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Wednesday round-up

Yesterday Senate Democrats were unable to break a Republican filibuster on the DISCLOSE Act, a legislative response to the Court’s recent decision in Citizens United v. Federal Election Commission that would require more disclosure in campaign spending. The bill, passed by the House last month, is now unlikely to clear the Senate in time to affect this year’s congressional campaigns. The Los Angeles Times, Politico, NPR, the Washington Post, the Hill, the New York Times, the Wall Street Journal, Bloomberg, the Boston Globe, and U.S. News & World Report all have coverage of the Senate vote. Editorials in the New York Times and the San Francisco Chronicle criticize Senate Republicans for blocking the bill.

The impacts of two other decisions from the most recent Term are also in the news.  Noeleen Walder reports for the New York Law Journal that New York trial courts have disagreed whether to apply retroactively the Supreme Court’s ruling in Padilla v. Kentucky. In Padilla, the Court held that an attorney has a constitutional obligation to inform a client whenever a guilty plea carries a risk that the client will be deported. Meanwhile, Bloomberg’s Greg Stohr reports that Morrison v. National Australia Bank, which holds that America’s main law against securities fraud does not apply to investment deals occurring outside the United States, is already having an impact on existing lawsuits and could save foreign-based companies billions of dollars in litigation costs.


  • Laurie Blank and Amos Guiora have an opinion piece in the Atlanta Journal-Constitution criticizing the Court for not halting the transfer of two Algerian detainees at Guantanamo earlier this month. They write that the Court “facilitated the first involuntary repatriation of a detainee who was never brought to trial.”
  • At the Volokh Conspiracy, Orin Kerr discusses a new cert. petition from the Department of Justice that he predicts is “very likely” to be granted.  The issue is “[w]hether the good-faith exception to the Fourth Amendment applies when a police officer conducts a search that was considered lawful at the time it occurred that is later recognized as unlawful before the conviction becomes final.”
  • ACSblog highlights President Obama’s remarks yesterday in the Rose Garden urging the Senate to confirm his judicial nominees.
  • In a post at Balkinization discussing when filibusters are justified, Sandy Levinson offers a critique of Senator Lindsey Graham’s explanation for why he will vote to confirm Elena Kagan. Levinson writes, “I obviously believe that Kagan deserves support and that the Republican opposition to her is spurious to the core, but if one really wants to roll back the New Deal, then it is completely rational to oppose Kagan.”
  • At the Huffington Post, Eric Liu defends the judge-umpire analogy on the ground that calling balls and strikes in baseball is a subjective, non-robotic interpretive exercise. Liu argues that progressives “should embrace [the analogy]. We should repeat it emphatically.”