received pre-market approval from the FDA. The measure is still pending before the Congress.

Kennedy also introduced legislation that for the first time allows the FDA to regulate tobacco products, which was signed into law this year by President Barack Obama.

Though he spent most of the past year away from Washington since being diagnosed with a malignant brain tumor, he still authored and co-sponsored a host of bills, including the The Healthy Families Act, filed in May, which would allow workers to earn paid sick time that can be used for themselves or to care for an ailing relative.

He was the Senate force behind the Lilly Ledbetter Fair Pay Act, which overturned the Supreme Court’s ruling in Ledbetter v. Goodyear Tire and Rubber Co. The law – the first signed by Obama – restarts statute of limitations for gender-based unequal pay claims would restart with the issuance of each unequal paycheck.

Kennedy also was a key sponsor of what would become the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act, championed on the House side by his son, Rhode Island Rep. Patrick Kennedy, and signed into law in October by President George W. Bush. The law sought to end discrimination in insurance coverage for people with addiction and mental illness.

When Bush signed another Kennedy-sponsored bill into law – the Genetic Information Nondiscrimination Act, which amended federal civil rights and employment laws to prohibit employers from discriminating against employees based on genetic information – Bush’s noted Kennedy’s role in the bill’s passage. “Senator Ted Kennedy … has worked for over a decade to get this piece of legislation to a President’s desk,” Bush said.

He was also behind the 2008 passage of the Higher Education Opportunity Act, which included a provision easing the student loan burdens of attorneys who enter the public service sector.

In 2007, he also blasted the Bush-appointed National Labor Relations Board over a series of opinions Kennedy and other lawmakers said eroded workers’ rights, calling the panel “most anti-worker, anti-labor, anti-union Board in its history.”

Kennedy also was a long serving member of the Senate Judiciary Committee, and until he stepped down from that panel last year, he cast a committee vote on every Supreme Court nominee since William Rehnquist was nominated as an associate justice in 1971. During the failed Supreme Court bid of Robert Bork, Kennedy famously blasted the candidate, saying in his floor speech that “Robert Bork’s America is a land in which . . . the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.”

Edward Kennedy, political patriarch and Judiciary Committee stalwart, dies

Sen. Edward Kennedy passed away at his Hyannis Port, Mass. Home late last night. He was 77.

Kennedy was not only an iconic figure in Washington and a patriarch of the Democratic Party, he also was the longest serving member of the powerful Senate Judiciary Committee in recent history. During his tenure, he cast committee votes on the nominations of every current Supreme Court justice except Justice Sonia Sotomayor. He also cast committee votes on the nominations for former Justices Sandra Day O’Connor, David Souter, the late Chief Justice William Rehnquist and former nominee Robert Bork. He stepped down from the committee in December this year to focus on the health care debate.

A statement from his family reads:

“Edward M. Kennedy – the husband, father, grandfather, brother and uncle we loved so deeply – died late Tuesday night at home in Hyannis Port. We’ve lost the irreplaceable center of our family and joyous light in our lives, but the inspiration of his faith, optimism, and perseverance will live on in our hearts forever. We thank everyone who gave him care and support over this last year, and everyone who stood with him for so many years in his tireless march for progress toward justice, fairness and opportunity for all.He loved this country and devoted his life to serving it. He always believed that our best days were still ahead, but it’s hard to imagine any of them without him.”

The power of Ginsburg and Sotomayor

Sitting on the nation’s highest court is, no doubt, a powerful position – but perhaps not as powerful as one might think.

Forbes magazine has compiled a list of the most powerful women in the world. And while both of the female justices of the Court made the list, they’re nowhere near the top.

Justice Ruth Bader Ginsburg comes in as the 48th most powerful woman on the list. Justice Sonia Sotomayor, who has held her seat on the court for less than a month, holds the number 55 spot on the list.

That, of course, is nothing to sneeze at. But, as the ABA Journal notes, there are other high profile female JDs that come in much higher on the lists than the justices, including first lady Michelle Obama, who is 40th on the list. Obama comes in just four places lower than the U.S. Secretary of State Hillary Clinton.

The list is based not on popularity, but influence, according to Forbes, and is based on a formula that examines the women’s visibility and the size of the organizations that they lead. Topping the list, for the fourth year in a row, is German Chancellor Angela Merkel.

Monday status conference: Vacation, all I ever wanted

President Obama has taken the first family to Martha’s Vineyard for their first official full vacation of his administration, but it’s not going to be all smooth sailing – and not just because of the waves caused by Hurricane Bill.

Critics of the president’s health care proposal plan to air television ads in Massachusetts during the president’s visit, and antiwar protester Cindy Sheehan also plans to take her campaign to the president’s vacation place.

Meanwhile lawmakers continue to spend their time away from Washington trying to put together a more streamlined plan – that may or may not include a public option. Sounds like a restful vacation for all!

In legal news,

‘He’s not the boss of me’: You can call Chief Justice John G. Roberts, Jr. a lot of things, but don’t call him Justice John Paul Stevens’ boss. (Sun Gazette)

Release blasted: FBI director Robert Mueller blasted Scotland’s top justice minister for the decision to release the man convicted in the Lockerbie Pan Am plane bombing. (AP)

Top Clerks: Wondering who the young legal whizzes behind the justices will be this term? Meet the Supreme Court clerks for the October 2009 term. (Above the Law)

SCOTUS age bias ruling even broader? Does the Supreme Court’s age discrimination decision in Gross v. FBL Financial Services also apply to labor law claims? According to a federal court in D.C. it does. (BLT Blog)

Friday morning docket: No cure for the summertime blues

It was a relatively quiet week in Washington while lawmakers continue to spend summer recess in their home districts, mostly discussing the health care bill at town hall meetings, sometimes quite animatedly. Meanwhile President Obama insists a health care reform bill will be passed one way or another.

In legal news:

Try, try again: Harriet Miers, former White House counsel who was also briefly a nominee for the Supreme Court in 2005, is now petitioning the Court to hear a case she’s handling. (WSJ Law Blog)

FDA launches tobacco regulatory unit: The Food and Drug Administration has launched its new Center for Tobacco Products, the first move in implementing the Family Smoking Prevention and Tobacco Control Act signed by President Obama in June 2009. (Lawyers USA)

E-FDA: New rules proposed by the FDA would amend postmarket safety reporting regulations to require drug and device manufacturers to submit adverse event reports electronically. (Lawyers USA)

Bankruptcy filings up: The number of bankruptcy cases filed in fiscal 2009 jumped 35 percent over the year before, according to data released by the Administrative Office of the U.S. Courts. (Lawyers USA)

Gay marriage ban challenge takes first step on the road to the Supremes

A federal challenge to a ban on gay marriage – designed to go all the way to the U.S. Supreme Court – will go to trial in California in January.

Yesterday, a judge set a Jan. 11 trial date in the lawsuit launched in May by power attorneys Ted Olson and David Boies challenging California’s Proposition 8. U.S. District Judge Vaughn Walker said the expedited trial schedule was set because the case is “a matter of huge importance for the people of this state.”

The judge denied the requests of several gay rights organizations seeking to join the case as co-plaintiffs. Olson and Boies had opposed the request of the groups, which had initially opposed the lawsuit for fear that a loss would set a negative precedent that would be applied nationwide.

Olson, a staunch conservative and Federalist Society leader who served in the Justice Department under Presidents Reagan and Bush, explained in a New York Times piece yesterday why he chose to take on the battle. He said it was a civil rights issue. California’s gay marriage ban, he said, creates three classes: straight couples who can marry, same-sex couples who were allowed to marry for the brief time it was legal in the state, and other same-sex couples for whom marriage is not allowed.

“This case could involve the rights and happiness and equal treatment of millions of people,” Olson said.

“Why wouldn’t I take this case?” Olson said. “Because someone at the Federalist Society thinks I’d be making bad law? I wouldn’t be making bad law.”

She’s just Sonia from the block

Don’t be fooled by the robe that she’s got. Becoming a Supreme Court justice has its perks. And for Justice Sonia Sotomayor, one of those perks includes being feted at the home of Jennifer Lopez.

The signer/actress hosted a party for the Court’s first Latina justice at her Long Island home last night, reports E! Online. But it wasn’t a Hollywood affair – Lopez, her husband Marc Anthony and Sotomayor were joined by about a dozen “political types” at the low-key dinner party. J.Lo’s known high-profile buddies – such as Tom Cruise and David and Victoria Beckham – were not in attendance.

The entertainer not only shares her Puerto Rican heritage with the jurist. Both also hail from the Bronx.