Continuing our look back at October Term 2007 (a review that began here with a look at criminal cases), we turn to the Court’s business docket. After a spectacularly successful term for corporate parties in 2006, the Court’s treatment of business cases received considerable attention this year. In a New York Times Magazine cover story, George Washington University Law Professor Jeffrey Rosen dubbed the Justices “Supreme Court, Inc.” This year, by contrast, the outlook for business was decidedly more mixed. While the Court sharply limited the maritime punitive damages award in Exxon v. Baker and rejected shareholders’ theory of “scheme liability” in Stoneridge v. Scientific-Atlanta, it delivered a host of worker-friendly rulings in the employment context. This post will look at decisions affecting business this term and last.

As mentioned above, OT 2006 was a banner year for business interests before the Court. Over 40% of the Court’s signed opinions — 28 of 68 cases — involved businesses or business interests; of those, 17 (60%) were decided in support of business interests, with only seven setbacks (the remaining four decisions neither helped nor hindered business interests). On issues ranging from employment discrimination to anti-competitive practices, from punitive damages to campaign finance, business won an almost unbroken string of victories. For example, the U.S. Chamber of Commerce’s litigation arm filed 16 briefs in 2006; of 14 signed opinions (one case was withdrawn, and another — Ford Motor Co. v. Buell-Wilson — was GVR’d in light of Phillip Morris v. Williams) the Chamber’s side won 12.

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 UPDATE 4:23 p.m.  District Judge James Robertson, moving this new case along swiftly, has told the Justice Department to file its opposition on Monday, July 14, and detainee’s counsel to file their reply on Wednesday, July 16.  The judge set oral argument on the motion for Thursday, July 17.

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Lawyers for Salim Ahmed Hamdan — the Yemeni national detained at Guantanamo Bay whose case led to the scuttling of President Bush’s first attempt to set up military trials for terrorism suspects — moved on Thursday to stop the replacement system enacted by Congress.  In legal filings in U.S. District Court, Hamdan’s counsel sought a court order blocking the scheduled military commission trial of Hamdan, now due to begin on July 21.

“Like Hamdan’s previous challenge,” the new filing noted, “he contests the entire legality of the system to try him.”  The right not to be tried cannot be vindicted once a trial has occurred, it added.

The motion for a preliminary injunction asked that the trial be blocked until the District Court rules on his habeas challenge “to the legality and jurisdiction of the military commission.”  The new challenge was filed with District Judge James Robertson, who four years ago had struck down the initial military commission system (a decision ultimately sustained by the Supreme Court in 2006).  The motion can be downloaded here.  A 47-page legal memorandum supporting the motion can be found here.

The motion asked that Judge Robertson rule on the motion by July 21, and suggested a briefing schedule that would have the government opposition filed next Thursday, and a reply by Hamdan’s counsel by July 15.  Counsel agreed to avoid seeking a hearing or oral argument on the plea, if that would speed it up. If the government opts to delay the trial, the case can proceed on a “slower timetable,” the motion suggested.  (The military judge presiding over Hamdan’s case on June 26 refused a request for delay of the July 21 opening of the trial.)

The Justice Department has already signaled that it will oppose Hamdan’s effort to delay his trial. In a letter June 30 to District Court judges in Washington, the Department said habeas cases by those facing war crimes trials — Hamdan and others — should be delayed until after those trials are over, with a verdict.  Moreover, the government has indicated earlier that it may claim that the constitutional right to file a habeas challenge to detention does not include a right to challenge a war crimes trial.

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The Justice Department has notified the Supreme Court that a legal development on the death penalty in federal law was left out of the Court’s consideration of Kennedy v. Louisiana (07-343). In that decision, on June 25, the Court ruled 5-4 that it is unconstitutional to impose the death penalty for the crime of raping a child.

That opinion basically had two parts. In the first, the Court made a survey of trends in state legislatures, in Congress, and in the courts, leading the Court to conclude that there is a national consensus of opinion against capital punishment for child rape. In the second part, the Court, exercising its own “independent judgment,” concluded that that punishment would not be proportional for that crime.

It appears that the Justice Department message to the Court had to do only with the first part of that calculation — the survey of laws and official actions.  Even though the United States government was not a party in the case, and did not join in as an amicus, the Department accepted responsibility for the omission of a citation to a 2006 act of Congress that provided a death sentence for rape of a child, when the prosecution occurred in the military criminal justice system.

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NOTE TO READERS: Events have been unfolding rapidly in the lower courts on Guantanamo Bay detainee cases following the Supreme Court’s June 12 decision on the prisoners’ legal rights.  Earlier in the day, this blog posted this report on developments up to that point. Following is an update on significant later activity.

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A federal judge in Washington, refusing to give up even temporarily the handling of 18 cases by Guantanamo Bay detainees seeking to challenge their captivity, moved forward with those on Wednesday, calling in lawyers for an update on the cases’ status on July 10.  Among the 18 cases is the lead case that led to the Supreme Court’s decision allowing habeas pleas by the captives – Boumediene v. Bush (District Court docket 04-1166, Supreme Court docket 06-1195).

On a day when several of his colleagues on the District Court bench transferred habeas cases to a senior judge for coordination on common issues, District Judge Richard J. Leon declined to do so “at this time.”  He then ordered counsel in all of those cases “to discuss common procedural and substantive issues” at 2:30 p.m. a week from Thursday.

It is unclear whether the judge’s action would mean those 18 cases would move ahead more rapidly than the other 250-plus cases now pending or soon to be filed in District Court.  If the Justice Department and Pentagon chose, they could file documents seeking to justify continued detention of those prisoners first in the cases before Judge Leon, in hopes of getting an early precedent perhaps favorable to their view of detainees’ rights.

Judge Leon was one of two District Court judges whose rulings on earlier habeas challenges by detainees formed the basis for the cases that ultimately went to the Supreme Court in Boumediene v. Bush.  The other case that went up, Al Odah v. Bush (docket 06-1196), had been handled by District Judge Joyce Hens Green.  Judge Leon ruled that the detainees could get no relief in habeas, Judge Green found the captives had at least a due process claim against their continued confinement.  The D.C. Circuit Court agreed with Leon’s ruling, but the Supreme Court reversed the Circuit Court last month.  While the Supreme Court made clear that the prisoners have a constitutional right to challenge their detention in habeas petitions, it did not spell out the other rights they could claim. Those will have to be explored by the District Court judges initially.

Judge Leon gave no reason for declining to transfer cases for coordination under a resolution judges on the District Court had approved on Tuesday.  At least half of his 14 colleagues transferred cases on Wednesday for coordination.

The judge assigned the coordination task for other cases — Senior U.S. District Judge Thomas F. Hogan — issued an order Wednesday afternoon setting a conference on “procedural and scheduling matters” in 121 cases for next Tuesday, July 8, at 2 p.m.  The order can be found here.  As those cases, and others transferred by other judges, proceed on coordination issues, they will do so under a common docket number (08-442, In re: Guantanamo Bay Detainee Litigation).  Among tasks assigned to lawyers before that conference is a listing of detainees who still have cases in District Court, and suggesting a date for a status report on each case.

Meanwhile, in a somewhat unusual gesture, the District Court’s Chief Judge, Royce C. Lamberth, wrote to the D.C. Circuit Court on Wednesday, asking it to resolve promptly a number of pending cases that Justice Department lawyers had told him raised issues that bear upon the habeas cases in District Court.  Attached to Judge Lamberth’s letter was a seven-page letter from Acting Assistant Attorney General Gregory G. Katsas, extensively discussing how the Justice Department suggests the habeas cases proceed.  The Katsas letter makes a number of proposals that appear to be highly controversial, suggesting that the courts could have major difficulty resolving many of the issues they now face.  The text of the Katsas letter can be downloaded here.

Judge Lamberth told Chief Judge David B. Sentelle of the Circuit Court that his colleagues on the District bench agreed with Katsas’ proposal for “prompt resolution” of the issues mentioned, adding “and we hope that you will bring to the attention of the judges of your Court our request for expedition in these and all Guantanamo cases.  Our Court is committed to deciding these cases as expeditiously as possible, and any assistance or guidance your Court can give us will be greatly appreciated.”

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The Supreme Court refused on Wednesday to delay a federal judge’s review of a plea bargain settling federal criminal charges growing out of an explosion at a Texas oil refinery in March 2005.  Lawyers for 12 victims of that explosion, who contend that the plea bargain is too lenient and that it was reached without input from victims, had asked the Court for a stay of a Fifth Circuit Court ruling that the victims plan to appeal to the Justices.

The Court’s order denying the stay in Dean, et al., v. U.S. District Court, et al. (application 08A3) can be found here.  A post on this blog on Monday describing the plea can be read here.

The application was filed with Justice Antonin Scalia as Circuit Justice, and he referred it to the full Court, which denied it without noting any dissent.  Justice Stephen G. Breyer took no part in the order.

UPDATE:  In the notices below, we have added links to video recaps of Supreme Court review panels that have already occurred.

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Over the coming weeks, legal organizations around Washington will host a series of panels reviewing the soon to be completed Supreme Court term. For those interested in attending, a schedule of events appears below.

Host: Brookings Institution
Date: June 27, 10 to 11:30 a.m.
Location: Brookings Institution
Video: click here
Panelists:

• Benjamin Wittes, Brookings fellow and research director (moderator)
• Stuart Taylor, National Journal columnist and nonresident senior fellow
• Miguel A. Estrada, Gibson Dunn & Crutcher LLP
• Randolph D. Moss, WilmerHale

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Host: American Constitution Society
Date: July 1, 9:00 to 10:30 a.m.
Location: National Press Club
Video: click here
Panelists:

• Kathleen M. Sullivan, former Dean of Stanford Law School (moderator)
• Randy E. Barnett, Georgetown Law professor
• Alan B. Morrison, former District of Columbia Special Counsel
• John Payton, president of the NAACP Legal Defense Fund
• Deborah Pearlstein, visiting scholar at Princeton University
• Andrew J. Pincus, Mayer Brown LLP, co-director of the Yale Law School Supreme Court Clinic
• Tom Goldstein, Akin Gump and SCOTUSblog

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Host: Federalist Society
Date: July 1, 12:00 to 2:30 p.m.
Location: National Press Club
Video: click here
Panelists:

• Jan Crawford Greenburg, ABC Legal Correspondent (moderator)
• Rachel Brand, WilmerHale
• Ted Cruz, former Texas Solicitor General
• Orin Kerr, George Washington law professor
• Nelson Lund, George Mason Law professor
• Charles Rothfeld, Mayer Brown LLP, co-director of the Yale Law School Supreme Court Clinic
• Tom Goldstein, Akin Gump and SCOTUSblog

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Host: The Heritage Foundation
Date: July 8, 10 a.m. to 12 noon
Location: The Heritage Foundation
More Information: click here
Panel I:

• Todd Gaziano, The Heritage Foundation (moderator)
• Ted Cruz, former Texas Solicitor General
• Seth Waxman, former U.S. Solicitor General
• Ronald Rotunda, George Mason law professor

Panel II:

• James Swanson, The Heritage Foundation
• Dahlia Lithwick, Slate
• David Savage, Los Angeles Times
• Stuart Taylor, Jr., National Journal

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Host: Legal Times / Thomson West
Date: July 9, 3:00 to 5:00 p.m.
Location: Georgetown University Law Center
More information: click here
Panelists:

• Tony Mauro, Legal Times (moderator)
• Ted Cruz, former Texas Solicitor General
• Walter Dellinger, former Acting Solicitor General
• Pattie Millett, Akin Gump and SCOTUSblog
• Malcom Stewart, Assistant to the U.S. Solicitor General

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UPDATE Wednesday 10:30 a.m.

The District judges’ resolution adopted Tuesday on processing more than 250 current or soon-to-be-filed Guantanamo habeas cases can be downloaded here.  A sample order for transferring a case to the coordinating judge is here.  A press release issued Wednesday, describing the judges’ action and noting the expected challenge to the war crimes military commission system, can be read here.  The assignment to Senior Judge Thomas F. Hogan is mainly to sort out common procedural issues, although he may also identify and rule on substantive legal issues, the judges said.  Judge Hogan’s first hearing is next Tuesday at 2 p.m.

Federal District judges in Washington, D.C., who will handle scores of pending and likely future challenges by Guantanamo Bay detainees to their confinement, decided on Monday to shift them temporarily to one judge to work on ways to process the cases. Attorneys for detainees began receiving notices Tuesday that the judges, in a closed-door session earlier in the day, had agreed that Senior District Judge Thomas F. Hogan would handle “coordination and management” issues. The underlying cases will remain with the individual judges for future action on the merits. A typical order transferring a case to Judge Hogan can be read here.

The judges acted after holding two meetings with lawyers for the detainees and for the Justice Department, to explore what could be done to make the processing of the habeas challenges more efficient.

Meanwhile, an attorney for a detainee facing a war crimes trial at Guantanamo said he will file a challenge to try to stop those proceedings before a Pentagon military commission at the base on the island of Cuba.  Georgetown law professor Neal Katyal said he would begin that challenge promptly.

Developments on detainee cases have been speeding up in the two and a half weeks since the Supreme Court, on June 12, ruled that the detainees have a constitutional right to file habeas petitions to contest the military’s detention and continued confinement of them.

That ruling applied directly to individuals not yet facing any war crimes or other criminal charges, but Professor Katyal’s client — Yemeni national Salim Ahmed Hamdan — will be seeking to apply that ruling to his own case.  As of now, his trial at Guantanamo is scheduled to begin July 21.  The D.C. Circuit Court refused on May 15 to order a delay of the trial, but that was before the Supreme Court ruled on detainees’ rights. The Circuit Court said its action was “without prejudice” to renewing the plea for delay, once the Supreme Court had ruled.

The District judges are now free to move ahead with all of the other habeas cases, since the Circuit Court has issued orders sending back to the judges the collection of cases that led to the Supreme Court’s ruling last month. In orders dated June 25, the D.C. Circuit Court, without waiting for lawyers to ask for it, sent the cases titled Boumediene v. Bush and Al Odah v. U.S., along with some two dozen similar cases, back to District Court judges to follow up on the Supreme Court’s decision.

The Justices’ ruling is now known generally simply by the Boumediene case’s name.  In its two orders, the Circuit Court issued immediately its mandate returning the cases to District Court “for further proceedings consistent with the Supreme Court’s opinion in Boumediene v. Bush.”

Since the detainees in those cases have not been charged with any crimes, their reopened habeas challenges will be aimed at the initial military decisions to hold them prisoners — decisions made by the Pentagon’s three-member Combatant Status Review Tribunals.

Meanwhile, the Circuit Court, in an order issued June 26, sent back to District Court the habeas challenge by lawyers for war crimes defendant Hamdan.  Further proceedings in that case may reveal how the Boumediene decision by the Justices is going to impact on the war crimes trials of Hamdan and others.

On Friday, the National Rifle Association filed five lawsuits, seeking to apply the Constitution’s Second Amendment to block gun control laws adopted by local governments in California and Illinois.  This blog provided a link to the California complaint as part of a post that can be found here.

The NRA has provided links to the other four lawsuits.  All four were filed in the U.S. District Court Northern District of Illinois (Eastern Division).  Each of the cases makes the argument that the Second Amendment is applicable to the state and local governments through the Fourteenth Amendment — an issue the Supreme Court has not considered since 1894, when it said the Amendment applied only to the federal government. That is an issue the Court specifically declined to consider in its June 26 ruling in District of Columbia v. Heller (07-290), finding an individual right to have a gun for self-defense in one’s home.

The Chicago case, NRA, et al., v. City of Chicago, et al. (docket 08-3697) is here.  It challenges a city code provision that requires registration of firearms, but bars registering handguns.

The Evanston, Ill., case, NRA, et al., v. City of Evanston, et al. (docket 08-3693) is here.  That city bans handgun possession, except for licensed gun collectors, and movie theaters and film production companies (presumably, for use in performances).

The Oak Park, Ill., case, NRA, et al., v. Village of Oak Park, et al. (docket 08-3696) is here.  The Village bans handgun possession and bars carrying other guns, such as a rifle or shotgun, outside the home or business or beyond one’s own land, but there is an excpetion for licensed hunters or fishermen going to or from game areas.  There is a general exc eption for licensed gun collectors.  Like Evanston, Oak Park allows guns to be used in theater performances, using blank ammunition.

The Morton Grove, Ill., case, NRA, et al., v. Village of Morton Grove, et al. (docket 08-3694), is here. That community bans handgun possession, except for licensed gun collectors and licensed gun clubs on their own premises.

The Chicago and Morton Grove cases have been assigned to District Judge Harry D. Leinenweber, the Evanston case to District Judge Marvin E. Aspen, and the Oak Park case is District Judge Joan H. Lefkow.

The lawsuit against Morton Grove is, in essence, a historical echo: that community is generally considered to be one of the first in the nation to have adopted a flat ban on handgun ownership, and its ban was challenged up to the Supreme Court.  Morton Grove adopted its ban in 1981, five years after the District of Columbia adopted the handgun ban that the Supreme Court has just struck down.

The Seventh Circuit Court, in a December 1982 ruling in the Morton Grove case, found that the Second Amendment applied only to the federal government — relying upon the Supreme Court’s 1894 decision in Presser v. Illinois.  The Circuit Court rejected arguments in that case that Presser was no longer good law because the Supreme Court later incorporated much of the Bill of Rights into the Fourteenth Amendment so that specified rights did apply to state and local government, that the Presser decision was flawed, and that all of the Bill of Rights had been incorporated into the Fourteenth Amendment.

The Supreme Court denied review of the challengers’ appeal on Oct. 3, 1983, leaving the village’s ordinance intact.  That is the same ordinance now under new challenge by the NRA, which had a role in the earlier litigation.

The Supreme Court on Tuesday released a revised calendar of oral arguments scheduled for the opening session that begins Monday, Oct. 6.  The new version can be downloaded here.

As the U.S. Solicitor General’s office had asked, the Court placed the case of Winter v. Natural Resources Defense Couneil (07-1239) on the October calendar.  This is a case that tests the Navy’s use of sonar transmissions during training exercises, when that may interfere with marine mammals.  The case was granted on June 23 and, under normal scheduling, would not have been heard before December or January.

The Court scheduled the case for 10 a.m. on Wednesday, Oct. 8, in place of the previously scheduled Negusie v. Mukasey (07-499).  That case tests the availability of asylum in the U.S. for an individual who served as a prison guard in another country.  (The Negusie case will be heard later in the Term.)

The only other change is that the Court reversed the order of the two other cases scheduled for argument that day.

Short summaries of the issues to be argued in the October session cases can be found in this post, describing the schedule before Tuesday’s revision.

Last Wednesday, in No. 07-411, the Supreme Court held that an Indian tribal court lacks jurisdiction to hear discrimination charges brought by tribal members against a non-Indian bank concerning the bank’s sale of its fee land to another non-Indian.

The case arises out of a lending relationship between petitioner, Plains Commerce Bank, and respondents, The Long Company and its owners, Lila and Ronnie Long. The Longs are both enrolled members of the Cheyenne River Sioux Indian Tribe; petitioner is an unaffiliated South Dakota corporation. In 1996, as part of a renegotiation of the Long Company’s loans with the Bank, mortgaged land owned by Ronnie Long’s deceased father was deeded to the Bank in lieu of foreclosure. The Longs and the Bank also agreed to a two-year lease on the same land, with an option for the Longs to buy at the end of the term.

The Longs were unable to exercise their option to purchase the leased land, but they refused to vacate the property. Nevertheless, the Bank sold portions of the land (including land the Long Company and its owners were still occupying) it owned in fee simple to various non-Indians on terms more favorable than it had offered to the Longs.

The Longs sued in tribal court, alleging discrimination, breach-of-contract and bad-faith claims. Over the Bank’s objection that the tribal court lacked jurisdiction, the court allowed the case to go to trial, where a jury ruled in the Longs’ favor on three of their four claims – including the discrimination claim – and awarded them $750,000. In a supplemental judgment, the court also awarded the Longs the option to purchase the land they still occupied.

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Rachel Lee is a summer associate at Stoel Rives, which represents a petitioner in 06-1454, a related petition that was GVR’d after the Morgan Stanley decision. She is a rising 3L at Stanford Law School.

On Thursday, the Supreme Court disappointed public utilities seeking to reduce the electricity rates of long-term contracts they entered into during the California energy crisis. The Court embraced the importance of enforceable long-term contracts and concluded that Congress “intended to reserve the Commission’s contract-abrogation power for those extraordinary circumstances where the public will be severely harmed.” Nevertheless, the Court did not entirely close the door on the claims. Rather, it directed FERC to determine on remand whether the contracts imposed an excessive burden on consumers “down the line,” and whether the energy sellers had “engaged in such extensive unlawful market manipulation as to alter the playing field for contract negotiation.”

Justice Scalia, writing for a four-member majority, vacated the Ninth Circuit’s decisions in Morgan-Stanley and its companion case, American Electric Power Service Corp. v. Public Utility District No. 1 of Snohomish County. The Court agreed with the energy sellers and held that the Ninth Circuit had misinterpreted the Mobile-Sierra doctrine in two ways when reviewing FERC’s decisions. First, the Mobile-Sierra presumption that a negotiated rate is “just and reasonable” applies to all contract rates, even if FERC passively allowed a rate to go into effect without an initial review of its reasonableness. Second, the Mobile-Sierra standard applies symmetrically, both to rates challenged as too low and those challenged as too high. The presumption of validity does not depend on whether the rate is above or below the marginal cost for the electricity—otherwise it would be a return to the cost-based regulation that contract-based rates are intended to avoid. Thus, under Mobile-Sierra, a contract rate can be modified by FERC “only if it harms the public interest” by, for example, impairing the continued financial viability of a public utility, laying an excessive burden on consumers, or being unduly discriminatory. In endorsing Mobile-Sierra, the Court stressed that “contract stability ultimately benefits consumers, even if short-term rates for a subset of the public might be high by historical standards.”

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NOTE: The legal controversies arising out of the war-on-terrorism often lead to important tests of major Supreme Court precedents. The decision discussed here examines the scope of the Court’s 1971 decision in Bivens v. Six Unknown Federal Narcotics Agents, allowing money damage claims against federal officials for violating individuals’ constitutional rights.

A federal appeals court, in a major victory for federal officials in pursuing individuals suspected of terrorism, ruled on Monday that foreign nationals may not sue U.S. government officers for money damages for capturing them and sending them to foreign countries where they were tortured.

The decision by the Second Circuit Court in New York City, in a high-profile case seen as a significant legal test of the U.S. program of “special rendition,” also barred a claim specific to this case that U.S. officials seriously mistreated the detained individual while he remained in this country before being sent abroad involuntarily.

In both aspects of its rulings, the Circuit Court found it unnecessary to rule on the federal government’s claim that the case could not go forward in court because it would intrude on the “state secrets privilege” against disclosing classsified information. 

Still, one of the key reasons the Court blocked a damages remedy was its concern that “adjudication of the claim at issue would necessarily intrude on the implementation of national security policies and interfere with our country’s relations with foreign powers.”  In this case, it said, a court would have to probe the actions not only of the U.S. government, but of the governments of Canada, Jordan and Syria.

The decision, dividing the Circuit Court 2 to 1, came in the case of Arar v. Ashcroft, et al. (Circuit docket 06-4216).  The opinion, along with the dissent, can be downloaded here. (The complete file is 104 pages.)

The damages lawsuit was filed by Maher Arar, a citizen both of Canada and of Syria and a resident of Ottawa, was traveling through the U.S. en route to Montreal on Sept. 26, 2002, when he was taken into custody at JFK Airport in the Queens borough of New York City. He was detained, apparently, on tips from Canadian officials that Arar had ties to the Al Qaeda terrorist network — a claim he has repeatedly denied.

After being interrogated by FBI agents, in harsh conditions, he contends, he was sent involuntarily to Syria — where he was born — over his objection that he would be tortured. He was flown to Amman, Jordan, and then taken to Syria, where he asserted he was held for ten months with repeated beatings and other forms of torture, until released to Canadian officials in December 2003. He later said that Syria interrogators were mainly interested in his associations with a man he regarded as a casual acquaintance.

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In the first attempt to get the Supreme Court to clarify the rights of crime victims under a 2004 federal law, lawyers for 12 victims of an explosion three years ago at an oil refinery in Texas have asked the Supreme Court to delay a federal judge’s action on a plea agreement that would settle federal criminal charges against a large oil company. The victims contend that the plea deal is too lenient, and that it was worked out without any input from the victims — a claimed violation of the Crime Victims’ Rights Act.

At this stage, the victims are asking the Court to block a Fifth Circuit Court ruling that limits their right to challenge denials of rights under that Act; their lawyers are preparing an appeal to the Supreme Court on that point, and want a delay until that is decided.   The application for a stay (Dean, et al., v. U.S. District Court, 08A3) can be downloaded here.  BP Products North America Inc. filed an opposition to the stay request, arguing that the 2004 law does not allow for stays.

If a stay is not issued, the victims’ lawyers argued, the plea deal could be ratified by a federal judge, forever scuttling their rights to have taken part in discussions of what such a bargain should include, before it takes effect.

Under BP Products’ plea agreement, it would pay a $50 million fine and plead guilty to violations of the Clean Air Act for failing to maintain equipment at the refinery and failing to warn those working near the site of potential fire, explosion or other hazards.

Aside from the criminal case, some 4,000 civil damage claims have been filed in federal and state courts; about half of those have been settled for more than $1.6 billion.

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While the Supreme Court’s opinions this Term produced sweeping rulings on the death penalty and on the rights of enemy combatants, the criminal law docket in OT07 was all about the details. Of the 24 cases on criminal law, 12 involved sentencing guidelines or felony definitions, and seven cases dealt with strictly procedural issues. (Here is a visual breakdown of the cases.)

Just over half of the decisions went in favor of criminal rights. Big wins for the accused included the ability of federal judges to depart from the federal sentencing guidelines in crack cocaine cases (Kimbrough and Gall), and of state courts to retroactively apply Supreme Court decisions to criminals seeking post-conviction relief even where federal judges cannot (Danforth).The Court gave wins to both prosecutors and defense attorneys.

While the Court ruled Kentucky’s protocol for lethal injections constitutionally sound (Baze), it barred states from applying the death penalty to convicted child rapists (Kennedy).The Armed Career Criminal Act played a central role in several cases and the Court came down with two different definitions of weapons “use” during a felony: receiving a gun in exchange for drugs doesn’t count (Watson), but having explosives on one’s person while committing a felony, even if unrelated to the crime in question, does (Ressam). Read the rest of this entry »

In a significant rebuff of Pentagon policy on detainees, the D.C. Circuit Court has ruled that individuals cannot be labeled as enemies of the U.S. based on “bare assertions” not supported by “independent sources” that would make the claims reliable.  Explaining a decision that it had reached on June 20, but released Monday only in a heavily edited form to protect secrets, the Circuit Court was sharply critical of the information contained in a handful of intelligence documents used to justify keeping a Chinese national imprisoned at Guantanamo Bay, Cuba.

In deciding — in the first case of its kind — that the detention of Huzaifa Parhat was not supported by that evidence, the Circuit Court declined to rule on broader issues that lurked in the case on the President’s authority to order the detention of foreign nationals during the war-on-terrorism, either under the 9/11 Resolution that Congress passed after the 2001 terrorist attacks, or under the President’s constitutional powers as commander-in-chief.

“Because we conclude that the evidence…is insufficient to categorize Parhat as an enemy combatant under the Department of Defense’s definition, we do not reach the other issues disputed by the parties,” the three-judge panel said.

The decision, in redacted form, can be downloaded here.

While the ruling finds that Parhat is entitled to be released or transferred out of Guantanamo, and does so on the basis of questionable intelligence documents, it is unclear whether the ruling portends similar outcomes for other detainees challenging their imprisonment.  The fate of some 270 prisoners at Guantanamo may depend on the specific evidence, case by case, that the Pentagon assembled to support enemy combatant findings.

At the same time, however, the new decision was a clear demonstration that the civilian courts would analyze closely the claimed bases for enemy designations, and would be skeptical of any evidence that was not backed up with evident support for its reliability.  That may signal trouble in other cases, unless the Pentagon’s investigators went further in those than they did in building their case against Parhat.

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Last Thursday marked the end of the Supreme Court’s October Term 2007, and once again, Court-watchers are looking to describe the overall theme of the term. Last year, with fully a third of opinions splitting 5-4 — and a vast majority of those splits coming along ideological lines —  the new divisiveness of the Court provided the major story. This year, a seeming lack of that similar divisiveness has become the prevailing story line, with various commentators attributing it to liberal capitulation, Chief Justice John Roberts crafting narrow, moderate opinions which could attract bipartisan majorities, the Court retreating from political posturing to a more lawyerly role and even simply that the cases this term have not been as ideologically fraught as those of last year. This post attempts to analyze the situation: was OT 2007 really less contentious than OT 2006?

One way of measuring dissent is to look at “average dissenting votes”: total dissenting votes divided by total opinions. Under this metric, the level of divisiveness produced by two 7-2 decisions is the same as that produced by one 9-0 decision and one 5-4 decision — four dissenting votes over two cases. Using this approach, the dissention rate of OT 2007 was 1.85, higher in fact than OT 2006. Opinions in 2007 involved, therefore, the most dissent in at least the past dozen years. (See a graph of average dissenting votes from OT95 to OT07 here.)

At first blush, this high dissention rate seems like a very surprising number; after all, opinions decided over four dissenting votes declined from 24 last term (33% of the Court’s opinions) to 14, or 20%, of opinions this term (this includes Warner-Lambert and Tom F., both affirmed by an equally divided Court, which is itself a relatively rare occurrence). However, a couple of phenomena can help to explain this discrepancy.

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The Court has recessed for the summer. The opening conference for next term is scheduled for September 29, and oral arguments will resume October 6.

On Tuesday, the American Constitution Society and the Federalist Society will host separate panels reviewing the recently completed term. For more information on the events, which will take at the National Press Club in Washington, click here.

The petitioner’s merits brief is due Monday in Van de Kamp v. Goldstein (07-854). No respondents’ merits briefs are due this week. (Link directs to case page on SCOTUSwiki.)

Lawyers for the Pentagon and for detainees now held at Guantanamo Bay have already engaged in a debate — at least in summary form — over the meaning of the Supreme Court’s June 12 ruling in Boumediene v. Bush (06-1195).  In short, the military lawyers contend that the detainees are now protected by only a single constitutional right, while the prisoners’ attorneys claim at least nine.

Mainly by coincidence, the constitutional dispute is playing out in the Pentagon’s war crimes case against a Yemeni national, Salim Ahmed Hamdan.  He is the same detainee who won an earlier Supreme Court decision that the detainees had some legal right to challenge their detention — rights that Congress then moved to sharply curtail, an effort that the Supreme Court partly overturned in Boumediene.

The new phase of the constitutional disagreement will unfold in July when Hamdan’s trial resumes on charges of providing support to the Al Qaeda terrorist network in Afghanistan.  Hamdan’s trial before a military commission was postponed on May 16 by the presiding judge, to await the Court’s ruling in Boumediene.

Under a ruling Thursday by the judge, Navy Captain Keith J. Allred, Hamdan’s defense lawyers are to file their motions making constitutional claims by July 2, and, depending on how those motions fare, the trial could start on July 21 — the first criminal trial growing out of the “war on terrorism.”

Allred rejected the plea of the detainees’ defense team to delay the trial until Sept. 22 to give them more time to prepare their constitutional claims in the wake of the Supreme Court decision.  The motion for a continuance summarized what at least some of those claims will be.  The Pentagon’s opposition filing gave its view of the very limited scope of Boumediene.   The judge said that the time up to July 2 will give the defense enough time to prepare their constitutional motions.

The judge’s ruling can be downloaded here.  (Attached to the two-page ruling are the defense motion for continuance and the prosecutors’ response.  Thanks to Howard Bashman of How Appealing blog for providing a link to the Miami Herald file on these papers.)

The defense, in its motion filed one week after Boumediene was decided, argued: “Boumediene was decided in a manner sharply adverse to the Government, rejecting numerous positions advanced, and authorities relied upon, by the Government in this case….The Boumediene holding that substantive and structural constitutional protections extend to Guantanamo has major implications for this case.”

The motion asserted that “a large array of constitutional rights and protections now must be considered, affecting all aspects of the substantive and procedural law that must be applied in this case.” It indicated that the defense team would offer, “at a minimum,” motions to apply nine specifically enumerated constitutional rights.

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