Friday Round-up

Most of the major news outlets have coverage of the hospitalization of Justice Ruth Bader Ginsburg, including the Washington Post, Wall Street Journal, and USA Today, as well as the BLT.  It is the second time in less than a month that Ginsburg has been hospitalized, but she has returned home.  Yesterday Lyle covered the story extensively as well.

Wednesday’s oral argument in Alvarez v. Smith disappointed some commentators insofar as the Justices focused largely on procedural questions rather than on a clash between individual rights and the police.  Nathan Koppel at the WSJ Law Blog has this commentary.  Ilya Somin at The Volokh Conspiracy explains why the case should be a significant one for the Due Process Clause, though it has “failed to attract the attention it deserves.”

Following the grant of cert. in Skilling v. United States on Tuesday and the resulting attention on the federal “honest services” statute used to prosecute former Enron CEO Jeffrey Skilling, Ann Woolner at Bloomberg discusses the usefulness of the statute as a tool for prosecuting white-collar crime and government corruption. Tony Mauro at the BLT offers a new perspective on the grant — from Daniel Petrocelli, Skilling’s attorney.  Petrocelli thinks the Court is interested in Skilling’s case because it raises a new challenge to the “honest services” statute –  whether the government must prove that the defendant derived “private gain” from his actions – as well as questions about “what are the rules once there is a presumption of prejudice” resulting from pretrial publicity and local passions.  In an interview with AM Law Litigation Daily, Petrocelli declared that, if the Court upholds Skilling’s conviction, he will file a motion for a new trial based on “new evidence” uncovered since the last appeal. “People who’ve been working on this case for five years believe down to the cells of their being in his innocence,” Petrocelli said.

The First Amendment issues in United States v. Stevens continue to draw attention.  At ACSBlog, Naomi Werne, a criminal defense lawyer, argues that the Court should deem depictions of animal cruelty obscenity because they have no more “redeeming social value” than child pornography.

A Los Angeles Times editorial urges the Court, when it rules in the Miranda rights case Maryland v. Shatzer, argued last week, to create a clear limit on the time during which police must refrain from questioning a suspect in custody who has requested an attorney.

The New Haven firefighter promotion test is facing yet another federal lawsuit after the Court’s ruling last Term in Ricci v. DeStefano, as the New York Times reports.  The new suit challenges the scoring method, which weights the written section over the oral; the firefighter bringing the suit performed better on the oral portion and claims that it “more clearly measures the skills required to do the job.”

At Crime and Consequences, Kent Scheidegger surmises that Justice Sotomayor, as evidenced by her questions in Tuesday’s oral argument in Smith v. Spisak, may be more enthusiastic about enforcing the Antiterrorism and Effective Death Penalty Act than her predecessor, Justice Souter.

In the wake of the debate about the constitutionality of Ohio’s second attempts to execute death sentences by lethal injection, the Wall Street Journal has this feature on the national history of lethal injection and the use of other execution methods.  Because lethal injection is perceived as more humane than alternative methods, “some experts say states have bypassed the most reliable execution methods to save face with the public.”

At Concurring Opinions, Gerard Magliocca reviews Melvin Orofsky’s new biography of former Justice Louis Brandeis.  Last month the New York Times featured a longer review of the book by Harvard Law Professor Alan Dershowitz.