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Monthly Archives: April 2010

Supreme Court hands down big lawyer-related rulings

The Supreme Court handed down three decisions today – two of which directly affect attorneys.

In Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, the Court held that a law firm cannot avoid liability under the Fair Debt Collection Practices Act with a “bona fide error” defense. The case involved a law firm that sent a letter to a debtor on behalf of a mortgage company, but the letter misstated the debtor’s obligation. The lawyers argued that it was an honest mistake – they simply misunderstood the law. But ignorance of the law is no defense, the Court held.

In Perdue v. Kenny A., the Court held that a judge may increase attorney’s fees for prevailing parties in civil rights actions above the lodestar for superior performance, but only in extraordinary circumstances – and even then, there’s got to be a limit to it, depending on the circumstances. In this case, the district court didn’t adequately justify the 75 percent fee boost they gave to the plaintiffs’ lawyers in this case.

And in an ERISA ruling, Conkright v. Frommert, the Court held that deference should have been given to a plan administrator when calculating benefits when that administrator is given the “power to construe disputed or doubtful terms.” In this case, the lower court should have deferred to a plan administrator’s interpretations amid claims by beneficiaries that a “phantom account method.”

Much more on these cases to come on this blog, and on Lawyers USA online.

Emanuel predicts ‘huge’ battle over SCOTUS nominee

“I think that there’ll be a huge, huge battle… I think the President will obviously appoint a person that he thinks is appropriate and right for the Supreme Court, as he laid out the kind of criteria in the Justice Stevens model. I think if people took a fresh look at that, I don’t think it has to be that type of battle. But we may be at a system and a time in which we have that type of battle.”

~ White House Chief of Staff Rahm Emanuel on “Charlie Rose” last night (via MSNBC’s First Read)

Court strikes down animal cruelty “crush video” statute

In its only ruling of the day, the U.S. Supreme struck down a federal statue banning the creation, possession or sale of depictions of animal cruelty.

The law, enacted primarily to bar “crush videos” that sexually fetishize the torture and killing of small animals, is unconstitutionally overbroad, the Court held in the 8-1 ruling in U.S. v. Stevens.

The ruling isn’t much of a surprise for anyone who attended or read about oral arguments in the case back in October.  Several justices noted the law could prohibit hunting videos and other forms of speech that are a far cry from depictions of women crushing kittens under their stilettos. When an attorney for the government tried to argue that the statute didn’t violate the First Amendment because its language limited the ban to depictions of animals being “maimed, mutilated, tortured, wounded, or killed,” Justice Antonin Scalia leaned forward and interrupted him.

“Or ‘killed!'” Scalia exclaimed. “How do you limit ‘killed?!’ …‘Kill’ has one meaning, which is ‘kill!’ … You don’t have a single case in which an absolutely clear word like ‘kill’ is given a more narrow meaning because of other words that are different from that word.”

It was Chief Justice John G. Roberts, Jr. who wrote the opinion, though. In it, the Court acknowledged  the long history of American laws outlawing animal cruelty. But it declined to carve out a specific First Amendment exclusion for depictions of such acts.

And when the law was put to the constitutional test, Roberts wrote, it failed. Badly.

“We read §48 to create a criminal prohibition of alarming breadth,” Roberts wrote, echoing Scalia oral argument sentiment. “To begin with, the text of the statute’s ban on a ‘depiction of animal cruelty’ nowhere requires that the depicted conduct be cruel. That text applies to ‘any . . . depiction’ in which ‘a living animal is intentionally maimed, mutilated, tortured, wounded, or killed.’ ‘[M]aimed, mutilated, [and] tortured’ convey cruelty, but ‘wounded’ or ‘killed’ do not suggest any such limitation.”

In a lengthy dissent, Justice Samuel Alito disagreed with the Court’s decision to strike down a “valuable statute” aimed at banning “depraved entertainment that has no social value.”

Alito said an overbreadth ruling is “strong medicine” that should be reserved only for the most extreme of laws.

“Instead of applying the doctrine of overbreadth, I would vacate the decision below and instruct the Court of Appeals on remand to decide whether the videos that respondent sold are constitutionally protected,” Alito wrote. “If the question of overbreadth is to be decided, however, I do not think the present record supports the Court’s conclusion that [the law] bans a substantial quantity of protected speech.”

Stevens celebrates a birthday and a milestone

Justice John Paul Stevens has said reaching milestones has never been his objective. But he has reached one today nonetheless. He is now one of only two justices to turn 90 as an active member of the bench. (The other was Justice Oliver Wendell Holmes, Jr.)

Happy Birthday!

UPDATE: President Obama sent this letter (HT to SCOTUSblog) to Justice Stevens:

Dear Justice Stevens,

In 1931, on the only other occasion that a sitting Supreme Court Justice celebrated his 90th birthday, President Hoover wrote the following to Justice Oliver Wendell Holmes: “I most cordially congratulate you upon your ninetieth birthday anniversary, but yet more do I congratulate our country upon the continuance of your splendid services and hope that you may long live in health and strength to carry them forward.”

And so do I, on the occasion of your 90th birthday, congratulate both you and our country for your long and esteemed tenure in public service. For the last 35 years of your remarkable 90, the Nation has benefited from the rigor, courage, and integrity that have marked your service on the Supreme Court of the United States. With the thoughtfulness and humility of your questions from the bench, and the independence and wisdom you have brought to the judgments the Court has rendered, you have stood guardian of the Constitution and the rule of law and helped move this Nation towards that more perfect Union. Your retirement at the end of the Court’s term will mark the completion of a judicial career, like that of Justice Holmes, that has left an undeniable imprint on our country’s jurisprudence. Our system of justice, and our Nation, are stronger and fairer because of your sterling contributions.

On behalf of the country, I thank you for your distinguished service and wish you and your wife Maryan much happiness.

Best wishes,

/signed/ Barack Obama

Technical difficulties at the Supreme Court

During oral arguments today in the case City of Ontario v. Quon, which considers whether police officers had an expectation of privacy in personal (and sexually explicit) text messages sent on pagers issued to them by the city, the justices of the Supreme Court at times seemed to struggle with the technology involved.

The first sign was about midway through the argument, when Chief Justice John G. Roberts, Jr. – who is known to write out his opinions in long hand with pen and paper instead of a computer – asked what the difference was “between email and a pager?” *

Other justices’ questions showed that they probably don’t spend a lot of time texting and tweeting away from their iPhones either.

At one point, Justice Anthony Kennedy asked what would happen if a text message was sent to an officer at the same time he was sending one to someone else.

“Does it say: ‘Your call is important to us, and we will get back to you?'” Kennedy asked.

Justice Antonin Scalia wrangled a bit with the idea of a service provider.

“You mean (the text) doesn’t go right to me?” he asked.

Then he asked whether they can be printed out in hard copy.

“Could Quon print these spicy little conversations and send them to his buddies?” Scalia asked.

It wasn’t just the justices who had technical difficulties. When Justice Samuel Alito asked Quon’s attorney Dieter Dammeier if officers could delete text messages from their pagers in a way that would prevent the city from retrieving them from the wireless carrier later, Dammeier said that they could.

A few minutes later, Alito gave Dammeier another shot at that question.

“Are you sure about your answer on deletion?” Alito asked.

Dammeier admitted that he didn’t know. “I couldn’t be certain,” he said.

More on oral arguments in the case here on Lawyers USA Online.

* UPDATE: As several commentators have noted, the Court’s official transcript quotes Justice Roberts as asking, “what is the difference between the pager and the e-mail?” – suggesting he may have been inquiring in this context, and not more generally.

Monday status conference: Return of the Supremes

The US. Supreme Court resumes oral arguments today with two high-profile cases.

First the justice will take up whether a public university law school can deny funding and recognition to a religious student organization that bans non-religious and gay students from its membership in Christian Legal Society v. Martinez.

Then the justices take up City of Ontario v. Quon, a case considering whether employees have a reasonable expectation of privacy in the text messages they send using electronic devices supplied by their employer. The case could have wide-ranging implications affecting how employees use the cell phones, laptop computers and other equipment given to them to use on the job.

More on these arguments, as well as any newsworthy orders today from the Court, later on this blog and on Lawyers USA online.

Meanwhile, in other news:

Scalia speaks: During the Court’s latest recess, several justices took to the lecture circuit. Justice Scalia spoke Friday at the University of Virginia, where he used to be a law professor, and discussed – wait for it – originalism.  (Charlottesville Daily Progress)

Breyer’s prediction: Meanwhile, while testifying last week along with Justice Clarence Thomas before Congress, Justice Stephen Breyer predicted that the new health care reform law would probably end up before the Supreme Court for review. (AP)

Not ready for a close-up: Would you like to see Supreme Court proceedings televised? Don’t hold your breath, Breyer said. (Washington Post)

The absent justice? If Solicitor General Elena Kagan becomes a Supreme Court justice this summer, she may have to recuse herself from a host of cases being considered by the Court. Might that harm her chances of getting President Obama’s nod? (SCOTUSblog)

New issue in NLRB case: The Supreme Court asked the attorneys for the parties in the case testing the authority of the former two-member National Labor Relations Board to file supplemental briefs on the effect of the two recent appointments. (SCOTUSblog)

Clinton‘s SCOTUS advice: Former President Bill Clinton thinks President Obama should pick a young non-judge to replace retiring Justice John Paul Stevens. And neither he nor his wife fit the bill, he added. (AP)

Friday morning docket: a public (and incorrect) outing

White House officials were incensed yesterday by a CBS News online column asserting that Solicitor General Elena Kagan, who is reportedly at the top of President Obama’s Supreme Court nominee list, is a lesbian.

According to the Washington Post‘s Howard Kurtz, White House officials immediately assailed the column, written by former Bush aide Ben Domenech, which a asserted that the choice to put the first “openly gay justice” on the bench would please Obama’s base. White House officials said Kagan is not gay.

At first CBS officials refused to pull the online post. Instead, Domenech added an update saying Kagan was apparently “still closeted.”

But by the end of the day yesterday, executives at CBS pulled the column, saying it “just got through our filters” and that such an allegation should not have been published without “more evidence of its accuracy.”

Domenech later apologized, saying the information was based on rumor. “I offer my sincere apologies to Ms. Kagan if she is offended at all by my repetition of a Harvard rumor in a speculative blog post,” he said.

Anita Dunn, a former White House communications director who is helping White House officials with the Supreme Court nomination process, blasted the news organization for giving such a long leash to a writer who has faced plagiarism charges in the past.

“The fact that they’ve chosen to become enablers of people posting lies on their site tells us where the journalistic standards of CBS are in 2010,” Dunn told the Post, adding that such stories “appl(y) old stereotypes to single women with successful careers.”

Meanwhile, in other headlines:

The genteel justice: Retiring Justice John Paul Stevens’ oral argument questions are as tough as any other justice, but they come in a much more polite form. Supreme Court practitioners reflect on being asked: “May I ask you this question?” (Lawyers USA)

No fast audio: For the seventh time this term, the Supreme Court has declined a request to release same-day audio of oral arguments to broadcast stations. This is the first term in four years where no same-day audio was released, despite several high-profile cases on the docket dealing with campaign finance rules, gun rights, and Monday’s First Amendment school case. (ABA Journal)

Med-mal debate rages: A letter to AAJ’s membership about the health care law was quickly assailed by tort reform groups, demonstrating that the debate over medical malpractice reform will live long after lawmakers’ wrangling over the legislation’s language. (Lawyers USA)

Same-sex visitation rights: The Obama Administration will issue new rules aimed at granting hospital visiting rights to same-sex partners. (New York Times)

Breyer’s advice to nominee: Don’t get cute with the Senate

Justice Stephen Breyer has some advice for the person President Obama will select to replace retiring Justice John Paul Stevens on the Supreme Court: at your Senate confirmation hearings, just answer the questions.

“Listen to the question. Then answer it. And in doing so, don’t try to make some clever point,” Breyer said during a talk yesterday at Duke University School of Law, according to the News & Observer.

He said the advice may sound simple, but it’s effective.

“The senator will go on to the next question, and pretty soon he’ll run out of questions,” said Breyer. “And then the rest of the senators will run out of questions, and you’ll be confirmed.”

Alito on curve balls, playing second, and Stevens’ Babe Ruth moment

During the last World Series, DC Dicta wondered if there were any friendly wagers between lifelong Phillies fan Justice Samuel Alito and Justices Antonin Scalia and Sonia Sotomayor, lifelong Yankees backers.

Turns out, there was!

“Yes. Unfortunately I had a bet with Justice Sotomayor about the outcome of the World Series,” Alito told the Philadelphia Daily News in a baseball-themed Q&A. “She’s a Yankees fan. Justice Scalia is a Yankees fan. So we had a bet, cheesesteaks vs. Nathan’s hot dogs and I had to provide Nathan’s hot dogs.”

Alito, whose Supreme Court chambers is filled with Phillies gear and memorabilia, took his entire staff to see the Phillies play at Nationals Park for the first game of the season earlier this month.  The Trenton native – who played second base from little league until high school when nearsightedness and the use of curve balls put an end to his baseball career – told the paper that he could have easily been a Yankees fan like his two colleagues.

“I could have,” he said. “My father was a Phillies fan, so I guess that’s the explanation. But, yeah, my neighborhood was split down the middle. My friend across the street and his father were rabid Yankees fans. In those days there were some [Brooklyn] Dodgers fans and New York Giants fans, but I was a Phillies fan from the beginning, when I first became interested in baseball.”

And baseball is a popular topic among the justices of the Court, he said.

“Justice [Stephen] Breyer is a Red Sox fan and Justice [John Paul] Stevens is a Cubs fan. He claims to have been present when Babe Ruth called his shot [in the 1932 World Series] at Wrigley Field,” Alito said with a smile. “Although about 200,000 people claim to have been in attendance at that game, I trust him that he actually was.”

President, senators to chat about Supreme vacancy

The White House has announced that President Obama will meet net week with Democratic and Republican Senate leaders to discuss the replacement of Justice John Paul Stevens on the U.S. Supreme Court.

On April 21, Senate Majority Leader Harry Reid, D-Nev., Minority Leader Mitch McConnell R-Ky., Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., and ranking Republican committee member Jeff Sessions, R-Ala., will meet with Obama at the White House.

Meanwhile, as the most oft-mentioned contenders continue to be Solicitor General Elena Kagan and federal Judges Diane Wood and Merrick Garland, the total list of candidates being considered by Obama is about 10 long. And some Senate Democrats are hoping for a nominee who comes from outside the Ivy League or the federal judiciary.

Citizens United showed that when you get someone who’s too ethereal, they miss the practical,” said New York Democrat Sen. Charles E. Schumer to the Washington Post, speaking of the controversial campaign finance ruling that lifted some campaign spending limits on corporations. “If you’ve had practical experience on the ground, in this case in politics, you know how destructive that can be.” Currently Stevens is the only justice not to attend an Ivy League law school.