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Friday morning docket: Red Flag reprieve

Were you one of the many lawyers frantically drafting written anti-identity fraud policies for your law firm before the Federal Trade Commission begins enforcing its ‘Red Flags’ regulations this weekend? Well, you can step back and breathe a sigh of relief.

The American Bar Association won an early victory in a D.C. federal court yesterday, where a judge granted the group’s motion for partial summary judgment in its lawsuit against the FTC challenging the agency’s authority to enforce the Red Flags rule against attorneys.

District Court Judge Reggie Walton granted the ABA’s motion from the bench, rejecting the FTC’s argument that Congress intended to include lawyers in the definition of “creditors.” The FTC is set to begin enforcing the rule Sunday.

But as any good lawyer knows, this was just Round One. Expect the FTC to appeal.

Meanwhile, over at the U.S. Supreme Court, the justices will return from a brief recess for a private conference today to consider certiorari requests. As always, SCOTUSBlog has a list of petitions they think are likely to get the nod from the justices.

Monday oral arguments continue at the High Court in a number of cases, including one asking whether state lawmakers may bar federal courts from considering state statutory recovery claims in class action litigation (Shady Grove Orthopedic Assoc. v. Allstate Insurance Co, set for argument Monday); whether a prosecutor can face civil liability for allegedly introducing false testimony against a defendant at trial (Pottawattamie County v. McGhee, set for Wednesday); and whether a defense attorney’s failure to present evidence of the defendant’s impaired mental functioning in a capital case constituted ineffective assistance of counsel (Wood v. Allen, also set for Wednesday).

And as you prepare to buy mounds of candy for all your neighborhood trick-or-treaters, here’s a look at the legal news:

Chamber pushes tort reform: As lawmakers prepare to vote on a plan to overhaul the nation’s health care system, the legal reform advocacy arm of the U.S. Chamber of Commerce called for stronger medical malpractice reform efforts at its annual summit. (Lawyers USA)

Iqbal and Twombly on the Hill: House lawmakers discussed the impact on the judicial system of two recent U.S. Supreme Court decisions that toughened federal civil pleading standards. (Lawyers USA)

Signs of discrimination: The EEOC has revised posters employers are required to post in the workplace to reflect new federal employment discrimination laws. (Lawyers USA)

Hate law expanded: President Obama signed a bill expanding hate crimes protection by the end of that year to include attacks based on sexual orientation. (Washington Post)

Gov. Bush: Med-mal reform requires ‘big boy pants’

“Reforming medical malpractice laws is not for the faint of heart. [In Florida] it was butt ugly, as they say back home. … Put on your big boy pants for this one. I still have scar tissue on my forehead from banging and banging my head against the wall to get this done.”

~ Former Gov. Jeb Bush speaking Wednesday at the U.S. Chamber of Commerce’s Institute for Legal Reform’s annual reform summit.

Scalia and Breyer take their disagreements on the road

Those who watch oral arguments at the U.S. Supreme Court regularly know that Justices Antonin Scalia and Stephen Breyer are not afraid to openly disagree – and that they often do it in a lively way. But on Monday, the two justices gave a Tucson audience the opportunity to see them spar away from the bench.

The topic of the justices’ discussion was constitutional interpretation, and the justices wasted no time explaining the differences in their philosophies, and gently needling each other a bit in the process.

NBC News legal correspondent Pete Williams, who moderated the event sponsored by the Rehnquist Center at the James E. Rogers College of Law, asked about the 2005 case Roper v. Simmons, in which the Court ruled the death penalty for juveniles unconstitutional in a split vote. Scalia and Breyer talked of how they came down on opposite sides.

Scalia, one of the four dissenters in the case, explained his strict construction approach of considering only the framers’ intent.

“The death penalty is not unconstitutional because the framers said it wasn’t unconstitutional,” Scalia said, adding:  “For this Court, my Court, to just say: ‘[Executing juveniles] does not seem to us a good idea and therefore it’s unconstitutional,’ I just don’t under stand that.”

Scalia pointed to Breyer. “He’ll explain it, though,” Scalia said, drawing laughter from the audience.

Breyer said the Constitution’s phrase “cruel and unusual punishment” doesn’t explain itself, and therefore justices have the difficult task of defining it based on the values espoused by the Constitution.

“The question is, where do we draw the line to day, not where we drew it in the 18th century,” Breyer said. “Where do we draw the line today in terms of the values enact in the constitution?”

Scalia, as expected, disagreed completely.

” I mean what circumstances have changed?” Scalia said. “Death was death then. Death is death now. [Audience laughs] Eighteen was 18 then. Eighteen is 18 now. You’re talking about applying different values.

“It is a difficult job,” Scalia continued. “Steve, I don’t know how you do it. I’m just glad I don’t play that game. I would lie awake at night, you know-” Scalia looked at the ceiling, fretfully twiddling his fingers.

As the audience laughed again, Breyer jumped in.

“Are you going to execute people for embezzlement?” Breyer asked Scalia. “I know you won’t for parking tickets. What about speeding?” More laughs.

“I would not execute someone for embezzlement, but it’s not unconstitutional,” Scalia said, leaning forward.

Williams asked about other archaic forms of punishment meted out at the time the Constitution was written, such as ear notching or the pillory.

“If cases like that arose, would you find they were constitutional?” Williams asked.

“I’d find they were constitutional and stupid,” Scalia said.

Watch the full video of the justices’ Conversation On The Constitution: Principles of Constitutional and Statutory Interpretation.

Judges slowly selected, quickly heard under Obama

Much has been said about the slow pace of federal judicial nominations under President Obama, and a new report by the Brookings Institute takes a harder look.

Comparing judicial nominations during Obama’s first nine months in office to those made during the same time period under President Bush, the report found that Obama is making far fewer nominations, but those nominees are getting much faster hearings.

While Bush made 60 judicial picks in his first nine months – representing about 73 percent of judicial vacancies, Obama has made 22 nominations, covering 41 percent of the vacancies.

“Had the Obama administration nominated judges at the same rate as the Bush administration, it would have filled all the vacancies it inherited,” the report states.

The slow pace of nominations could be caused by a number of factors, according to the study, including the fact that Obama had a Supreme Court vacancy occur during his first nine months, while Bush did not.

“Obviously, filling the vacancy created by Justice David Souter’s May 1 retirement announcement consumed energy that might otherwise have gone toward searching for lower court nominees (not to mention dealing with two wars, an economic meltdown, and an ambitious legislative agenda),” the report says.

While Obama is slower to nominate, there is good news for those who are chosen. Obama’s federal trial judge picks wait an average of 54 days to get hearing compared with 70 days for Bush nominees. For Circuit Court nominees, Obama’s picks went before the Senate in 43 days on average, compared with 116 days for Bush picks.

But the quick hearings don’t ensure a quick road to confirmation. Only 9 percent of Obama’s picks have been confirmed, compared to 13 percent of Bush’s picks.

The full report, Judicial Nominations in the Bush and Obama Administrations’ First Nine Months, can be found on the Brookings Institute’s website.

Monday status conference: Night at the Opera

We knew the Justices Antonin Scalia and Ruth Bader Ginsburg love the opera. Well, this weekend, they were in the opera.

Saturday night, the justices were on stage for the entire performance of the Washington National Opera’s Ariadne auf Naxos. Scalia, Ginsburg and her husband, Georgetown University law professor Martin Ginsburg, had nonspeaking roles as dinner party guests, and were seated at tables for the 90-minute performance.

But the highlight of the evening was reportedly when Russian soprano Lyubov Petrova perched herself right on Scalia’s lap and draped an arm around him. The audience to burst into applause, according to reports.

Afterwards Ginsburg said it was “an entirely enchanting evening.”

(Photos By Karin Cooper for The Washington National Opera)

More on the performance from The Baltimore Sun’s Clef Notes blog and the Associated Press.

Here’s some other legal news to kick off your week:

‘Red Flags’ of confusion: Lawyers take heed – the new “red flags” identity protection rules enacted last year are set to be enforced starting in November. Or maybe they won’t. And those rules apply to you. Or maybe they don’t. Confused yet? You are not alone. (Lawyers USA)

New sentencing commission chair: Six months after his nomination by President Barack Obama, Vermont federal district court Judge William K. Sessions III was confirmed by the Senate as chair of the United States Sentencing Commission. (Lawyers USA)

Hate crimes bill heads to POTUS: The Senate has passed an amendment to the defense spending bill that would give expand federal protections and investigatory powers in connection with hate crimes motivated by sexual orientation and gender identity. (Lawyers USA)

CFPA bill advances: The House Financial Services Committee has approved legislation that would create a new agency to promulgate rules and impose penalties for unfair and deceptive trade practices, fraud and data security breaches. (Lawyers USA)

Stirring the pot: Health and law enforcement officials around the nation are scrambling to figure out how to regulate medical marijuana now that the federal government has decided it will no longer prosecute legal users or providers. (The New York Times)

The silent justice speaks

“So why do you beat up on people if you already know? I don’t know, because I don’t beat up on ‘em. I refuse to participate. I don’t like it, so I don’t do it. …All nine of us are in the same building. If we want to sway each other we know where we are. We don’t need oral arguments to do that. It doesn’t make any sense to me.”

~ Justice Clarence Thomas on his 3-year silence during Supreme Court oral arguments (AP)

Friday morning docket: More med-mal debate

Lawmakers and White House officials are once again squarely focused on health care reform, and the debate over what, if any, medical malpractice reform measure will be included continues in Washington.

Next week at a Health and Human Services hearing, proponents of reform plan that would allow victims of malpractice to go before a local panel of experts appointed by state authorities will make the case to Obama administration officials.

At the Supreme Court, all will be quiet until the justices conference again one week from today.

Meanwhile,

(Anti)trust issues: A bill that would end the antitrust exemption for health insurance and medical malpractice insurance companies was advanced by a House panel Wednesday. (Lawyers USA)

Greg Craig watch: Is White House counsel Greg Craig on the way out? And if so, why? (The New York Times)

Red flags waived: The House passed a bill that would exempt attorneys in small firms and other professionals from the Federal Trade Commission’s “red flags” rule, which is set to go into effect Nov. 1. (Lawyers USA)

Hate crimes bill passes: The Senate passed a hate crimes bill that would extend protection to gays and lesbians, (The Washington Post)

A tragic tale

The ABA Journal’s cover story this month examines the tragic story of Mark Levy, the well known Supreme Court litigator who in April took his own life in his Washington, D.C. Kilpatrick Stockton office.

Levy’s death shocked the legal community, and the Journal’s piece examines the factors that could have contributed to it: the bad economy coupled with the increasing pressure on lawyers to not only perform well, but also bring in business.

According to the article, Levy was an excellent practitioner (he is described as one of the nation’s best appellate attorneys) and loved the advocacy work that came with his position as chair of the firm’s Supreme Court practice. (The last case he argued before the Court, Kennedy v. Plan Administrator for DuPont Savings and Investment Plan, resulted in a unanimous win). But what the former law school classmate of Justice Samuel Alito, Jr. and Secretary Hillary Rodham Clinton did not enjoy was the other requirement of a big firm department head: rainmaking.

“He was a superb lawyer but he wasn’t a business-getter,” says Stephen Bokat, former general counsel of the U.S. Chamber of Commerce. Levy often wrote amicus briefs on the Chamber’s behalf in business cases – work that was interesting, but not profitable. “No­body gets rich” working for the chamber, Bokat adds.

The full story, a very interesting read, can be found here.

Justice Kennedy: We need more work!

Are the justices of the U.S. Supreme Court a bunch of slackers?

Justice Anthony Kennedy thinks the Court should pack its docket with more cases each term. Speaking at an event at George Washington University Law School last week, Kennedy said the Court decided about 150 cases a year during his early years on the bench. Now, the court take up about 80 cases each term. That leaves the justices with just a wee too much time on their hands, Kennedy said.

“We should have 100 cases,” Kennedy said, according to this GW Hatchet report. “Eighty does not work us to full capacity.”

Kennedy also talked about being the infamous “swing vote” in so many pivotal High Court cases. “I never read a brief I couldn’t go down the middle on,” said Kennedy, according to The Daily Colonial.

UPDATE: According to the Supreme Court Public Information Office, Kennedy was not talking about being the fifth vote in split decisions at all. He was talking about the length of briefs submitted to the Court. His quote actually was: “I never read a brief I couldn’t put down in the middle.”

HT: ABA Journal

New ADA service animal regs don’t monkey around

Those claiming that their pet monkeys, reptiles or ferrets are service animals under the Americans with Disabilities Act should take heed of new regulations set to go into effect soon.

Those regs, issued last year but delayed until the Obama administration could get its Justice Department Civil Rights Division fully in place, are set to be enforced by the end of the year.

The new clarified standards bar rabbits, farm animals, ferrets, rodents, amphibians, and wild animals – including monkeys or any other primate born in captivity – from being used as service animals.

Even Fifi, your lovable Bichon Frise, won’t qualify unless she has been individually and specifically trained “do work or perform tasks for the benefit of individuals with disabilities” under the Act, such as retrieving a phone or medication, assisting during a seizure, providing physical support or navigation assistance. Just being cute won’t cut it. “[A]nimals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, or promote emotional well-being are not service animals.” Sorry, Fifi.

More here from The Seattle Times.

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