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Monthly Archives: November 2010

Court takes up FELA causation, 2 other cases (access required)

Today the U.S. Supreme Court agreed to decide whether plaintiffs alleging negligence under the Federal Employers’ Liability Act must prove proximate causation.

That case, CSX Transportation v. McBride, was one of three that the Court agreed to review today.

McBride involves a negligence claim brought by a railroad engineer who was injured while conducting train switching operations. He claimed that his hand was injured on a train braking system after becoming fatigued. He sued the railroad company, alleging that he was forced to work long hours in a way that fatigued his hand, leading to the injury.

A jury found in his favor, but the company appealed, arguing that the jury should have been instructed that proper standard was proximate causation. The 7th Circuit disagreed, and the company sought – and has now been granted – certiorari from the Supreme Court.

The Court will also decide whether the invalidity defense under the Patent Act must proved by clear and convincing evidence in Microsoft v. i4i Limited Partnership, and whether the First Amendment forbids Arizona from providing publicly-financed candidates with subsidies that are triggered by independent expenditure groups’ speech against such candidates in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett.

Supremes return, SCOTUS bar loses Texas litigator (access required)

The U.S. Supreme Court resumes oral arguments this morning, and the justices are also expected to issue orders this morning. Tomorrow the Court is set to release one or more opinions. We’ll keep you updated on newsworthy developments.

And tragic news to report: Gregory S. Coleman, the former Texas solicitor general who has argued number cases before the U.S. Supreme Court – including the pending case Skinner v. Switzer, which he argued last month – was killed in a plane crash in Florida last week. Coleman, 47, the well-known appellate litigator who once clerked for Justice Clarence Thomas, was piloting a small plane that crashed just offshore from the Destin Airport. Two other passengers, including his mother-in-law, were also killed, according to Texas Lawyer.

Happy Thanksgiving (access required)

The U.S. Supreme Court returns to action Monday, where the justices are scheduled to issue orders and hear oral arguments. Monday is also when DC Dicta will return. In the meantime, enjoy the turkey, presidential turkey pardons, tryptophan-induced naps and football (go Lions!).

Scalia loves his gadgets (access required)

Justice Antonin Scalia may not fully understand how text messaging works, but that doesn’t mean he’s not hip to the latest gadgets.

In fact, during a recent Federalist Society event, Scalia told the audience that he has both an iPod and an iPad – and that he’s hooked on them.

The Supreme Court’s most senior associate justice is not exactly using a quill to draft his opinions, either. He told the crowd that he does so much work on his computer that he “can hardly write in longhand anymore,” according to the Associated Press.

Scalia’s iPod is filled with classical music – which he uploaded all by himself, he said. The iPad comes in handy too, Scalia said, allowing him to read hefty legal briefs in electronic form instead of having to “schlep the briefs around.”

“It’s a brave new world,” Scalia said.

But his embrace of electronic media only goes so far. When it comes to television cameras, it stops at the courthouse doors.

Allowing Supreme Court proceedings to be televised would lead to broadcast outlets using snippets and sound bites that distort the process, he said.

“Familiarity breeds contempt,” Scalia explained. “The fact that the court is somewhat removed is a good thing.”

Note on comments (access required)

DC Dicta is having some technical difficulties with the comments section of the blog. If you’ve chimed in, but haven’t seen your remarks, we apologize. The issue should be resolved soon, and then the comments should appear.

Wordiest Supreme Court ever (access required)

There is finally an explanation for why DC Dicta recently needed a new, stronger prescription for eyeglasses: opinions from the U.S. Supreme Court are longer than ever.

The New York Times reports that last term, the median length of a majority opinion was 4,751 words – a new record, according to the number-crunching political scientists. When you add concurring and dissenting opinions to the mix, the median jumps to a record-setting 8,265 words. The word count for the opinions in the case Citizens United v. FEC topped 48,000 – roughly the length of “The Great Gatsby,” the Times states.

Compare that to the 1950s, when the high court averaged about 2,000 words per opinion.

With all those words, The Court must be imparting much clearer legal standards for lower courts, law students and legal practitioners to understand, right? Not so, legal experts say.

Take, for example, the decision in the employee “sexting” case City of Ontario v. Quon. The Court took up that case to decide whether employees have a privacy interest in the messages they send on employer-issued mobile devices.

But the Court decided not to decide that issue.

“A broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted,” Justice Anthony Kennedy wrote in the opinion. “It is preferable to dispose of this case on narrower grounds.” So the Court, finding that the employers search was reasonable, did just that. And that took about 6,800 words.

And longer opinions are not necessarily better ones, University of Michigan law professor Edward H. Cooper, told the Times. “The more things you say, the more chances you have to be wrong and the more chances you have to mislead the lower court.”

(Via ABA Journal)

Tribe leaving Justice, but not because of leaked letter (access required)

Noted Harvard professor and presidential advisor Laurence Tribe is leaving his position at the Justice Department in December to return to Massachusetts. But Tribe, who made headlines last month after a 2009 letter he wrote to President Obama criticizing Sonia Sotomayor as a potential Supreme Court nominee was leaked, said his decision to leave was medical, not political.

Tribe told The New York Times that he is leaving to be closer to Massachusetts General Hospital where he is receiving treatment for a benign brain tumor. He was diagnosed with the tumor in 2008, and has recently been experiencing an increase in symptoms such as facial seizures related to the tumor, he told the Times.

He revealed his medical condition “to avoid anyone speculating” that his departure was related to the leaked letter, in which he advised Obama to select Elena Kagan to replace retiring Justice David Souter instead of Sotomayor. In the letter, Tribe called Sotomayor a “bully” and added that she was “not nearly as smart as she thinks she is.”

Tribe said his nine-month tenure as the Justice Department’s senior counselor for access to justice has “been extremely productive.”

“It’s been as difficult as I imagined it would be to get a lot done in an environment with limited funding,” on the whole, Tribe said, “given that it’s been only nine months I feel very good about what we’ve accomplished.”

Justice Breyer will not be your Facebook friend (access required)

The lack of tech savvy among justices of the Supreme Court has been well documented. Now Justice Stephen Breyer admits that the concept of Facebook confounds him.

But he knows enough about it to use it as an example of why he believes the originalism approach to constitutional interpretation doesn’t work.

“If I’m applying the First Amendment, I have to apply it to a world where there’s an Internet, and there’s Facebook, and there are movies like … ‘The Social Network,’ which I couldn’t even understand,” Breyer said according to the AP, referring to the recent biopic about Facebook founder Mark Zuckerberg.

Noting that he had his high court benchmates aren’t exactly on the cutting edge of online communication, Breyer added: “It’s quite clear, we don’t have a Facebook page.”

But Breyer eschewed the approach to constitutional interpretation taken by some of his colleagues, such as Justice Antonin Scalia, which requires the document to be read according to the intent of the framers at the time.

“If you want to have history solve everything, let’s get nine historians and not nine judges,” Breyer said. “And you’ll discover that the nine historians are fighting about the various points on which these cases turn anyway.”

After controversies, Justice Thomas’ wife to leave helm of conservative group (access required)

Just weeks after making headlines for a phone call that revived a decades-old controversy surrounding her husband, Supreme Court Justice Clarence Thomas, Virginia “Ginni” Thomas is stepping down as head of the conservative group she founded earlier this year.

A spokesperson for Liberty Central, an organization Thomas created to be a clearing house for policy and election information to support the Tea Party movement and oppose the agenda of the Obama administration, told The Washington Post that Thomas would relinquish her CEO position with the group.

“She’ll take a back seat so that Liberty Central can continue with its mission without any of the distractions,” spokeswoman Caitlin Carroll of CRC Public Relations in Alexandria told the Post. “After discussing it with the board, Mrs. Thomas determined that it was best for the organization.”

Ginni Thomas ignited a media firestorm last month after she left a voicemail message for Anita Hill asking her to apologize for accusing Justice Thomas of sexual harassment during his 1991 Supreme Court confirmation hearings before the Senate. Hill, initially believing the message to be a prank, turned it over to police. Mrs. Thomas confirmed that she made the call to Hill asking her to “consider an apology sometime and some full explanation of why you did what you did with my husband.” Hill later told media outlets that she had no reason to apologize.

Mrs. Thomas also made headlines based on her involvement with the conservative group itself. Last month The Los Angeles Times reported that the group advocated for the repeal the health care law, calling it unconstitutional. The constitutionality of the law is an issue that has already begun making its way to the Supreme Court, leading some to question the propriety of Mrs. Thomas’ involvement. Liberty Central later backed off calling the healthcare law unconstitutional, removed such wording from its website, and blamed staff errors for the statements.

Critics have also raised conflict-of-interest concerns based on the group’s receipt of large anonymous contributions.

Another spokesperson for Liberty Central denied reports that the group would merge with another organization.

Scalia and Breyer take sparring match on the road (access required)

If you’ve ever visited the U.S. Supreme Court to watch oral arguments, changes are good that you saw a little verbal jousting between Justices Antonin Scalia and Stephen Breyer. The Court’s two most verbal (and funniest) jurists don’t see eye to eye on a number of judicial philosophies.

But an audience in Lubbock Texas didn’t have to travel to Washington to see the two justices spar Friday. Scalia and Breyer brought their battle to the Lubbock Memorial Civic Center.

Round 1: The death penalty

“There’s not an ounceworth of room for debate as to whether it constitutes cruel and unusual punishment because, at the time the Eighth Amendment was adopted – the cruel and unusual punishments clause – it was the only punishment for a felony,” said the Sicilian orginalist from Queens, according to the Associated Press. “It was the definition of a felony. It’s why we have Western movies because horse thieving was a felony.”

“”And indeed there were whipping posts where people were flogged virtually to death up until the middle of the 19th century,” said the pragmatist Frisco Kid. “If we had a case like that today I’d like to see how you’d vote.”

“There’s a lot of stuff that’s stupid that’s not unconstitutional.” Scalia retorted later.

Round 2: Statutory interpretation

“There are ways of determine how and what the legislature was thinking of … to determine what is the object of this law,” Breyer said, The Lubbock Avalanche-Journal reports.

“The only thing you know for sure is the words of the statute,” Scalia said. II don’t at all look to what I think the legislature thought. I frankly don’t care what the legislature thought.”

“That’s the problem,” Breyer quipped.

Round 3: Changing the Constitution

“There’s very little that I would change,” Scalia said. “I would change it back to what they wrote, in some respects. The 17th Amendment [which provides for U.S. senators to be elected by people instead of state legislatures] has changed things enormously. We changed that in a burst of progressivism in 1913, and you can trace the decline of so-called states’ rights throughout the rest of the 20th century. So, don’t mess with the Constitution.”

“There have been lots of ups and downs in the enforcement of this Constitution, and one of the things that’s been quite ugly – didn’t save us from the Civil War – is that there is a system of changing the Constitution through amendment,” Breyer said. “It’s possible to do but not too easy.”

While the verbal fireworks are fun, Breyer said the two don’t always lock rams.

“From the outside you think we disagree about everything, but we’re unanimous in our court about 40 percent of the time,” Breyer said.

But, Breyer added later: “We can disagree about almost anything.”

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