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Monthly Archives: February 2010

Friday morning docket: Gunning for a debate

The blustery weather in Washington this morning will be nothing compared to the whirlwind that will surround the Supreme Court next week, when the justices take up another case testing the limits of gun control laws.

In 2008 the Court struck down a District of Columbia gun control law, saying it violated citizens’ individual right to bear arms under the Second Amendment. On Tuesday the Court will hear oral arguments in McDonald v. City of Chicago, which tests if that ruling applies to the states. Gun control laws in Chicago and across the country stand in the balance.

And in another closely-watched case, the Court will consider the constitutionality of the controversial “honest services” fraud criminal statute in a challenge brought by former Enron CEO Jeffrey Skilling. That case, Skilling v. U.S., will be heard Monday morning.

In other legal news:

Stevens out, Kagan in?: SCOTUSblog’s Tom Goldstein is making predictions about the Supreme Court lineup. He says Justice John Paul Stevens is likely stepping down, and Obama will nominate Solicitor General Elena Kagan to replace him (Oh look – we agree!). And, he says, Justice Ruth Bader Ginsberg will still be on the Court next term. (SCOTUSblog)

Record-breaking tenure: The National Law Journal’s Tony Mauro takes a look at stats from the Oyez Project to note at all the milestones Justice Stevens is approaching. For one, he’s almost the oldest justice ever. (BLT Blog)

One less case on the docket: Because a settlement was reached in the case, the U.S. Supreme Court will not decide whether the Federal Employees Health Benefits Act preempts a state court lawsuit against a government contractor that administers benefits provided in accordance with the statute. (Lawyers USA)

Constitutional debate: Sen. Chris Dodd wants to change the Constitution in order to undo the Supreme Court’s ruling in Citizens United v. FEC. (Hartford Courant)

Toyota tort debate: The Toyota situation could be making the argument for tort reform a much harder sell. (The Wall Street Journal‘s Law Blog)

Standoff on mortgage assistance: Members of Congress on both sides of the aisle are taking aim at the Obama administration’s struggling mortgage assistance program, with Republicans calling it a worthless exercise and Democrats saying it doesn’t go far enough. (Lawyers USA)

The Funniest Justice, week 9: Sotomayor sets it up for Scalia

During oral arguments Tuesday in Holder v. Humanitarian Law Project, a case that challenges a federal law making it unlawful to provide “material support” to terrorist groups:

“Under the definition of this statute, teaching these members to play the harmonica would be unlawful,” Justice Sonia Sotomayor said to Solicitor General Elena Kagan.

“Well, maybe playing a harmonica is a specialized activity,” Kagan said. “I think the first thing I would say is there are not a whole lot of people going around trying to teach Al-Qaeda how to play harmonicas.”

“Well, Mohamed Atta and his harmonica quartet might tour the country and make a lot of money. Right?” deadpanned Justice Antonin Scalia. And laughter filled the courtroom.

Scalia is making this term’s Funniest Justice contest a runaway race at this point, earning five additional laughs this week and bringing his total chuckle count to 50.

Justice Stephen Breyer earned two laughs, and Chief Justice John G. Roberts, Jr. and Justice Anthony Kennedy each added one laugh to the totals.

Here are the standings as of this week:

Justice Antonin Scalia: 50

Justice Stephen Breyer: 28

Chief Justice John G. Roberts, Jr.: 18

Justice Anthony Kennedy: 7

Justice Samuel Alito: 3

Justice John Paul Stevens: 2

Justice Clarence Thomas: 0 (The oral argument silence that began after Feb. 22, 2006 continues)

Justice Ruth Bader Ginsburg: 0

Justice Sonia Sotomayor: 0 (Despite the assist, the laugh goes to Scalia)

Supreme Court breaks the chain

Anyone who has watched a crime drama knows that suspects have the right to remain silent and to have a lawyer present at questioning. But when a defendant asks for a lawyer, how long does that request last?

About two weeks, tops – according to the Supreme Court yesterday.

In the case Maryland v. Shatzer, involving a man accused molesting his own son, police questioned the man in connection with the crime while he was begin jailed on another offense. The guy asked for a lawyer and police stopped questioning.

Fast forward more than two years; the man is at a different prison, and a different police officer asks him about the alleged molestation. This time the prisoner waives his Mirada rights and starts talking.

But at trial he sought to have the statement tossed. The defendant contended that he already asked police for a lawyer – two years earlier – so police violated his Miranda rights by questioning him again without one.

But the Supreme Court disagreed, ruling that a break in the chain of custody of more than two weeks, let alone more than two years, made the defendant’s waiver of his Miranda rights valid. A break in the chain of custody, the Court ruled, requires a new request for a lawyer. And in this case, the defendant’s chain was well broken.

House blasts Senate for stalling hundreds of bills

They say government moves at a glacial pace, but House Democrats are blasting their counterparts on the Senate side, saying hundreds of bills passed by the House have stalled in the other chamber.

Each year House members compile a list of House-passed bills that have languished in the Senate, but this year the number stands at 290 – a figure that could be a record high, according to House Speaker Nancy Pelosi’s office.

And Pelosi lays the blame at the feet of GOP senators.

“The Speaker believes that the filibuster has its place, but clearly Senate Republicans are taking what was once a rare procedural move and abusing it to the detriment of progress for America’s working families,” said Pelosi spokesman Drew Hammill told The Hill.

Other Democrats blame squabbling within the party for the legislative logjam.

“They have to find a way to work more effectively to do the people’s business. There’s going to have to be much tighter coordination on major legislation among the White House, Senate and House,” said Simon Rosenberg, founder of the New Democrat Network and a former candidate for Democratic National Committee chairman.

Although the list of stalled bills includes a number of less-than-earth-shattering measures (Star-Spangled Banner Bicentennial Commemorative Coin Act, anyone?), it also includes some legislation of import to those in the legal community, such as:

-H.R. 12, Paycheck Fairness Act, which would treat gender-based employment discrimination complaints involving pay in the same manner as race, disability and age discrimination claims;

-H.R. 4154, Permanent Estate Tax Relief for Families, Farmers and Small Businesses Act, which would restore the now-repealed estate tax to 2090 levels with a $3.5 million exemption;

-H.R.4532, Social Security Disability Applicant’s Access to Professional Representation Act, which would extend a provision allowing attorneys who represent Social Security disability claimants have been able to have their fees withheld from the claimant’s past-due benefits and paid directly to the attorneys; and

– H.R. 2749, Food Safety Enhancement Act, which would give the FDA greater regulatory powers over the national food supply and food providers with the goal of preventing food-borne illnesses and ensuring food safety.

Supreme Court: Home is where the ‘nerve center’ is

The Supreme Court issued two opinions Tuesday: One holding that the principal place of business, for diversity of citizenship jurisdiction purposes, is the “nerve center” of a company which is usually its head quarters; and one holding that a warning to a suspect that he had the right to speak to an attorney “before” being questioned by police is sufficient for Miranda purposes.

More on each opinion here from Lawyers USA.

The curious per curiams of the Supreme Court

Yesterday the Supreme Court disposed of two more cases on the merits before the oral argument stage.

The Court issued two per curiam decisions. In Thaler v. Haynes the Court held that a judge need not observe a potential juror first hand to consider race-neutral “demeanor-based” explanations for the peremptory strike of a black juror.

In Wilkins v. Gaddy, the Court ruled that Sixth Amendment excessive force claims by a prisoner may not be dismissed simply because the injuries are minimal, since such claims are based on the force used and not the injury received.

So far this term, just over half the total opinions issued by the Court have been unanimous unsigned rulings. But that ratio is likely to change this morning, when the justices are expected to release more decisions. Stay tuned for updates.

(Subscribers can read more about the activity at the Supreme Court, including yesterday’s oral arguments, here on Lawyers USA.)

Monday status conference: Flurry of SCOTUS activity

After a four-week midterm break, the U.S. Supreme Court returned to a flurry of activity.

On Friday both the Obama administration and a group of leading tobacco companies petitioned the Court to review a 2006 racketeering conviction against the companies – and the outcome could cost the tobacco companies billions.

The Department of Justice asked the Court to review the RICO case to allow the trial judge to seek past profits from the industry’s “ill-gotten gains” to the tune of $280 billion. Although the cigarette companies lost the case, the court barred the government from collecting the large monetary award.

On the other side, the tobacco companies petitioned the Court to review and overturn the conviction. The Court is expected to decide whether to take up the case in the upcoming weeks.

Today the justices of the Court return to hear oral arguments in two cases, one asking whether an attorneys’ fee award under the Equal Access to Justice Act is payable to the “prevailing party” or the party’s attorney (Astrue v. Ratliff) and the other considering whether the statute of limitations for an EEOC bias charge begins when an employer announces an alleged discriminatory practice, or when the employer implements it (Lewis v. City of Chicago).

Before arguments start, the Court could announce orders, including cert grants. Stay tuned for updates later on this blog.


New ADEA rules: The Employment Opportunity Commission has published new proposed rules clarifying the meaning of “reasonable factors other than age” under the Age Discrimination in Employment Act. (Lawyers USA)

Make safe baby gear – or else: The head of the Consumer Product Safety Commission is warning manufacturers of children’s products such as toys and cribs that failure to respond to complaints quickly and adhere to safety warnings may result in tough penalties, including fines and lawsuits. (Lawyers USA)

Oh, what a feeling: Toyota executives – and their lobbyists – are heading to Washington for congressional hearings over the safety of the company’s vehicles. (The Washington Post)

FDA drug warning: An FDA study, released as part of a Senate investigation, recommend that GlaxoSmithKline’s Avandia, a diabetes medicine, get pulled from the market because it is linked to heart attacks. (The Wall Street Journal)

Friday morning docket: Supremes return

After an extended midterm recess, the justices if the U.S. Supreme Court return today for a private conference. Next week oral arguments resume.

In the meantime, here is a look a the legal headlines:

Something in the salami isn’t clean: Several federal agencies are investigating an outbreak of salmonella infections which has been linked to Italian-style sausage products including salami. (Lawyers USA)

Free to fee: The Legal Services Corporation, the federally-funded organization that provides civil legal aid for the nation’s poor, has repealed a regulation prohibiting it from claiming, collecting and retaining attorney fees. (Lawyers USA)

Biting COBRA: A measure extending unemployment COBRA benefits has been cut from the Senate version of the jobs bill. (Lawyers USA)

Unsolved mysteries: Although homicide charges have never been never brought, prosecutors are gearing up for the trial of three men on obstruction charges in the case involving the slaying of prominent Washington attorney Robert Wone. (The Washington Post).

Crazier things have happened: Could Barack Obama’s next job be Supreme Court justice? (The Washington Post)

Conservative instruction: Virginia Thomas, wife of Justice Clarence Thomas, is behind the launch of Liberty Central, a website designed to provide “history and philosophical instruction to Tea Party activists and those dissatisfied with the current direction of American government.” (Hot Air)

Scalia throws water on secession idea

Say you are a screenwriter, and you are writing a story about the attempt by a state to secede and become a part of Canada, leading to a court battle that goes all the way to the U. S. Supreme Court. Who might you consult to find out the feasibility of such a storyline?

Well, back in 2006, one screenwriter sought the ultimate legal technical advisors: the justices of the U.S. Supreme Court. He wrote a letter to each sitting justice, as well as to retired Justice Sandra Day O’Connor, asking their thoughts on the story.

The screenwriter’s brother – who happens to be New York Personal Injury Law Blog author Eric Turkewitz – thought the request would end up in the wastebasket of the jurists. But surprisingly, one justice responded.

“I am afraid I cannot be of much help with your problem, principally because I cannot imagine that such a question could ever reach the Supreme Court,” replied Justice Antonin Scalia in a letter written on Supreme Court letterhead. “To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, ‘one Nation, indivisible.’)”

DC Dicta wonders if Scalia left out the “under God” part to avoid a whole different constitutional discussion, but we digress…

“Secondly,” Scalia continued, “I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.

“I am sure that poetic license can overcome all that — but you do not need legal advice for that. Good luck with your screenplay,” Scalia concluded.

Turkewitz noted that the letter is evidence that at least one Supreme Court justice firmly believes any notion among members of the Tea Party movement that secession is an option is simply wishful thinking.

Breyer praises nation’s stability after Bush v. Gore

Justice Stephen Breyer said the stability of the nation keeps the sky from falling when controversial rulings like Bush v. Gore are handed down by the U.S. Supreme Court.

Breyer, speaking at the first of a two-day appearance at Yale Law School yesterday, was in the minority of the 5-4 ruling that famously stopped recount efforts in Florida after the presidential election.

According to a report by the New Haven Register, Breyer said he disagreed with the Court’s decision to take the case. Once case was taken, he said, he thought it should have been dismissed. When it wasn’t dismissed, he voted to allow the recount to continue.

But despite the divisiveness of the issue and the high emotions involved, Breyer said the justices never feared lawlessness would ensue or that mobs would take to the streets.

“That characteristic is a national treasure,” Breyer said, adding: “We just breathe it like the air. We went along and accepted it.”