It’s 2009, and the newest members of the House and Senate get to work this week as the 111^th Congress begins its session. Meanwhile, Washington is abuzz with the arrival of President-elect Barack Obama and his family into town. And the Supreme Court justices are set to meet Friday, and orders, opinions and oral arguments will follow next week. Meanwhile:

Tax cuts uncertain: President-elect Barack Obama is looking to pack nearly $300 billion in tax cuts for workers and businesses in his economic stimulus plan. But winning over congressional lawmakers, who are concerned about excess government spending, may not be an easy task. (NYT)

Help for the jobless? Meanwhile, Obama and Democratic congressional lawmakers are pushing to expand government-assisted health care insurance and unemployment compensation in the economic plan. (NYT)

Hello kettle, I am Pot: Embattled Illinois Gov. Rod Blagojevich accused Senate Majority Leader Harry Reid of conflict-of-interest issues, claiming that the lawmaker called the governor in December to discuss the Senate seat vacated by Obama. (AP)

Empty seats in the House: Illinois is not the only state with unresolved election issues as the new Congress convenes. (WaPo)

Occupational hazards? Current and former career officials at OSHA say that during the Bush administration, political appointees ordered the withdrawal of dozens of workplace health regulations, slow-rolled others, and altered the reach of its warnings and rules in response to industry pressure. (WaPo)

With 2008 almost in the history books, it’s a good time to take a look back at the most popular posts of the year here at DC Dicta. Looking back, the hottest items on the blog revolved around presidential campaign moments, Supreme Court shenanigans, celebrity testimony on the Hill, and the beleaguered Justice Department. Let’s count them down:

10. Mukasey: ‘Not every violation of the law is a crime’

Comments made by Attorney General Michael Mukasey in August – particularly the quote: “Not every wrong, or even every violation of the law, is a crime” – circulated around the blogosphere and ultimately became a catchphrase to represent the problems plaguing the Justice Department in recent years.

9. The Funniest Justice: Antonin Scalia

No one leaves ‘em laughing in the courtroom like Justice Antonin Scalia, who handily won the title of Funniest Justice for the October 2007 term.

8. Kennedy winks in EEOC’s direction?

After January oral arguments in Kentucky Retirement Systems v. EEOC, this post noted that Justice Anthony “Swing Vote” Kennedy seemed to indicate pretty clearly that he believed the retirement benefits system in question discriminated on the basis of age – just as the EEOC contended. Although he did go on to find the program discriminatory, he was in the Court’s minority, writing the dissent in a case that did not at all adhere to the Court’s usual conservative vs. liberal breakdown. (Scalia and Ginsburg joined Kennedy’s dissent – when does that every happen?)

7. Actor to lawmakers: Let patients bring pharma suits

Mr. (Dennis) Quaid went to Washington. The actor, whose newborn twin daughters were accidentally given a nearly-lethal dose of the drug herapin, told lawmakers in May that without the right to sue pharmaceutical companies, consumers will become “uninformed and uncompensated lab rats.”

6. U.S. News law school rankings leaked!

When the folks at Above The Law put up a document showing the 2009 U.S. News & World Report law school rankings a few days before they were published in March, we sent you there.

5. McCain’s switch on Souter; Obama: Thomas isn’t too bright

Ah, remember that video of then presidential candidate Barack Obama basically saying Justice Clarence Thomas wasn’t the sharpest knife in the drawer? Of course you do! Many of you watched it right here in August.

4. Biden calls Court a Supreme campaign issue

During the campaign season, now Vice President-elect Joe Biden was one of the most frequently searched subjects leading to DC Dicta. When he talked about the importance of the election in terms of potential Supreme Court nominees in August, the related post was one of the most popular blog items for weeks afterwards.

3. Cover blown off Chief Justice’s school visit

Who knew Chief Justice John G. Roberts, Jr. was so popular? Well, he obviously does – since he tried to clandestinely visit a local high school in March for a talk with students. But somehow word got out, newspaper reporters were there waiting for him, and DC Dicta readers wanted to know all about it.

2. 400 requests for reduced crack sentences in two days

When new reduced federal sentencing guidelines for crack cocaine offenses, approved last year by the U.S. Sentencing Commission, went into effect retroactively in March, one day later more than 400 court orders from around the country slashing prison terms had been processed by the Federal Bureau of Prisons.

And the most hit blog post of the year (drumroll, please!):

1. High court denies Enron investors’ petition

This Jan. 22 post noted that the Supreme Court, on the heels of its decision in Stoneridge Investment Partners v. Scientific-Atlanta Inc., denied a petition by Enron investors seeking to pursue similar claims against bankers from firms including Merrill Lynch and Credit Suisse Group. The move ended the investors’ actions claiming the bank companies colluded with Enron officials’ fraud.

With 2008 almost in the history books, it’s a good time to take a look back at the most popular posts of the year here at DC Dicta. Looking back, the hottest items on the blog revolved around presidential campaign moments, Supreme Court shenanigans, celebrity testimony on the Hill, and the beleaguered Justice Department. Let’s count them down:

10. Mukasey: ‘Not every violation of the law is a crime’

Comments made by Attorney General Michael Mukasey in August – particularly the quote: “Not every wrong, or even every violation of the law, is a crime” – circulated around the blogosphere and ultimately became a catchphrase to represent the problems plaguing the Justice Department in recent years.

9. The Funniest Justice: Antonin Scalia

No one leaves ‘em laughing in the courtroom like Justice Antonin Scalia, who handily won the title of Funniest Justice for the October 2007 term.

8. Kennedy winks in EEOC’s direction?

After January oral arguments in Kentucky Retirement Systems v. EEOC, this post noted that Justice Anthony “Swing Vote” Kennedy seemed to indicate pretty clearly that he believed the retirement benefits system in question discriminated on the basis of age – just as the EEOC contended. Although he did go on to find the program discriminatory, he was in the Court’s minority, writing the dissent in a case that did not at all adhere to the Court’s usual conservative vs. liberal breakdown. (Scalia and Ginsburg joined Kennedy’s dissent – when does that every happen?)

7. Actor to lawmakers: Let patients bring pharma suits

Mr. (Dennis) Quaid went to Washington. The actor, whose newborn twin daughters were accidentally given a nearly-lethal dose of the drug herapin, told lawmakers in May that without the right to sue pharmaceutical companies, consumers will become “uninformed and uncompensated lab rats.”

6. U.S. News law school rankings leaked!

When the folks at Above The Law put up a document showing the 2009 U.S. News & World Report law school rankings a few days before they were published in March, we sent you there.

5. McCain’s switch on Souter; Obama: Thomas isn’t too bright

Ah, remember that video of then presidential candidate Barack Obama basically saying Justice Clarence Thomas wasn’t the sharpest knife in the drawer? Of course you do! Many of you watched it right here in August.

4. Biden calls Court a Supreme campaign issue

During the campaign season, now Vice President-elect Joe Biden was one of the most frequently searched subjects leading to DC Dicta. When he talked about the importance of the election in terms of potential Supreme Court nominees in August, the related post was one of the most popular blog items for weeks afterwards.

3. Cover blown off Chief Justice’s school visit

Who knew Chief Justice John G. Roberts, Jr. was so popular? Well, he obviously does – since he tried to clandestinely visit a local high school in March for a talk with students. But somehow word got out, newspaper reporters were there waiting for him, and DC Dicta readers wanted to know all about it.

2. 400 requests for reduced crack sentences in two days

When new reduced federal sentencing guidelines for crack cocaine offenses, approved last year by the U.S. Sentencing Commission, went into effect retroactively in March, one day later more than 400 court orders from around the country slashing prison terms had been processed by the Federal Bureau of Prisons.

And the most hit blog post of the year (drumroll, please!):

1. High court denies Enron investors’ petition

This Jan. 22 post noted that the Supreme Court, on the heels of its decision in Stoneridge Investment Partners v. Scientific-Atlanta Inc., denied a petition by Enron investors seeking to pursue similar claims against bankers from firms including Merrill Lynch and Credit Suisse Group. The move ended the investors’ actions claiming the bank companies colluded with Enron officials’ fraud.

It was President George H. W. Bush who signed the Americans with Disabilities Act into law in 1990. Yesterday, he watched his son, President George W. Bush, expand that law’s coverage by signing the ADA Amendments Act.

The new law will broaden the number of people who are considered disabled under the ADA. 

The Act overturns the 1999 “Sutton Trilogy” of Supreme Court cases, which said that the determination of whether an individual has a “substantial impairment” must be made while taking into account the use of any medications, corrective lenses, hearing aids or other corrective measures.

The new law also overturns the 2002 case of Toyota v. Williams, 534 U.S. 184, in which the Court construed the term “substantially limits” to mean “considerable” or “to a large degree,” thereby precluding impairments that interfere in only a minor way with performing tasks from being covered by the ADA.

Last week the American Constitution Society of Law and Policy released a study showing the low rates of success for employment discrimination plaintiffs in federal trial and appellate courts.

The numbers were particularly striking at the appellate level. Job bias plaintiffs who won at the trial level had their verdicts reversed on appeal 41 percent of the time. Meanwhile, plaintiffs appealing verdicts in favor of the employer won reversals less than 9 percent of the time.  More here from Lawyers USA.

Because of the low success rates, fewer workers are turning to the federal courts for redress, particularly on the federal level, the study’s author said.

For example in the 11^th Circuit Court of Appeals, the number of employment discrimination appeals dropped 35 percent from 1998 to 2005 – the biggest decrease of any circuit.

The percentage drop in some other courts was also noticeably sharp:

1^st Circuit: -30 percent

8^th Circuit: -28 percent

5^th Circuit: -25 percent

4^th Circuit: -23 percent

10^th Circuit -22 percent

9^th Circuit: -20 percent

6^th Circuit: -19 percent

7^th Circuit: -18 percent

2^nd Circuit: -17 percent

D.C. Circuit: No change

3^rd Circuit: +10 percent

1^st Circuit: +30 percent

Source: Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse? -  Harvard Law and Policy Review

Legislation aimed at restarting the statute of limitations for equal pay claims with the issuance of each paycheck – legislation Justice Ruth Bader Ginsburg called for from the bench last year in her dissent in Ledbetter v. Goodyear Tire and Rubber - was blocked by Senate Republicans yesterday.

Despite a hard push by Health, Education, Labor and Pension Committee Chairman Sen. Edward Kennedy to get the once-stalled bill to the Senate floor and to get it passed, Republicans filibustered the measure, and lawmakers fell four votes short of the 60 voters needed to break the filibuster.

GOP lawmakers complained that the legislation, called the “Ledbetter Fair Pay Act,” would lead to flood of litigation. But some were also angry that the vote was delayed in order to allow presidential candidates and Sens. Hillary Clinton and Barack Obama to return to Washington from the campaign trail.

“Here we are, shut down on a Wednesday afternoon, no action in the Senate, in order to accommodate the Democratic candidates for president’s schedule,” Minority Leader Mitch McConnell of Kentucky said Wednesday, according to CNN.

Subscribers can find more background on the bill here from Lawyers USA.

A move to expand employment discrimination protections to gay workers is facing opposition – from a gay civil rights group.

The House and Senate are considering bills that would protect gays, lesbians and bisexuals from employment bias. The House version, which passed in November, is sponsored by openly gay Rep. Barney Frank of Massachusetts. Sen. Edward Kennedy, also from Massachusetts, is pushing the Senate to pass its version as well.

But members of the National Gay and Lesbian Task Force oppose the bills because they do not include transgendered individuals in the protected category.

“Leaving transgender people out makes that a flawed movement,” member Roberta Sklar told The Associated Press. The group “strongly opposes” the bill, she said.

Kennedy said that it may take baby steps to cover everyone, but including transgendered workers in the current versions of the bill would jeopardize it for everyone. He said next year – particularly if a Democrat is in the White House – Congress can work to expand the law’s protections.

“The fact is that the House of Representatives has taken action,” Kennedy told The Associated Press. “The best opportunity for progress is … to follow along on the action of the House of Representatives, and then look down the road to a new day after we have a good Democratic Congress and a Democratic president.”

Frank, who was also criticized for not including transgendered individuals in his bill, also said he hopes to expand upon the law later.

The justices of the Supreme Court head back to work today, where they are scheduled to conference for the first time this month. They could grant some petitions for certiorari or issue other orders today, and this blog will be updated with news on that front.

Next week, after the President’s Day holiday Monday, oral arguments resume, and two cases on the court’s docket involve employment retaliation claims. (As always, links go to the case summaries by the Oyez Project).

Tuesday, the Court will consider whether a federal employee, who has complained of age discrimination and was later fired, can bring a retaliation claim against her employer under the Age Discrimination in Employment Act in Gomez-Perez v. Potter, No. 06-1321. In Wednesday’s oral argument in CBOCS West, Inc. v. Humphries, No. 06-1431, the justices will consider whether an employee, fired after complaining that his supervisor used racial slurs, can bring a retaliation claim under 42 U.S.C. §1981 (the Civil Rights Act of 1866).

Tuesday, The Court will also consider whether the government can allow utility companies to renegotiate long-term contracts with wholesale energy suppliers in Morgan Stanley Capital Group v. Public Utility District No. 1, No. 06-1457, consolidated with Calpine Energy Services v. Public Utility District No. 1, No. 06-1462.

Meanwhile,

Lawmakers in the House don’t like the wiretap bill. (WaPo)

Lawmakers in the Senate don’t like waterboarding. (NYT).

Unhappy with the FDA’s performance, Michigan Democrat Rep. Bart Stupak called for agency Commissioner Andrew von Eschenbach’s resignation. (AP)

One lawmaker is pushing to give banks immunity from patent infringement lawsuits. (WaPo).

Rep. Tom Lantos is remembered. (SF Chronicle)

The ABA Journal reports that new issues may soon arise for employers and their attorneys as a result of revisions to the Family Medical Leave Act.

Under a new law signed last week by President George W. Bush, employees who have family members who fall ill, become injured, or suffer some other “exigency” during active duty in the military can get up to 12 weeks of FMLA leave to care for them.

Even though the new rules are not technically in effect yet – the Department of Labor has to formally adopt regulations reflecting them first – the Labor Department nonetheless is urging employers to follow the spirit of the new law, prompting some law firms to issue guidance to their clients as to what constitutes a qualifying “exigency.”

A newsletter from law firm Paul, Hastings, Janofsky & Walker advises employers to “interpret the term broadly” while attorneys at Littler Mendelson cautioned clients that “[e]mployers should be aware that time off under this new legislation may be in addition to family leave available under state law.”

Today the House committee on Education and Labor is holding a hearing on the “ADA Restoration Act of 2007,” which would bring the biggest changes to the Americans with Disabilities Act since the law was passed in 1990.

Groups including the National Council on Disability have urged congress to pass the measure, introduced in July, which aims to establish clearer standards for what constitutes a disability and what accommodations employers must make for qualified applicants. (Lawyers USA subscribers can read more here. Also more here from HR.BLR.com).

But some business groups have opposed the measure, saying that the bill would essentially eliminate that requirement that a disability affect “a major life function,” expanding the definition so broadly as to include minor or temporary impairments. The Heritage Foundation, for example, said the law would expand the definition of disability to the point that it would cover “virtually every American.”

UPDATE: The U.S. Chamber of Commerce also opposes the measure, and posted about today’s hearing here on its blog, ChamberPost.

Among those scheduled to testify at today’s hearing are: University of District of Columbia law professor Robert Burgdorf; David Fram from the National Employment Law Institute; Andrew Imparato, president and CEO of the American Association of People with Disabilities; and Carey McClure, an electrician who suffers from muscular dystrophy who said her job offer was revoked by General Motors because of her disability.