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Monthly Archives: August 2011

A rock (disparate treatment) and a hard place (disparate impact)

Remember those two Supreme Court rulings involving firefighter applicants  – one ordering New Haven to certify entrance exam results that excluded a large percentage of minority job applicants (Ricci v. DeStefano) and another allowing a disparate impact claim to be brought by black firefighter applicants who say they were excluded based on the results of an application test (Lewis v. Chicago)?

And remember how folks predicted that the rulings would put employers in a damned-if-you-do, damned-if-you-don’t kind of situation? (After the Lewis ruling, Chicago’s Corporation Counsel Mara Georges said: “The employer is placed in a Catch-22: Use the exam results, which have an adverse impact, and risk lawsuits from the group adversely impacted. Or disregard the exam results, and risk lawsuits from those who stand to benefit from the results.”

Well, that situation seems to be happening in New Haven.

A 2nd Circuit ruling yesterday allowed the black firefighters excluded by the entrance exam result sin Ricci to proceed with a disparate impact claim, despite the fact that Supreme Court ordered the city to certify the results, and the city entered a multi-million-dollar settlement with the Ricci disparate treatment plaintiffs last month.

The plaintiff in the disparate impact case claims the test used by the city was bad, and the city should have chosen one that did not have the effect of excluding most minority applicants. And his attorney said there is no Catch-22.

“I don’t think it’s a paradox,” David Rosen told the Wall Street Journal.  “Even though the city didn’t bother to go out and find it and produce it, there is a lot of evidence that the test was a bad test. So we would like our day in court.”

The Supreme Court was anticipating that a disparate impact suit would follow in the Ricci case. That decision stated: “If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.”

But yesterday the 2nd Circuit called that language “a single sentence of dicta.”

Second Amendment to get second SCOTUS look?

The news U.S. Supreme Court term is already set to be one for the record books with issues like immigration reform, same-sex marriage rights, the constitutionality of warrantless GPS tracking and the health care law all on tap. But there could be another high profile issue before the justices – again: the Second Amendment.

The Washington Post’s Robert Barnes reports that since the Court handed down rulings in DC v. Heller and McDonald v. Chicago that the individual right to own firearms applies in federal, state and local laws, gun rights proponents have actually been losing challenges in lower courts.

A plethora of lawsuits have been filed seeking to strike down gun control laws, but according to a report by the Brady Center to Prevent Gun Violence titled “Hallow Victory?”  the courts are applying Heller and McDonald in a very narrow way.

“Three years and more than 400 legal challenges later, courts — so far — have held that the Supreme Court’s ruling in Heller was narrow and limited, and that the Second Amendment does not interfere with the people’s right to enact legislation protecting families and communities from gun violence,” the report stated.

That all could mean the Supreme Court could get a second shot and deciding just when gun control laws run afoul of the Second Amendment. As stated in a Maryland Court of Appeals ruling: “If the Supreme Court . . .meant its holding to extend beyond home possession, it will need to say so more plainly.”

More here from the Post.

Study: Poor litigants less likely to reach the Supremes

Poor litigants – including prisoners – are 30 percent less likely to have their cases heard by the U.S. Supreme Court than those with money, a Michigan State University study has found.

“My research question was, ‘what influences the Supreme Court’s decision to grant or deny review of a case?’” said MSU senior Sydney Hawthorne, who won a special research apprenticeship to conduct the study with the help of faulty members. “There are thousands of cases each year that want to get reviewed before the Supreme Court, so how do they beat the odds?”

After analyzing hundreds of certiorari petitions filed with the Court, the research team discovered that Supreme Court granted review in about 8 percent of all paid petitions, but in only 1 percent of pauper petitions.

Prof. Ryan Black said the study demonstrates the importance of having a good lawyer. The Supreme Court is more likely to grant cert in cases that have wide policy implications, and a good attorney is better equipped to recognize and frame an issue to pique the justices’ interest. And good lawyers cost money.

“The whole decision process is pretty one-sided to begin with,” Black said in a press release announcing the study’s results. “But if you’re at the bottom of the food chain, it’s pretty dismal in terms of odds.”

The researchers also found that unpublished lower court opinions were 50 percent less likely to be heard by the nation’s highest court.

Arizona files SCOTUS cert petition over immigration law

Arizona Gov. Jan Brewer has asked the U.S. Supreme Court to reverse a 9th Circuit ruling blocking enforcement of parts of the state’s controversial immigration law, S.B. 1070, which allows police to check the immigration status of individuals.

The move officially puts the case before the nation’s highest court, which must now decide whether to take the matter up next term. At issue in the case is whether states have the ability to implement tough immigration laws, or if that area is solely within the jurisdiction of federal lawmakers.

“It’s going to be pretty hard for the federal government to deny these are issues of primary importance,” said Paul Clement, a Washington, D.C., attorney hired by Brewer to prepare Wednesday’s petition, according to the Arizona Republic. “It’s not like immigration is an area of absolutely exclusive federal control, and with Arizona bearing such a disproportionate burden (of the immigration problem), a one-size-fits-all solution doesn’t make sense.”

Legal commentators on an online symposium hosted by SCOTUSblog have been chiming in for weeks with opinions on whether the Court will rule in the Arizona’s favor, or side with the federal government – or whether the Court will decide to take up the matter at all.

ABA puts ‘for sale’ sign on historic DC building

ABA BuildingLooking for some stately digs in the heart of downtown DC, just a pebble’s toss from the White House? You’re in luck! The American Bar Association is putting its Washington building on the sales block.

The ABA, according to the National Law Journal’s BLT blog, is seeking $65 million for the property, located on the corner of 15th and H Streets in Northwest Washington. That asking price would represent a sizable profit for the building, purchased in the depressed housing market of the early ‘90s for $20 million. “We have bidders who have come in higher than the price we thought we would get,” ABA Executive Director Jack Rives told the BLT.

Despite the building’s grand marble and columned exterior, ABA officials said the decision to look for a new location was based on the fact that they’ve outgrown the interior, which treasurer Alice Richmond described as a “rabbit warren” of small offices.

So far the ABA has considered 8 new locations, and plans to have further news about the move by the fall.

O’Connor to lawyers and judges: ‘Wake up’ and fight court funding cuts

Retired Supreme Court Justice Sandra Day O’Connor said the nation’s courts are in crisis because of funding cuts. And what’s worse, legal practitioners don’t seem to be paying attention.

“No one, not even lawyers and judges, understands what a financial bind the courts are in,” O’Connor told the ABA Journal after speaking on a panel at the ABA Annual Meeting this past weekend in Toronto.

What’s more, O’Connor said, “[t]hey’re not ready for the political fights” that may be needed to return funding to the country’s judicial systems to adequate levels. “We have to wake them up.”

O’Connor urged legal practitioners  and judges to educate legislators on the funding problems, urging lawmakers on both sides of the aisle to act. “We need advocacy on this issue by lawyers at all levels,” she said, suggesting that business leaders be brought in as well because legislators “will listen to what they say.”

“Make sure to drop in some sob stories,” O’Connor suggested.

And as a last resort: “If things get really bad, buy some beer and Mexican food, and have them all over.”

Scalia’s in the batter’s box

Good news for Justice Antonin Scalia fanatics:  in addition to bobblehead dolls and t-shirts dedicated to the Supreme Court’s most senior associate justice, now Scalia baseball cards are available.

The Green Bag quarterly legal journal has released the latest card in the Supreme Court Sluggers series, featuring Scalia wearing his black robe as well as a baseball hat and cleats and swinging a few bats as if warming up for his turn at bat. He stands with the images of Founding Fathers George Washington, James Madison and Alexander Hamilton, a reference to Scalia’s originalist approach to jurisprudence.

According to the ABA Journal, it’s the fourth card in the Green Bag’s series, after Chief Justice John G. Roberts Jr. and Justices John Paul Stevens and Arthur Goldberg.

DC Dicta could not help but notice one curiosity about the image, though:  Scalia – who grew up in Queens and is a Yankees fan – is donning a red hat and (gasp!) red socks. Prehaps it was just easier to draw than pinstripes?

On the bench, Scalia and Breyer are Felix and Oscar

In life, there are a few certainties. Among them, death and taxes, the Earth orbiting the sun, and Supreme Court Justices Antonin Scalia and Stephen Breyer disagreeing about something.

On the bench, Scalia and Breyer are the Supreme Court’s very own “Odd Couple,” wasting few opportunities to verbally spar on the bench and give new meaning to the term “oral argument.”

Read more about the justices sparring – and listen to audio clips – in Lawyers USA’s special audio feature “At the High Court, it’s still Scalia v. Breyer” (Sub. Req’d)

Sunday at Lincoln with Nino

Ever wondered what Supreme Court justices do during the summer months, when they are not traipsing around the globe? Well, they dine with foreign dignitaries, of course!

At least that is what Justice Antonin Scalia was spotted doing Sunday night. The Court’s most senior associate justice was sipping pisco sours (yeah, we didn’t know either so we looked it up – it’s a Peruvian brandy cocktail) at Lincoln Restaurant with Peruvian ambassador Luis Valdivieso, according to the Washington Post’s gossip column the Reliable Source.  Scalia and Valdivieso snacked on a dozen oysters before their entrees.