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Saturday, September 24, 2005
Another Long Conference Update
09:53 PM | Tom Goldstein | Comments (0) | TrackBack (0)
Another alert reader raised two other noteworthy petitions. First, No. 04-1328, Ferguson v. West Virginia, presents a question regarding the scope of the confrontation right recognized in Crawford v. Washington. A post-Crawford case seems very likely to be granted in the next few months; I believe there are several vehicles available from which the Court could choose. Second, No. 04-1324, Day v. Crosby, presents essentially the same question as a case I listed (05-3, Bendolph v. United States) -- whether a district court on habeas may raise the defense of timeliness sua sponte -- but may be a better vehicle to decide the issue.
Blog Round-up - Saturday, September 24th
12:01 PM | Liz Aloi | Comments (0) | TrackBack (0)
Tax Prof Blog has this post with the briefs filed in the Solomon Amendment case. Here is an Inside Higher Ed article, with links to briefs, by Doug Lederman on the issue.
Election Law Blog this post on Judge Roberts, voting rights and Bush v. Gore.
Here is the Volokh Conspiracy on Senator Clinton's decision to vote against Judge Roberts' confirmation.
Justice Scalia discussed arts funding and censorship on Thursday at the Juilliard School. Underneath Their Robes has this commentary on the event.
Here is Professor Bainbridge on what expertise the Justice to replace O'Connor should have.
Balkinization has this post on Originalism versus the Living Constitution.
Here is Sentencing Law & Policy on criminal justice issues in Judge Roberts' written testimony.
Here is John Dean on "How the U.S. Senate Can Obtain Information From Former Federal Government Employees Who Are Now Supreme Court Nominees."
Long Conference Update
11:45 AM | Tom Goldstein | Comments (0) | TrackBack (0)
A reader helpfully alerted us to three noteworthy petitions involving a Commerce Clause challenge to Ohio's investment tax credit and property tax exemption scheme -- Nos. 04-1704, -1407, and -1724 -- collectively, the "Cuno" case.
Thursday, September 22, 2005
Kelo Debate Migrates from SCOTUSblog to Yale Law School (a Further Recommendation)
10:43 PM | Marty Lederman | Comments (2) | TrackBack (0)
Tuesday I recommended that readers interested in Kelo take a look at Professor Thomas Merrill's lucid and against-the-grain Senate testimony. Tonight, Will Baude of Crestat Sententia fame does us the great service of live-blogging what sounds like a very worthwhile post-Kelo "debate" at the Yale Law School between Professor Merrill and Professor Nicole Stelle Garnett -- both of whom participated in our own online Kelo group-blog the day the Court decided the case.
[UPDATE: The Yale Federalist Society has now linked the audio of the Garnett/Merrill panel online.]
Leading Cases on the Long Conference
05:00 PM | Tom Goldstein | Comments (1) | TrackBack (0)
Here are the "paid" petitions on the upcoming long conference (the one at the end of the summer recess) that struck me has most likely to get serious consideration. I reviewed something like 500 petitions in three hours, so if I missed one that you think is a serious candidate, don't hesitate to let me know:
No. 04-607, Lab. Corp. v. Metabolite Labs. - Is the patent in this case invalid because federal law prohibits patenting "laws of nature, natural phenomena, and abstract ideas"
No. 04-1066, Illinois v. Bartels - When does police questioning impermissibly expand stop under Fourth Amendment (Goldstein & Howe, P.C. for respondent)
No. 04-1207, Bannon v. Palm Beach County Sch. Dist. - May school require removal of religious references in mural project
No. 04-1225, Adams v. United States - Can federal employees state a Takings claim for overtime they are owed
No. 04-1333, National Solid Waste Mgmt. Ass'n v. Pine Belt Regional Solid Waste Mgmt. Auth. - When does entity have standing to raise Commerce Clause challenge
No. 04-1346, Board of Trustees of Univ. of Ill. v. Fujitsu Ltd. - When are rulings denying claim of sovereign immunity immediately appealable
No. 04-1350, KSR Int'l v. Teleflex - What is the test for "obviousness" under which an invention cannot be patented
No. 04-1366, Callery v. United States Life Ins. Co. - Does ERISA Section 502(a)(3) authorize money damages in suit for breach of fiduciary duty
No. 04-1427, Ross v. Citifinancial - May a court find that "fraudulent joinder" defeats diversity jurisdiction on ground that can be asserted by diverse and nondiverse defendants
No. 04-1462, Franklin Savings Corp. v. United States - What is the scope of the federal government's waiver of sovereign immunity in the Bankruptcy Code
No. 04-1475, Schriro v. Smith - Whether a court of appeals on habeas is limited to arguments raised by the parties
Continue reading "Leading Cases on the Long Conference" »
Today's Filing
02:22 PM | Amy Howe | Comments (0) | TrackBack (0)
The Stanford clinic filed this merits brief on behalf of John McDonald, the respondent in No. 04-593, Domino's Pizza v. McDonald. Our co-instructor, Pam Karlan, and her team of students -- James Darrow, Lauren Kofke, Eric Tuttle, and Kathryne TafollaYoung -- deserve all the credit for the clinic's contributions to the brief. Our co-counsel on the briefs are Eric Schnapper of the University of Washington, Allen Lichtenstein, and David Goldberg.
Roberts wins Committee approval
01:05 PM | Lyle Denniston | Comments (10) | TrackBack (0)
Circuit Judge John G. Roberts, Jr., won approval of the Senate Judiciary Committee early Thursday afternoon to be Chief Justice, gaining the support of three Democrats and all Republicans on that Committee. The final vote, announced at 12:55 p.m., was 13-5.
That strongly suggested that Roberts will, as expected, win an overwhelming vote of approval by the full Senate when it votes late next week. It also indicated he may get a sizeable number of Democrats' votes in the full Senate.
Perhaps the only surprise was the vote of Sen. Russell Feingold, a Wisconsin Democrat and one of the most liberal members of the Senate. He declared his support after concluding that Roberts "will not bring an ideological agenda to the Supreme Court." The record in the nomination proceeding, the senator said, is that of "a lawyer's lawyer without an ideological agenda." Feingold said that "a defining moment" for him in the proceedings was the degree to which Roberts expressed his concern about the super-secret court that grants authority for secret wiretapes to gather foreign intelligence.
Among Democrats, voting with Feingold in favor of Roberts were the Committee's top Democrat, Sen. Patrick Leahy of Vermont, and Feingold's Wisconsin colleague, Herbert Kohl. Leahy had announced his vote on the Senate floor Wednesday. In brief remarks at Thursday's Committee session, Sen. Kohl said that he was voting "my hopes and not my fears" about Roberts as a judge. Kohl said he chose "to take Judge Roberts at his word," about being a modest judge. Those words, the senator said, "will bind him throughout his career."
Lurking in the background of the strong vote for Roberts -- and mentioned by several senators -- is the likely fight that may unfold when President Bush makes his next nomination to the Court, to replace retiring Justice Sandra Day O'Connor. Democrats seemed to be suggesting that the next nominee will face a more rigorous fight than Roberts did, if that nominee is a conservative more controversial than they have found Roberts to be. Democrats who voted in favor of Roberts indicated their votes were no assurance of approval of the next nominee, especially if their questions are not answered more fully.
Even Republicans conceded the next nominee "will be judged by the standard John Roberts has set." as Sen. John Cornyn of Texas put it.
After Sen. Edward Kennedy, Massachusetts Democrat, asked Chairman Arlen Specter, Pennsylvania Republican, what the status of the next nominee was, Specter said that President Bush intends to await the final vote on Roberts before naming a nominee to succeed O'Connor, but will send up a name "very promptly thereafter."
Specter said there was no timetable for the next proceeding, saying "we will take the time we need...We will take it as it comes." But he also said there would be a thorough inquiry into any writings of the next nominee, plus a broad background investigation. He did imply that the Committee may still be working on that next process into November.
Roberts nomination is expected to go to the Senate floor on Monday, with a final vote on Thursday or Friday of next week.
Running tally on Roberts
10:33 AM | Lyle Denniston | Comments (0) | TrackBack (0)
A running tally of the votes in the Senate Judiciary Committee this morning on the nomination of Circuit Judge John G. Roberts, Jr., to be Chief Justice is being posted on the Washington Post's website, at this link.
Wednesday, September 21, 2005
Reminder: Supreme Court Preview
10:25 PM | Liz Aloi | Comments (0) | TrackBack (0)
On September 28th, the American Constitution Society is hosting a luncheon panel on: "The Upcoming Supreme Court Term: A Preview "
featuring:
Beth Brinkman, Morrison & Foerster; former Assistant to the U.S. Solicitor General
Walter Dellinger, III, O'Melveny & Meyers; former Acting U.S. Solicitor General; member, ACS Board of Advisors
James Liebman, Professor of Law, Columbia University School of Law
Theodore Olsen, Gibson, Dunn & Crutcher; former U.S. Solicitor GeneralModerated by Teresa Roseborough, Sutherland, Asbill & Brennan; Chair, ACS Board of Directors
12:00 pm
Wednesday, September 28
Paul Porter Room
Arnold & Porter
555 Twelfth Street, NW
Washington DC
Lunch will be served. There is no charge for the event and it is open to the public. RSVP to Events@ACSLaw.org by September 26 at 5 pm.
Blog Round-up - Wednesday, September 21th
09:55 PM | Liz Aloi | Comments (0) | TrackBack (0)
Judges and Jewry is tracking the Democrats' votes on Judge Roberts.
The Volokh Conspiracy has this post on whether or not Justice Ginsburg, in the past, endorsed lowering the age of consent to 12. PrawfsBlawg comments on the post here.
The Volokh Conspiracy also has this post on an upcoming Symposium on Justice Rehnquist's legacy. The Symposium, which will be on October 27th and 28th and hosted by George Washington University Law Review, will feature remarks by Justice Ruth Bader Ginsburg and panels on federalism, the role of Solicitors General, criminal justice, the media, and national security law.
On TPMCafe, Robert Gordon asks, "Should Democratic Senators Vote to Confirm Roberts?"
Legal Theory Blog has this post discussing "John Roberts in His Own Words," a publication released by the Republican Policy Committee.
Sentencing Law & Policy asks, "Will the next SCOTUS nominee have any criminal law background?"
Tuesday, September 20, 2005
The Myths of Kelo (One Blogger's Recommendation)
07:12 PM | Marty Lederman | Comments (2) | TrackBack (0)
(Cross-posted at Balkinization.)
I encourage anyone outraged by, or otherwise interested in, the Court's recent Kelo decision to take a careful look at today's testimony in the Senate Judiciary Committee by Columbia Law Professor Thomas Merrill, one of the participants in our group-blog on Kelo back in June. Merrill -- by no stretch of the imagination an unadulterated opponent of takings claims or a knee-jerk defender of local planning -- wrote an absolutely superlative amicus brief in Kelo that plainly had an impact on at least three of the Court's opinions in that case (the majority, Kennedy's concurrence, and even Thomas's dissent, which attempts to deal with Merrill's historical account).
In his testimony today, Merrill proposes some very thoughtful, and provocative, ideas about how to better protect homeowners through procedural and compensation-based statutory reform -- and he explains why it's a mistake to try to carve out particular categories of eminent domain for prohibition. Just as importantly, Merrill brings some much-needed perspective to bear on five unfortunate "myths" about Kelo that have taken hold in the public imagination, including:
Myth One: Kelo breaks new ground by authorizing the use of eminent domain solely for economic development.
Myth Two: Kelo authorizes condemnations where the only justification is a change in use of the property that will create new jobs or generate higher tax revenues.
Myth Three: Kelo dilutes the standard of review for determining whether a particular taking is for a public use.
Myth Four: The original understanding of the Takings Clause limits the use of eminent domain to cases of government ownership or public access.
Myth Five: Takings for economic development pose a particular threat to 'discrete and insular minorities.'
* * * *
Many readers no doubt will disagree with some of what Prof. Merrill has to say. But I think most will agree that this is the most formidable, and most important, defense of Kelo yet available.
[UPDATE: The Institute for Justice forwarded to us today their recently issued White Paper on Kelo, which in essence disagrees with Professor Merrill's analysis and prescriptions in just about every particular.]
Monday, September 19, 2005
G&H Summer Associate Hiring
10:25 PM | Tom Goldstein | Comments (0) | TrackBack (0)
Just a quick note that the firm is now starting to turn to law student hiring for the summer of 2006. Summer associates spend most of their time litigating Supreme Court cases. We will have 2 or 3 2L slots (more likely the former) and 2 to 4 3L pre-clerkship slots. The process is competitive, as we've had the good fortune to have exceptional summer associates and our applications for next year are similarly impressive so far. If you are interested in applying, please e-mail a resume, transcript, list of references, and writing sample to ghfirm -at- goldsteinhowe.com. There is some more information under firm hiring on the firm's web-site.
Blog Round-up - Monday, September 19th
08:40 PM | Liz Aloi | Comments (0) | TrackBack (0)
ACSBlog has made available a video of a panel from their National Convention on "The New Takings Jurisprudence" which featured former Solicitor General Seth Waxman. ACSBlog also has this post on a lecture Professor Laurence H. Tribe delivered to commemorate Constitution Day at Harvard University. The lecture is titled "Remembering the Constitution's Future: Anticipating the Roberts Legacy?"
Mark Fenster on PrawfsBlawg argues that John Roberts played a significant role in turning back, at least for the present, the takings revolution.
Sentencing Law & Policy has this post asking, "Is the Booker remedy here to stay?" and this post wrapping up coverage of the Roberts' hearings.
Underneath Their Robes has this post on this article, by Jason Schwartz for The Daily Pennsylvanian, entitled "A Grandfather's Legacy of Law, Humor and Love: Dana Rehnquist Shares Memories of Chief Justice."
The Volokh Conspiracy is reporting that the Governor of Connecticut has used the leverage of threatening to withhold state money for the New London development to force a rescission of the eviction notices given to the Kelo homeowners last week. Eugene Volokh also has this post discussing the fact that Justice Black saw the connection between Roe, Griswold and a right to privacy as early as 1965.
Justice Stevens is no southpaw.
Here is Crescat Sententia and Three Years of Hell on the latest Pledge decision.
Sunday, September 18, 2005
Interlocutory Cases at the S. Ct.
02:46 PM | Tom Goldstein | Comments (1) | TrackBack (0)
The briefs in two pending petitions for certiorari raise an interesting point of Supreme Court procedure. The Solicitor General's petition for certiorari in the tobacco RICO case (No. 05-92, United States v. Philip Morris USA) seeks review of the D.C. Circuit's limited reading of the government's ability to secure disgorgement of illegally obtained profits under RICO. [Update: the companies' response is here.] The Solicitor General's opposition to certiorari in the Hamdan military commissions case argues that the Court should not review the D.C. Circuit's expansive reading of the President's power to establish commissions.
The substantive legal questions are unrelated, but the two cases raise a common and recurring issue of Supreme Court practice: when is it appropriate to review an interlocutory decision? Neither of the D.C. Circuit decisions represents the final word in the cases; both call for further proceedings.
The Solicitor General's position in the two cases is notably inconsistent - in Philip Morris, the government argues for interlocutory review; in Hamdan, the government argues that interlocutory review is rarely appropriate. (This is not a particular criticism of the S.G., as the government inevitably finds itself having to argue at cross-purposes in different cases at the Court on various questions.) As an intuitive matter, the government's position has matters precisely backwards: in Philip Morris, interlocutory review seems premature because the tobacco companies haven't been found liable (such that the question of remedies might never arise) and no other cases are affected in the interim; in Hamdan, the question goes to the very procedures the commissions will apply and the case controls the commissions considering charges against other detainees.
The truth of the matter in any event is that the importance of the interlocutory status of a case is often grossly overstated, including in the Stern & Gressman Supreme Court Practice treatise. The fact that further proceedings remain to be conducted on remand is a factor the Court considers, but its significance varies greatly depending on whether other factors counsel in favor of review. No statute limits interlocutory review in cases in the federal courts, in contrast to state cases, with respect to which only "final" decisions may be reviewed (a requirement that the Court has read expansively to permit review when the federal issue is finally resolved). And the Justices seem not to give exceptional weight to the interlocutory status of a federal case.
The Court regularly grants cert in non-final cases that raise important issues even when the proceedings on remand could illuminate the record in relevant respects and could affect the legal issue presented. Just taking a look at the last ten cases decided last Term, the Supreme Court granted cert. despite the fact that the judgment was not final in half of them: Grokster, Bell v. Thompson (a habeas procedure case), Castle Rock (the protective order case), Mayle v. Felix (another habeas procedure case), and Exxon Mobil Corp. (a supplemental jurisdiction case).
(Disclosures: I was asked by Hamdan's counsel for my thoughts on the interlocutory question; and this post reflects my reaction. I also have clients that are watching the Philip Morris case to make investment decisions, but I have no idea whether their interests would be furthered by a particular ruling on cert.; I have just been retained to offer an opinion whether the Court will take the case and, if it does, how the Court will rule.)