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Monthly Archives: May 2010

Friday status conference: Memorial recess edition

Lawmakers are set to begin their Memorial Day holiday recess. But the Supreme Court will be back on Tuesday to issue more orders and opinions.

Meanwhile, here are some headlines:

Hit or misstatements: An annual government audit has found material misstatements in 22 percent of bankruptcy cases. (Lawyers USA)

Freeing the fee: A ruling from the U.S. Supreme Court earlier this week might make it easier for ERISA claimants to recover attorney fees and costs. (Lawyers USA)

Catch-22? Some employment attorneys say the Supreme Court’s Lewis v. Chicago opinion makes it even harder for employers to know how to test job applicants without opening themselves up to employment discrimination liability. (Lawyers USA)

Kick in the pants: The “pants suit” administrative law judge – yes the same one who unsuccessfully sued his dry cleaners for $54 million over a lost pair of pants – is having no better luck in the courts with his wrongful termination suit. (BLT blog)

You be the judge: “I am happy to see that this latest nominee is not a federal judge — and not a judge at all,” said Justice Antonin Scalia. (Washington Post)

Souter’s working retirement

If you are arguing before the 1st Circuit Court of Appeals, you may be surprised by who find sitting among the judges on the panel.

Justice David Souter may have retired from the U.S. Supreme Court, but he is not tired of the law. He travels from his New Hampshire home to the downtown Boston courthouse one of two days a month to hear appellate cases arising in the Northeast.

And he still takes judging very seriously, according to a report by the Associated Press. During recent oral arguments, Souter – using his trademark polite-but-to-the-point style – questioned New Hampshire attorney Sven Wiberg.

“May I ask you a question?” Souter began, sounding almost like his soon-to-be retired colleague. “I will tell you, you do not have to answer it as far as I’m concerned. Do you believe you have a good faith basis in law to make that argument?”

Souter is not the only former Supreme who is still working. Retired Justice Sandra Day O’Connor also continues to hear cases on lower courts. She also travels the country advocating for causes like boosting civics education and ending judicial elections.

Leahy decries GOP ‘double standard’ on Kagan

Yesterday on the Senate floor, Sen. Patrick Leahy blasted Republicans for their criticism of Supreme Court nominee Elena Kagan, saying the GOP lawmakers are applying a double standard.

Several GOP lawmakers have voice concerns over Kagan’s lack of judicial experience. The solicitor general has never served as a judge.

Such criticism, Leahy said, “ignore[s] Senate Republicans’ own recent statements praising President Bush’s nomination of Harriet Miers for being someone who had not served a judge, calling her a ‘wonderful choice’ who would ‘fill very important gaps in the Supreme Court,'” Leahy said, referring to the former White House counsel to President Bush. “Now that a Democratic President is nominating, they reverse themselves to contend that lack of judicial experience is a matter for ‘concern,’ is ‘troubling,’ and a matter that ‘warrants great scrutiny.’ …Republicans should not apply a double standard to the nomination of this qualified woman.”

Leahy added that, but for Republican opposition, Kagan would have judicial experience.

” President Clinton nominated her to the D.C. Circuit in 1999 and it was Senate Republicans who refused to consider her nomination,” Leahy said.  “Had they done so she would have more than 10 years of judicial experience.”

Kagan’s confirmation hearing is set to begin June 28.

Here is Leahy’s floor statement.

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More on the Supremes’ busy day

Yesterday the Supreme Court made news for what it did do – like ruling that black Chicago firefighter candidates didn’t wait too long to bring a disparate impact discrimination suit. But the Court also made some newsworthy decisions about what it will do.

Next term the court will decide under what circumstances the Federal Arbitration Act preempts a state from conditioning the enforcement of an arbitration agreement on the availability of class-wide arbitration. That case, AT&T Mobility v. Concepcion, was one of five certiorari grants by the Court yesterday.

The Court agreed to decide whether a tort claim against a manufacturer for choosing not to install a combination lap/shoulder belt in a vehicle’s middle backseat is preempted by a federal motor vehicle regulation in Williamson v. Mazda Motor of America.

And the Court also made some noteworthy decisions about what it won’t do – such as rule on the case this term asking whether individuals have a private right of action for criminal contempt, or if only the government may bring such a charge (instead, the justices dismissed the case Robertson v. U.S. ex rel. Watson as improvidently granted). The justices also declined to take up a closely-watched case asking whether the work product doctrine prevents IRS officials from examining materials prepared by attorneys in support of audited corporate financial statements. That means the 1st Circuit ruling in the case Textron v. U.S. that the documents must be disclosed stands.

Court hands down employment, ERISA, criminal rulings and more

A plaintiff who does not file a timely charge challenging the adoption of an employment practice may still assert a disparate impact claim challenging the employer’s later application of that practice as long as he can make a prima facie disparate impact case, the U.S. Supreme Court ruled today.

That opinion in Lewis v. Chicago – known by some as the other firefighters’ discrimination case – was one of seven case opinions the Court issued this morning.

In Hardt v. Reliance Standard Life Ins. Co., the Court ruled that an ERISA plaintiff need not be a “prevailing party” to be eligible for an attorney’s fees award under a related fee-shifting statute.

In U.S. v. O’Brien, the Court ruled that the use of a machine gun is an element to be proved to the jury beyond a reasonable doubt, not a sentencing factor to be proved to the judge at sentencing.

The Court also held that the plain error review standard does not require the reversal of a conviction where part of the conduct took place before the criminal statute was enacted. That ruling came in U.S. v. Marcus.

In American Needle, Inc. v. National Football League, the Court held that decisions about licensing of NFL teams’ separately owned intellectual property constitute concerted activity and are thus covered by §1 of the Sherman Act.

The Court also issued a per curiam opinion in the criminal case Jefferson v. Upton, and dismissed the criminal contempt case Robertson v. U.S. ex rel. Watson as improvidently granted.

The justices also added five cases to its docket for next term. But the Court declined to grant certiorari the closely-watched case Textron v. U.S., which asked whether work product doctrine prevents tax officials from examining materials prepared by attorneys in support of audited corporate financial statements. More on that case here from Lawyers USA.

Much more on this very busy day at the Court to come on this blog, and on Lawyers USA online.

Monday status conference: Document dumps, delays, and decisions!

Remember way back when Elena Kagan was first nominated to the Supreme Court? And folks were saying that, because she is not a former judge, she wouldn’t have much of a paper trail?

Well, it looks like that may not be true.

The Clinton presidential library (Kagan previously worked in the Clinton administration) has identified about 168,000 pages of documents that may be of interest to members of the Senate Judiciary Committee.

Will committee members have enough time to wade through that documentation before Kagan’s confirmation hearings are scheduled to begin on June 28? The committee’s ranking member, Sen. Jeff Sessions, doesn’t think so. He’s calling for a delay, according to the Wall Street Journal’s Washington Wire.

But wait, there’s more! Perhaps the record won’t be that voluminous after all. Former President Clinton could object to the release of the some the documents, citing executive confidentiality.

Meanwhile, this morning the current justices of the Supreme Court will get back to doing what they do: releasing orders and opinions. Check back here for any newsworthy developments.


Open up: As part of a Food and Drug Administration initiative to help consumers, stakeholders and others understand how the agency operates and makes decisions, a task force has unveiled 21 draft transparency proposals for public comment. (Lawyers USA)

The lawyer’s lawmaker: Sen. Arlen Specter’s election defeat marks the end of a 30-year career for the longtime member of the powerful Senate Judiciary Committee who often pressed for progress on issues important to lawyers. (Lawyers USA)

New deputy in town: James Cole is President Obama’s nominee for deputy attorney general. (ABA Journal, Washington Post)

When to end a sentence? The U.S. Sentencing Commission will hear testimony on issues including mandatory minimum sentences at its scheduled hearing this week. (BLT Blog)

Kagan lampooned with a burger

Harvard Law School students may no longer have Elena Kagan as a dean, but they can now have her on a plate.

Last week Mr. Bartley’s Gourmet Burgers, a storied Cambridge, Mass., haunt located just across Massachusetts Avenue from Harvard Yard, unveiled it’s latest creation: the Elena Kagan Burger.

“It has a liberal amount of salsa, grilled pineapple, because of the Obama connection – she’s cozy with Barack and he’s from Hawaii – and it comes with onion rings,” said Billy Bartley, general manager of the burger joint known for naming dishes after politicians, sports figures and other famous subjects.

But if you think the namesake burger was created to honor the former Harvard Law School dean, think again. Bartley said the move was, in part, a political statement.

“I thought the coziness [between] her and Barack was inappropriate, but what do I know?” Bartley explained to the Boston Globe. “I thought a Supreme Court justice should be further from the president than she is.”

The burger’s menu description shows that the sandwich wasn’t exactly created with love for the nominee. “Experience??? ‘Don’t ask, don’t tell’,” the menu reads, according to the Harvard Crimson. It presumably refers both to the fact that Kagan has never been a judge, and to her stance on the military’s policy on gays.

But Bartley revealed another motivation behind the burger. And it’s about as American as it gets.

“For the attention, so I can make money,” Bartley told the Globe.

Kagan’s hearing set to begin June 28

Supreme Court nominee Elena Kagan’s Senate confirmation hearing will kick off Monday, June 28, Judiciary Committee Chairman Patrick Leahy announced today.

Leahy said the timeline closely reflects the confirmation schedules of Chief Justice John G. Roberts, Jr. and Justice Sonia Sotomayor, whose confirmation hearings began 48 and 49 days after nomination, respectively. Kagan’s hearing is schedule for 49 days after nomination.

“There is no reason to unduly delay consideration of this nomination,” Leahy said.  “Justice Stevens announced on April 9 that he would be leaving the Court.  He noted that ‘it would be in the best interests of the Court to have [his] successor appointed and confirmed well in advance of the commencement of the Court’s next Term,’ and I wholeheartedly agree with Justice Stevens.  That is in the best interests of the Court, and the country.”

Ranking Republican member Sen. Jeff Sessions had expressed a desire the start the hearings after July 4, but said today that it was Leahy’s prerogative to set the date.

“At this time, it remains to be seen whether the schedule set by the Chairman will be adequate to allow us to meet our important constitutional responsibility to thoroughly review Ms. Kagan’s record on behalf of the American people and to hold respectful and substantive hearings that reflect well on both our Committee and the entire Senate,” Sessions said in a statement. “Additionally, as I told Chairman Leahy, developments may occur during the course of such a review that simply require additional time-such as issues relating to document production or the need for more information connected with substantive controversies. If that is the case, we would be obligated to demand additional time.”

Kagan submits questionnaire answers – with one omission

Want to know a little more about Supreme Court nominee Elena Kagan? You’re in luck!

Yesterday Senate Judiciary Committee Chairman Patrick Leahy and Ranking Member Jeff Sessions released Kagan’s answers to the committee’s questionnaire. Her responses detail a host of facts about the nominee, from her net worth (approximately $1.8 million), to a list of every occasion where she has given a speech, to a list of just about every news article in which she’s been quoted.

And perhaps she was trying to be as thorough as possible, or perhaps she was trying to demonstrate her sense of humor, but she noted the following about an article that contained quotes from her:

“An April Fool’s article in the Harvard Law Record entitled, ‘Administration Cuts Internet in Classrooms’ contains made-up quotes attributed to me. Although I did not give these quotes or provide an interview for this article, I am including it as an attachment.”

DC Dicta did notice one omission in the long list of articles in which she was quoted. In 2003 Kagan was interviewed by Lawyers USA‘s own Correy Stephenson for an article in our sister publication Massachusetts Lawyers Weekly (sub. req’d). In that piece, written soon after Kagan took the helm at Harvard Law School, Kagan spoke of how her experience working in the White House might help her as dean:

“In government, one of the things I had to do was manage people,” Kagan told Stephenson, “and certainly one of the tasks of a dean is management. I also learned some political skills, and certainly deans who have good political skills have an advantage over deans who don’t.”

Perhaps the same can be said of Supreme Court justices.

Leahy said yesterday that the White House has already asked the Clinton Library to speed up the process of producing documents from Kagan’s time in the Clinton White House as associate counsel and as a domestic policy adviser.  “These materials, along with the record we compiled last year in connection with her nomination to be Solicitor General of the United States, put us well down the road toward our preparation for her confirmation hearing,” Leahy said.

Leahy also said he will set the date of Kagan’s confirmation hearings soon.

Kagan hangs up general’s cap

Elena Kagan is no longer acting as the government’s top attorney.

In a letter sent yesterday to U.S. Supreme Court Clerk William Suter, the Supreme Court nominee informed the Court that she has stepped aside as solicitor general during her confirmation process.

Deputy Solicitor General Neal K. Katyal took over as acting solicitor general, Kagan wrote. “I ask that you please address future correspondence from the Court to him, and that the Court’s docket sheets reflect his designation as Counsel of Record,” the letter states, according to the Associated Press.

Katyal assumed the new role May 10 – the day President Barack Obama announced Kagan’s nomination to the Court. He has formerly served as a national security adviser in the Justice Department, was co-counsel for former Vice President Al Gore in the 2000 election case Bush v. Gore, and was previously a clerk for Justice Stephen Breyer. He has argued numerous cases before the court.