United States Supreme Court (2010-2011) Session

SCOTUS Fall 2010 Decisions
(2010-2011 Session)

July 2011

Scalia's pro-tobacco order tossed by high court

By Mark Sherman, Associated Press 

06-30-11 -- Supreme Court Justice Antonin Scalia exercised a rarely used power last fall to let Philip Morris USA and three other big tobacco companies delay making multimillion-dollar payments for a program to help people quit smoking. . . . Scalia, a cigarette smoker himself, justified acting on his own by predicting that at least three other justices would see things his way and want to hear the case, and that the high court then would probably strike down the expensive judgment against the companies. . . . This week, the court said he was wrong about that.

June 2011

Freedom of Speech Is Buttressed as U.S. Supreme Court Concludes Term

By Greg Stohr, Bloomberg News

06-28-11 -- The U.S. Supreme Court capped its nine-month term with a show of support for free speech. . . . Whether the topic was violent video games, pharmaceutical marketing campaigns or political contributions, the justices cast a skeptical eye toward government regulation of speech as they closed out their year with a flurry of First Amendment rulings. . . . The court yesterday struck down a California law barring the sale of violent video games to children, and voided an Arizona system that provided public funds to political candidates based on their opponents’ financial resources. Last week the court overturned a Vermont law aimed at limiting the ability of brand-name drugmakers to tailor their sales pitches to doctors. . . . “I wouldn’t say that the court’s track record on speech is absolutely perfect, but it’s pretty close to that,” said Steve Simpson of the Institute for Justice, an Arlington, Virginia, group that successfully challenged the Arizona system. The court has “really protected speech where it’s mattered the most, even though in some cases it’s clearly wanted to allow the government a certain amount of room to navigate.”

Lodi man cannot sue foreign manufacturer for product liability, U.S. Supreme Court rules

By Sarah Portlock / The Star-Ledger

06-28-11 -- A decade-old product liability case by a metalworker who severed four of his fingers cannot proceed in New Jersey state courts, the U.S. Supreme Court ruled yesterday. . . . Robert Nicastro had sued British manufacturer J. McIntryre Machinery in 2003, alleging the shearing machine’s safety was inadequate. But that decision was put on hold while courts decided whether a foreign company can be sued in state court for product liability. . . . Nicastro, a Lodi resident, was working on a shearing machine at Curcio Scrap Metal in Saddle Brook in 2001 when his hand became caught in the device. . . . In a 6-3 decision issued yesterday, the U.S. Supreme Court said J. McIntyre could not be sued here because it "never engaged in any activities in New Jersey," including having an office, paying taxes, owning property, advertising or sending employees to the state. Because of that, the manufacturer was not subject to jurisdiction in New Jersey. . . . That ruling reverses the state Supreme Court’s 5-2 decision in favor of Nicastro, which said a foreign company that targets a national market should reasonably expect its products would make their way to individual states

California ban on sale of 'violent' video games to children rejected

By Bill Mears, CNN Supreme Court Producer

06-27-11 -- The Supreme Court has struck down a California law that would have banned selling "violent" video games to children, a case balancing free speech rights with consumer protection. . . . The 7-2 ruling Monday is a victory for video game makers and sellers, who said the ban -- which had yet to go into effect -- would extend too far. They say the existing nationwide, industry-imposed, voluntary rating system is an adequate screen for parents to judge the appropriateness of computer game content. . . . The state says it has a legal obligation to protect children from graphic interactive images when the industry has failed to do so. . . . "As a means of assisting concerned parents it (the law) is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime," wrote Justice Antonin Scalia for the majority.

‘Snow White’ Cited in Scalia Opinion Striking Down Ban on Violent Video Games

By Debra Cassens Weiss, ABA Journal

06-27-11 -- The U.S. Supreme Court has struck down a California law barring the sale and rental of violent video games to minors. . . . The court ruled 7-2 that the law violates the First Amendment. Justice Antonin Scalia wrote the majority opinion (PDF). "Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of 'sexual conduct,' ” Scalia wrote. . . . California’s argument in support of the law could stand a better chance if the nation had a history of restricting violent fare for children. But violence pervades the literature of children and high-school students, Scalia said.

Justices strike down taxpayer-supported campaign spending law

By Bill Mears, CNN Supreme Court Producer

06-27-11 -- The Supreme Court has tossed out an Arizona law that provides extra taxpayer-funded support for office seekers who have been outspent by privately funded opponents or by independent political groups. . . . A conservative 5-4 majority of justices on Monday said the law violated free speech, concluding the state was impermissibly trying to "level the playing field" through a public finance system

Supreme Court puts extra burden on crime labs

Justices declare that a defendant in a drunken driving case has the right to demand that a lab technician testify in person about a test showing impairment.

By David G. Savage, Washington Bureau Los Angeles Times 

06-23-11 -- The Supreme Court on Thursday put an extra burden on crime labs, declaring that a man accused of drunken driving has the right to demand that a lab technician testify in person about a blood test that showed he was impaired. . . . The 5-4 decision was the latest to extend the reach of a defendant's constitutional right "to be confronted with the witnesses against him." And once again, the outcome was driven by an unusual coalition of conservative and liberal justices. . . . Two years ago, the court said a crime lab technician was a witness for the prosecution and, therefore, must be available to testify. In Thursday's decision, the court went a step further, saying it will not suffice to send any technician or lab analyst who can explain the testing. Rather, the prosecution must supply the same technician who conducted the blood test and signed to certify the result.

High court sides with defendant in Louisville crack cocaine case

Written by Andrew Wolfson Louisville Courier-Journal 

06-23-11 -- The U.S. Supreme Court ruled Thursday in a Louisville case that crack cocaine offenders sentenced under binding plea bargains have a right to try to reduce their sentences under new guidelines designed to lessen the disparity between penalties for crack and powder cocaine. . . . In a 5-4 decision, the court said that William Freeman, who agreed in 2005 to serve 106 months in prison for possessing about three grams of cocaine and a firearm, should be able to take advantage of the guidelines adopted two years later that reduced sentences for crack. . . . The guidelines were changed in 2007 after criticism that harsher sentences for crack disproportionately punished African Americans. . . . More than 16,000 offenders, including roughly 300 in Kentucky and 100 in Southern Indiana, already have had their sentences reduced by an average of 26 months.

Supreme Court rules against Anna Nicole Smith estate

By Michael Doyle | McClatchy Newspapers 

06-23-11 -- The estate of the late stripper and Playmate of the Year Anna Nicole Smith lost big Thursday, as a closely divided Supreme Court rejected the estate's claims for millions of dollars. . . . Wading into soap opera territory, the justices ruled that a bankruptcy court lacked the authority to award Smith's estate what at one point was some $425 million from Smith's late, billionaire husband. . . . The 5-4 ruling permanently constrains some bankruptcy court powers. It also seemingly concludes a tabloid-worthy dispute that has dragged on for about 15 years. . . . "This suit has, in course of time, become so complicated, that ... no two ... lawyers can talk about it for five minutes, without coming to a total disagreement as to all the premises." Chief Justice John Roberts wrote for the majority. "A long procession of judges has come in and gone out during that time, and still the suit drags its weary length before the court."

Supreme Court protects generic-drug makers from being sued for lack of warning

By Robert Barnes, Washington Post

06-23-11 -- Makers of generic drugs cannot be sued for not warning patients of the drugs’ dangerous side effects, the Supreme Court ruled Thursday, even though brand-name manufacturers can be found liable. . . . A five-member majority of the court recognized that it “makes little sense” to bar suits against generic drug-makers while allowing them against brand-name manufacturers, but said federal law gave the justices no other choice. . . . The ruling brought a sharp retort from the court’s liberals. . . . “As a result of today’s decision, whether a consumer harmed by inadequate warnings can obtain relief turns solely on the happenstance of whether her pharmacist filled her prescription with a brand-name or generic drug,” wrote Justice Sonia Sotomayor, who noted that 75 percent of prescriptions are filled with generic drugs. . . .“The court gets one thing right: This outcome ‘makes little sense.’ ”

High court rejects climate change suit

Marcia Coyle, The National Law Journal

06-20-11 -- A unanimous U.S. Supreme Court on Monday rejected an ambitious effort by a number of states and private land trusts to combat climate change through public nuisance lawsuits against major utilities. . . . The Court, in an opinion by Justice Ruth Bader Ginsburg, held that the federal Clean Air Act and actions by the Environmental Protection Agency "displace" any federal common-law right to protect citizens from the public nuisance created by carbon-dioxide emissions from fossil-fuel fired power plants. (Justice Sonia Sotomayor did not participate in the case.) . . . The question before the justices, said Ginsburg, was one of "who decides," the federal agency to which Congress delegated authority in this area, or the courts. . . . "The test for whether congressional legislation excludes the declaration of federal common law is whether the statute 'speaks directly to the question' at issue," wrote Ginsburg. Referring to the Court's landmark 2007 decision in Massachusetts v. EPA, she added, "Massachusetts made plain that emissions of carbon dioxide qualify as air pollution subject to regulation under the [Clean Air] Act. And we think it equally plain that the Act 'speaks directly' to emissions of carbon dioxide from the defendants' plants."

Court rejects right to counsel in civil contempt cases

David Ingram, The National Law Journal

06-20-11 -- The U.S. Supreme Court on Monday delivered a major setback to those who want the right to counsel extended to indigent defendants in civil contempt cases. . . . None of the justices came out in favor of the idea in Turner v. Rogers, a case involving a South Carolina man who spent a year in prison for civil contempt after failing to pay child support. . . . The American Bar Association, among others, had urged the Court to find that the man, Michael Turner, had a right to counsel when facing imprisonment, whether the proceeding he was in was civil or criminal. . . . The Court, however, split on a related question of whether Turner's proceeding violated the Fourteenth Amendment's due process clause. . . . Justice Stephen Breyer wrote for a five-justice majority that the judgment against Turner had to be vacated because the proceeding lacked basic safeguards. Justice Clarence Thomas dissented, writing that the question wasn't ripe for decision because it came up only in an amicus brief filed by the Solicitor General's Office.

Supreme Court dismisses women's class action lawsuit

 against Wal-Mart

The Supreme Court decision, seen as a victory for Wal-Mart and corporate America, makes it more difficult for employees to join together in a common lawsuit unless they are able to identify a common injury.

By Warren Richey, Christian Science Monitor Staff writer

06-20-11 -- In a major victory for Wal-Mart and much of corporate America, the US Supreme Court on Monday dismissed the largest gender discrimination class action lawsuit in history. . . . In a 5 to 4 opinion, the justices reversed a lower court decision allowing as many as 1.5 million female workers to sue the nation’s biggest private employer for back pay and punitive damages that could have totaled billions of dollars. . . . The decision makes it more difficult for employees and others to join together in a common lawsuit unless they are able to clearly identify a common injury, such as a company-wide discriminatory policy. . . . In a ruling on a secondary aspect of the case, all nine justices agreed that the Ninth US Circuit Court of Appeals in San Francisco erred in allowing the massive class action lawsuit to move forward on claims seeking back pay. . . . “The Supreme Court’s ruling should surprise no one,” said Anthony Sabino, a law professor at St. John’s University. “Class actions are predicated on ‘common questions.’ A class of millions of disgruntled employees is just too vast to present a handful of questions that are fundamental to each and every one of them,” he said. “This is especially true for employment decisions that turn on so many idiosyncrasies of individual workers and their managers.”

Miranda rights for minors

The Supreme Court decided correctly in extending the warning to children questioned by police in school.

The Los Angeles Times Editorial

06-20-11 -- It's obvious — except to a minority of the Supreme Court — that a juvenile being questioned by the police will feel less able to get up and leave than an adult in the same situation. Adapting that reality to the requirements of the Miranda rule, a five-member majority held this week that courts must consider a suspect's age in deciding whether he should have been read his rights. Any other decision would have been unconscionable. . . . The 5-4 ruling arises from the interrogation of a 13-year-old North Carolina boy suspected of committing two home break-ins. A police investigator questioned the boy in a school conference room, but he wasn't read his rights. By adult standards, the boy wasn't in custody, the trigger for a Miranda warning.

Supreme Court rules against longer prison sentences in order to rehabilitate

Supreme Court justices rule 9-0 that federal law does not allow judges to lengthen sentences with the aim of rehabilitating prisoners.

By David G. Savage, Washington Bureau, The Los Angeles Times 

06-17-11 -- Judges may not send criminals to longer terms in federal prison with the aim of rehabilitating them, the Supreme Court ruled. . . . The 9-0 ruling Thursday is a victory for a San Diego-area woman who questioned a judge's decision to give her more time behind bars so she could participate in a drug treatment program. . . . More than 80,000 convicted criminals are sentenced by federal judges each year, and until Thursday, the courts were split over whether defendants could be given more time behind bars for their own good. . . . Citing the words of the federal sentencing act, the justices said the law forbids using imprisonment as a "means of promoting correction and rehabilitation."

Lansdale woman can challenge terror law in poisoning case

By John Shiffman, The Philadelphia Inquirer Staff Writer  

06-17-11 -- The U.S. Supreme Court ruled Thursday that a Lansdale woman who poisoned her husband's pregnant paramour can challenge her conviction under a terrorism law that has kept her in prison since 2007. . . . The case of Carol Anne Bond had been widely followed because it offered soap-opera facts, acts of judicial origami, and the application of a terror law in a romantic context. . . . The court's 9-0 decision affirms the right of individuals to challenge the constitutionality of certain federal laws. Bond's lawyers argue that a federal chemical-weapons law infringes on state powers reserved to Pennsylvania under the 10th Amendment.

High court spurns atheist's 'under God' challenge

Bob Egelko, San Francisco Chronicle Staff Writer 

06-15-11 -- A Sacramento atheist's challenge to the addition of "under God" to the Pledge of Allegiance, which stirred a legal and political frenzy nearly a decade ago, has quietly expired in the U.S. Supreme Court. . . . Michael Newdow said Tuesday, however, that he isn't giving up and plans to file one or more lawsuits this year in hopes of winning a favorable ruling that would eventually reach the high court.

Supreme Court upholds recusal rule

By Robert Barnes, The Washington Post 

06-13-11 -- Ethics laws that require a legislator to abstain from voting when there is a potential conflict of interest are as old as the union, the Supreme Court ruled Monday, and do not violate the First Amendment’s protection of free speech. . . . The court’s unanimous decision overturned a Nevada Supreme Court decision that said public officials’ votes were a form of constitutionally protected self-expression. In an opinion by Justice Antonin Scalia, the court said laws requiring legislators to recuse themselves from voting on issues in which they have an interest “have been commonplace for over 200 years.”

Justices Decline to Hear Pledge of Allegiance Challenge

By Mark Walsh "School Law" blog of Education Week.  

06-13-11 -- The U.S. Supreme Court on Monday declined to take up another challenge to school-led recitations of the Pledge of Allegiance. . . . The justices declined without comment to consider a federal appeals court decision that upheld a New Hampshire law requiring schools to set aside time daily for students to voluntarily recite the Pledge. . . . The case was one of two in which the lawyer and activist Michael A. Newdow has challenged school recitations of the Pledge because of the inclusion of the words "under God." . . . A three-judge panel of the U.S. Court of Appeals for the 1st Circuit, in Boston, had ruled in November that the New Hampshire requirement does not violate the First Amendment's prohibition against government establishment of religion or other provisions of the U.S. Constitution.

You Can't Verify The Trust, Supreme Court Tells Apache Nation

By Andrew Cohen,The Atlantic 

06-13-11 -- The United States Supreme Court Monday once again stuck it to Native American litigants. In a 7-1 opinion (Justice Elena Kagan recused), the Court sided with the U.S. government and against the Jicarilla Apache Nation in a fiduciary-duties case brought by the Nation to determine whether and to what extent federal officials mismanaged the tribe's money. The decision was hardly sweeping-- it involved a discovery dispute and the application of the attorney-client privilege-- but it's still worth a closer look. . . . The Nation sued the feds in 2002 asserting that the government breached its fiduciary duty to properly manage funds generated from the culling of timber, gravel and oil and gas resources from the Tribe's land in Northeastern New Mexico. As all plaintiffs do, the Nation sought through discovery access to government documents that its lawyers thought might help establish that federal officials "failed to maximize returns on trust funds, invested too heavily in short-term maturities, and failed to pool its trust funds with other tribal trusts."

Supreme Court Considers the Word ‘Make,’ Shields Mutual Fund Company from Suit

By Debra Cassens Weiss ABA Journal

The U.S. Supreme Court has held in a 5-4 decision that a mutual fund advisory company can’t be held liable in an investor suit for false statements in prospectuses prepared by its client funds. . . . SCOTUSblog calls the decision shielding Janus Capital Management from liability “an important limitation on the scope of 10b-5 liability.” The majority opinion (PDF) by Justice Clarence Thomas said JCM can’t be liable because it did not “make” the statements in the prospectuses. . . . JCM, a subsidiary of Janus Capital Group, acts as an investment adviser and administrator to a family of mutual funds. The funds were created by the parent company but are owned by investors. JCM had helped write and disseminate the prospectuses, but it did not “make” the alleged false statements within the meaning of Rule 10b-5 of the Securities and Exchange Act, Thomas said.

Win Without a Lawyer Affordable Step-by-Step Self-Help Tutorials Show How If You Have a Lawyer - KNOW WHAT SHOULD BE DONE If You Don't Have a Lawyer - KNOW WHAT YOU MUST DO Created by an Attorney with 20+ Years Experience Winning Lawsuits Click for instant on-line access Jurisdictionary®

High court weighs in on citizenship rules, copyrights

By Bill Mears, CNN Supreme Court Producer

06-13-11 -- A Mexican-born man who contested a federal law on citizenship that treats men and women differently, has lost his appeal at the Supreme Court. . . . The justices split 4-4 on Monday to uphold the criminal conviction of Ruben Flores-Villar. When these rare ties occur, the lower court ruling is automatically upheld, but no national precedent is set. . . . At issue is whether his equal protection rights were violated by what he claimed was gender discrimination. . . . Flores-Villar was born in Mexico to an American father and Mexican mother. The couple never married and the child was brought to the San Diego, California area at age two and raised by his father and grandmother, both U.S. citizens. . . . As an adult he was convicted of smuggling marijuana and illegal entry, and after a prison term he was deported to Tijuana. . . . The man tried to avoid deportation by claiming he was a U.S. citizen. The case turned on a federal five-year residence requirement, after the age of 14, on U.S. male citizen fathers -- but not on U.S. citizen mothers -- before they may transmit citizenship to a child born out of wedlock abroad to a non-citizen.

Justices rule on when lawmakers should recuse from issues

By Bill Mears, CNN Supreme Court Producer

06-13-11 -- The Supreme Court has ruled against a Nevada lawmaker whose public vote on a pending development project put him at odds with a state ethics commission. . . . In a unanimous decision Monday, the justices said the state panel was right to conclude Sparks City Councilman Michael Carrigan should have stepped aside on issues where conflicts of interest could arise. Carrigan's longtime friend and campaign manager was a paid consultant to a company trying to build a local hotel and casino in Sparks. . . . The free-speech case hit close to home for members of the high court, who also face questions about recusal and the independence of public officials to decide matters where public confidence might be compromised. It comes amid a period of increasing national debate over Supreme Court recusal in hot-button political matters like health care reform.

At term's end, Supreme Court opinions anything but brief

By Joan Biskupic, USA TODAY 

06-13-11 -- Asked what would happen if the Supreme Court began writing shorter opinions, Chief Justice John Roberts said, "We could all leave earlier in the spring, I guess, than in summer." . . . But then Roberts caught himself and told his interviewer, legal-writing expert Bryan Garner, that that wasn't really true. "I'm sure that it's harder to write shorter and crisper than it is to write long and dull," Roberts said in a 2007 exchange recently published in a law journal. . . . The Supreme Court has entered the season of the long opinion. June is finals month of the annual term, when the nine justices finish the toughest cases that have been pending since early fall — including, this term, a dispute over California's ban on the sale of violent video games to minors.

Court adds to scope of 'violent felony' law

By David G. Savage, Los Angeles Times, Philadelphia Inquirer  

06-10-11 -- Fleeing from the police in a car can trigger a mandatory 15-year term in federal prison for a repeat criminal who is carrying a gun, the Supreme Court ruled Thursday. . . . Splitting 6-3, it said that "vehicular flight" counted as a "violent felony" under the Armed Career Criminal Act, triggering the mandatory term if it is a third offense. . . . Speeding away from the police "presents a serious potential risk of physical injury to another," Justice Anthony M. Kennedy wrote for the majority in Sykes v. United States. "It is a provocative and dangerous act that dares, and in a typical case requires, the officer to give chase."

In Dissent, Justice Scalia Calls Out Gutless Lawmakers

Judges get blamed for their "activism," but the real problem is the failure of legislators to create clear laws

By Andrew Cohen, The Atlantic 

06-09-11 -- One of the first things you realize in law school is that "the law" is less often a majestic tapestry of justice, and more often vague and ambiguous, arbitrary and capricious. This is true of the contours of the "rule of law," the broad concept which helps describe the legal system of a nation state. And it is true of most specific laws: statutes, codes, etc. It helps explain why the world evidently needs most of the schmillions of lawyers and judges who currently inhabit it. . . . There are many reasons for the law's mushy presence in our lives, but the most significant one involves the way lawmakers practice their craft. The compromises that politics generate, when reflected in the language of legislation, usually dissolve away any chance for the sort of certitude the law favors. It's easy for politicians to agree upon the use of the word "reasonable" when defining a new restriction or policy, for example, because it passes along to the judge and jury the task of defining what "reasonable" is or ought to be in a specific instance. The politician gets the credit for passing a law. And the public blames the judge for applying its vague language (or, less frequently, for striking it down).

How Microsoft's Supreme Court loss hurts Apple and Google

Microsoft lost the U.S. Supreme Court case in a unanimous decision Thursday. It will have to pay Toronto-based i4i $290 million. The technology industry also lost the chance to build a stronger defense against intellectual-property lawsuits.

By Sharon Pian Chan, Seattle Times technology reporter 

06-09-11 -- While Thursday's Supreme Court ruling against Microsoft rested on a subtle distinction in patent cases, the issue was so provocative that entire industries lined up on both sides of the fight. . . . Microsoft won support from tech frenemies Apple, Google, even open-source advocate Electronic Frontier Foundation. . . . On the other side, pharmaceutical and manufacturing giants Genentech, Bayer, Caterpillar and 3M aligned themselves with i4i, a speck of a company that sued Microsoft for patent infringement over an obscure feature in Word. . . . Microsoft lost the U.S. Supreme Court case in a unanimous decision Thursday. It will have to pay Toronto-based i4i $290 million. The technology industry also lost the chance to build a stronger defense against intellectual-property lawsuits.

Kagan Opinion Deems Fee-Shifting Calculations to Be ‘Rough Justice’

By Debra Cassens Weiss, ABA Journal

06-06-11 -- If litigation had more dramatic resolutions, fee-shifting litigation would be a lot easier, Justice Elena Kagan muses in a U.S. Supreme Court ruling today on attorney fee awards. . . . The issue: How should a court apportion attorney fees under the civil rights fee-shifting statute when a plaintiff asserts both frivolous and nonfrivolous claims? Kagan tackled the question in a unanimous opinion (PDF) for the court that talked about the nature of real-world litigation and the difficulties of determining fees. . . . When both frivolous and nonfrivolous claims are made, Kagan said, courts may grant reasonable fees to the defendant, but only for costs that the defendant would not have incurred but for the frivolous claims. . . . The dispute before the court involved allegations of dirty tricks in a Louisiana local election for the chief of police. The plaintiff, Ricky Fox, won the election despite his opponent’s tactics, then filed suit, citing a mixture of federal civil rights claims and state law claims, including defamation. Fox later conceded the federal claims were frivolous, but the state claims are ongoing.

Supreme Court Rules Against Stanford in HIV Patent Battle

By Debra Cassens Weiss, ABA Journal

06-06-11 -- The U.S. Supreme Court has ruled against Stanford University in a patent battle over a testing procedure that measures the HIV virus in blood samples. . . . The Supreme Court ruled for Roche Molecular Systems Inc. in a 7-2 opinion (PDF) by Chief Justice John G. Roberts Jr. Roberts wrote that Stanford University was not automatically vested with rights to the procedure under a 1980 law that preserves government contractors’ patent rights for inventions developed with federal funding.

Supreme Court Rules for Shareholders Seeking Class Action Status Against Halliburton

By Debra Cassens Weiss, ABA Journal

06-06-11 -- The U.S. Supreme Court has ruled that shareholders suing a company for securities fraud don’t have to prove the defendant’s deceptive conduct caused their losses before obtaining certification of their class action. . . . Chief Justice John G. Roberts Jr. wrote the unanimous opinion (PDF) in a shareholder suit against the Halliburton Co. that had alleged the company made misleading statements about its asbestos liabilities and expected revenues from construction contracts.

Court's dynamic NY duo

Kagan, Soto united

By Andy Soltis, The New York Post

06-06-11 -- They're in a New York state of mind. . . . The newest members of the nation's highest court -- local Obama appointees Sonia Sotomayor and Elena Kagan -- have agreed with each other in all 23 cases they've voted on, which is a supreme rarity, observers said. . . . Liberal critics who deride the Supreme Court's rightward shift over the past 10 years have cited conservative alliances like "Scalito," Justices Antonin Scalia and Samuel Alito. . . . But Scalia and Alito have agreed with each other in only 84 percent of cases in the current term, which winds up this month. . . . Legal scholars find the Sotomayor-Kagan mind meld a bit unusual but hardly shocking. . . . "The pattern of agreement is typically based on ideology or a view of the law," said professor Barry Friedman of NYU Law School. "It's not that surprising that Barack Obama's two appointees showed agreement."

Supreme Court Allows Execution of Texas Inmate to Proceed

By Mark Hansen, ABA Journal

06-03-11 -- The U.S. Supreme Court has lifted a stay of execution for a Texas death row inmate who has twice come close to being executed in the past five months. . . . Cleve Foster, a 47-year-old former Army recruiter, was sentenced to death in 2004 for the 2002 murder of a 28-year-old woman he met in a bar. . . . The Supreme Court had stayed the execution while it considered whether Foster, a Persian Gulf veteran, had received adequate counsel during his trial and appeal, according to a New York Times report. Foster's lawyers had also challenged the legality of his execution based on the state's use of pentobarbital, which is also used to euthanize animals, in its lethal injections. . . . The court's ruling frees the state to set a new execution date for Foster.

May 2011

Supreme Court Finds John Ashcroft Not Liable for Material Witness Arrest, Hits 9th Circuit

By Debra Cassens Weiss, ABA Journal

05-31-11 -- The U.S. Supreme Court has ruled against a former college football player who had claimed he was unconstitutionally held as a material witness in a terrorism probe after the Sept. 11 terrorist attacks. . . . The U.S. Supreme Court found no liability for former Attorney General John Ashcroft in an 8-0 opinion. Writing for the court, Justice Antonin Scalia takes the San Francisco-based 9th U.S. Circuit Court of Appeals to task for ruling otherwise based on citations to “irrelevant” cases, broad references to history, and a district court judge's shout out to the former attorney general. . . . Abdullah al-Kidd, a Muslim and a former star running back at the University of Idaho, sued after he was arrested on a material witness warrant as he was preparing to board a plane for Saudi Arabia. Al-Kidd, a U.S. citizen, claims he was held for 16 days with hardened criminals, where he was strip-searched and shackled. He was never called as a witness in a terrorism prosecution.

Supreme Court Seeks US Views on Cell Phone Suit, as WHO Sees Possible Cancer Link

By Debra Cassens Weiss, ABA Journal

05-31-11 -- The U.S. Supreme Court has asked the United States to weigh in on a pending cert petition in a lawsuit that contends cellphone companies misled consumers about radiation and possible health risks. . . . The name plaintiff in the would-be class action, Francis Farina, says the defendants should have included headsets with cellphones to reduce radiation dangers, Law360 reports. At issue in the Supreme Court case is whether the state law claims are pre-empted because they frustrate federal regulations, according to the cert petition (PDF posted by SCOTUSblog).

US top court rejects ex-media baron Black's appeal

* Black has been free on bail awaiting resentencing

* Second time his case reached the Supreme Court

* Empire included newspapers in London, Chicago, Jerusalem

Reuters 

05-31-11 -- The U.S. Supreme Court on Tuesday cleared the way for resentencing former media baron Conrad Black next month in Chicago for fraud and obstruction of justice after rejecting his appeal. . . . A U.S. appeals court in October upheld Black's 2007 conviction on one fraud count and for obstructing justice while it overturned two other fraud convictions. It ruled that the case be sent back to the trial judge for resentencing. . . . The ruling was based on a Supreme Court decision in June 2010 that narrowed the reach of a fraud law used to convict the Canadian-born Black and other former executives at one-time newspaper publishing giant Hollinger International Inc.

Justices Uphold Immigrant Law

States Can Shut Firms That Hire Illegal Workers

By Jess Bravin & Miriam Jordan, The Wall Street Journal

05-27-11 -- The Supreme Court Thursday upheld an Arizona law that can put employers from fast-food chains to farms out of business for hiring illegal immigrants, sparking fears among businesses that they will be hamstrung by a patchwork of state regulations. . . . The 5-3 ruling split the business community from immigration hardliners who hailed it as an affirmation of states' rights to crack down on illegal migrants. . . . The Legal Arizona Workers Act requires employers to use a federal system called E-Verify to check employees' legal status. It says the state can revoke charters or licenses from employers that repeatedly hire noncitizens lacking work permits. Signing the legislation in 2007, then-Gov. Janet Napolitano called it the "business death penalty."

U.S. Supreme Court Dismisses School Questioning Case

By Mark Walsh, School Law" blog of Education Week

05-26-11 -- The U.S. Supreme Court on Thursday sidestepped an important test of whether in-school interviews of students by the police and other authorities require a warrant, ruling that the case—involving the questioning of an Oregon girl by authorities who believed she was a victim of sexual abuse at home—was moot. . . . However, without deciding the merits of the issue, the court set aside part of a federal appeals court ruling that the Fourth Amendment required investigators to have a warrant or parental consent before interviewing students in school. . . . Justice Elena Kagan, writing for the majority in Camreta v. Greene (Case No. 09-1454), said that because the young woman at the center of the case no longer lived in Oregon and would soon graduate from high school, she no longer faced the prospect of a warrantless police interview in school.

Supreme Court upholds order that may release thousands of California inmates

By Robert Barnes, Washington Post

05-23-11 -- A bitterly divided Supreme Court on Monday upheld a judicial order that could result in the release of nearly 40,000 prisoners from a California penal system so overcrowded that its conditions are, the court wrote, “incompatible with the concept of human dignity.” . . . Justice Anthony M. Kennedy, a California native, joined the court’s four consistent liberals in agreeing that, after nearly two decades of litigation, it is time for the courts to force the state to act. . . . “The release of prisoners in large numbers — assuming the state finds no other way to comply with the order — is a matter of undoubted, grave concern,” Kennedy wrote. “Yet so too is the continuing injury and harm resulting from these serious constitutional violations.” . . . He was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. . . . Justice Antonin Scalia signaled the extent of his disagreement with the decision by reading his dissent from the bench. . . . He said the justices were affirming “perhaps the most radical injunction issued by a court in our nation’s history” and warned of “terrible things sure to happen as a consequence of this outrageous order.” He was joined in his biting dissent by Justice Clarence Thomas.

Supreme Court Dispenses ‘Rough Equity’ in Ruling on State Secrets and a Jet Contract

By Debra Cassens Weiss, ABA Journal

05-23-11 -- The U.S. Supreme Court has ruled that neither the government nor two defense contractors can pursue billion-dollar claims in a contract dispute because of the possibility that state secrets will be revealed. . . . Justice Antonin Scalia wrote the unanimous opinion (PDF) in the dispute over a stealth-fighter contract. The ruling, he acknowledged, “produces rough, very rough, equity.” . . . The United States had paid $2.7 billion for work on the A-12 Avenger attack plane when it canceled its contract with the Boeing Co. and General Dynamics Corp., citing the companies’ failure to meet important milestones. The companies had spent $3.88 billion trying to develop the jet. . . . As a defense, the companies claimed the Pentagon had failed to share its stealth fighter technology. The government, in turn, protested when discovery on the defense claim inadvertently revealed state secrets. . . . The government had sought return of $1.35 billion in progress payments made to the companies; The companies had sought reinstatement of a $1.2 billion damages award under the contract. Neither will likely be successful.

Justices side with police in warrantless search

By Joan Biskupic, USA TODAY 

05-16-11 -- The Supreme Court by an 8-1 vote Monday enhanced the ability of police to break down a door and seize drugs or other evidence of wrongdoing if officers believe it is being destroyed. . . . The majority upheld the forced, warrantless entry of a Lexington, Ky., apartment that occurred after police, chasing a suspected drug dealer into a breezeway, focused on the wrong unit because of the smell of marijuana and noises coming from inside. Officers kicked in the door, saying later they had no time to get a warrant because they believed people inside were trying to get rid of evidence. . . . Only Justice Ruth Bader Ginsburg dissented, asserting that the majority "today arms the police with a way routinely to dishonor the Fourth Amendment's warrant requirement in drug cases."

Justices reject appeals on rendition, word 'God' in presidential oath

By Bill Mears, CNN Supreme Court Producer, CNN International  

05-16-11 -- The Supreme Court has again refused to review the limits of liability involving the secret detention of a suspected terrorist under the government's post-9/11 "extraordinary rendition" program. . . . In a separate case, the court turned aside a challenge to the use of the phrase "so help me God" as an informal part of the presidential oath of office. . . . In the "extraordinary rendition" case, the justices without comment on Monday rejected the petition of Binyam Mohamed and four other men, each of whom claims he was "forcibly disappeared and transported to arbitrary detention and torture on flights" arranged by a private government contractor at the behest of the Central Intelligence Agency. The high court's order stops a pending lawsuit. . . . At issue is when federal courts can intervene when the White House invokes the "state secrets privilege," preventing disclosure of sensitive or national security information. The high court has not fully examined the state-secrets privilege since 1953, when it affirmed the government's ability to limit public release of certain types of evidence.

Scalia Accuses Majority of ‘Blatant Dictum’ in Paving a Second Avenue for ERISA Relief

By Debra Cassens Weiss, ABA Journal

05-16-11 -- The U.S. Supreme Court is giving about 25,000 Cigna Corp. employees another chance to force changes in the company’s pension plan. . . . The Supreme Court opinion (PDF) said the employees may be entitled to relief under the Employee Retirement Income Security Act, but not under the provision applied by the federal court. The employees had claimed the company failed to notify them about pension changes that would cut their benefits. A federal judge had sided with the workers and required Cigna to reform the new plan so it was in accord with promises made.

Freedom of Information Request Can’t Be Used for Whistle-Blower Suit, Supreme Court Says

By Debra Cassens Weiss, ABA Journal

05-16-11 -- Whistle-blowers hoping to recover money by suing government contractors for alleged fraud can’t base their suits on information collected in freedom of information requests, the U.S. Supreme Court has ruled. . . . The Supreme Court ruled (PDF) against whistle-blower Daniel Kirk in a 5-3 opinion, according to the Associated Press and United Press International. Kirk had alleged his former employer, Schindler Elevator Corp., misreported the numbers of veterans it employed, and had supported his allegations with information gleaned from requests made under the Freedom of Information Act.

HELP KEEP VICTIMS-OF-LAW ON THE WEB SHOP OUR ADVERTISERS OR CONTRIBUTE NOW

‘Jerusalem’ or ‘Israel?’ Supreme Court case raises trove of constitutional questions

By Robert Barnes, The New York Times  

05-08-11 -- Young Menachem Binyamin Zivotofsky, an 8-year-old American born in Jerusalem, likes to brag to his older siblings that he is the only one of them born in Israel. . . . He and his parents would like the U.S. government to agree. . . . But the Zivotofskys’ request to change Menachem’s passport to say his birthplace is “Israel” rather than simply “Jerusalem” has met firm resistance from the State Department. . . . “The status of Jerusalem is one of the most sensitive and long-standing disputes in the Arab-Israeli conflict,” the government said in its brief to the court. It is not one in which the United States has been willing to choose sides. . . . Over the objection of the Obama administration, the Supreme Court last week agreed to review the long-running dispute over Menachem’s passport. The slim petition filed by veteran Supreme Court practitioner Nathan Lewin manages to pack in a trove of constitutional questions for argument next fall.

Trial lawyers lose to arbitration law in Supreme Court

By: Ken Klukowski, Washington Examiner OpEd Contributor

05-03-11 -- Congress's decades-old federal arbitration law cannot be set aside by a trial-lawyer-friendly rule in states like California, the Supreme Court said in a decision last week with big implications for the future of American litigation. . . . Litigation can be cumbersome and tedious. It's often drawn out and exasperatingly slow. And with so many lawyers billing by the hour, litigation can be very, very expensive. . . . The predictable frustration arising from this reality leads many to seek alternative forms of dispute resolution. While there are several alternatives, arbitration is one commonly written into a contract as a way to settle disagreements without a full-blown court case. . . . Many judges prefer the strict rules and procedures of litigation. As a result of many court rulings pushing people into litigation, as far back as 1925, Congress passed the Federal Arbitration Act. . . . That law provides that arbitration clauses in contracts must be upheld by courts unless there is some factor present in a given situation (such as fraud or duress) that would invalidate any contract made under those circumstances.

High Court Shuts Down Fight Over Water Rights

By Barbara Leonard. Courthouse News Service

05-02-11 -- Montana cannot challenge Wyoming's more efficient irrigation process, even though the increased water consumption deprives its northern neighbor of its usual water allotment, the Supreme Court ruled, 7-1, on Monday. . . . Congress funds water-storage facilities in the area because snow melt causes flows of the Yellowstone River to vary widely, and the states need every drop for irrigation. Under the Yellowstone River Compact of 1951, Wyoming, Montana and North Dakota each get a share of the water necessary for the uses it required before 1950. . . . Wyoming gets a certain percentage of any remaining and unappropriated water from the Yellowstone River's four tributaries, and Montana receives the rest. . . . The Supreme Court authorized Montana in 2008 to sue Wyoming over an alleged breach of their compact. Montana claimed that Wyoming was exceeding its water share for "new, post-1950 uses," such as irrigating new acreage, building new storage facilities, conducting new groundwater pumping and increasing consumption on existing agricultural acreage.

U.S. Supreme Court’s Alito Allows Mississippi Levee Breach Plan

By Andrew Harris, Bloomberg

05-02-11 -- U.S. Supreme Court Justice Samuel A. Alito denied Missouri’s bid for an order blocking the U.S. Army Corps of Engineers from blasting a Mississippi River levee and diverting water into state farmland to avert flooding upriver. . . . The high court’s associate justice last night declined to issue the injunction requested by Missouri Attorney General Chris Koster earlier yesterday, according to Patricia McCabe Estrada, a spokeswoman for the highest U.S. court. . . . Heavy rainfall has swelled river levels to their highest since 1937, according to a statement issued by the Army Corps yesterday. The corps proposes to breach the Birds Point levee near Cape Girardeau in southeast Missouri, diverting river water onto a 130,000-acre floodplain with about 100 homes. . . . The floodway is “designed to minimize damage and save lives from historic flood levels,” Army Corps Major General Michael Walsh said in the statement. “Its purpose is to lower flood stages and pressure on the entire system during major flood events.” . . . The U.S. estimates that breaching the levee may cause $314 million in damage within the floodway, compared with more than $1.7 billion in damage across swaths of Missouri, Illinois and Kentucky that may result if levees elsewhere on the system are overtopped or burst in uncontrolled flooding.

April 2011

High court wary of Vt. limits on Rx data mining

Tony Mauro, First Amendment Center Legal Correspondent  

04-27-11 -- The Supreme Court seems poised to give at least some form of First Amendment protection to the modern-day enterprise of data mining – gathering and selling commercial data for the benefit of corporate and other clients. . . . The justices heard arguments yesterday in Sorrell v. IMS Health, a challenge to a Vermont law that limits one category of valuable data: the drug-prescribing practices of physicians. The law bars the sale of this prescribing data to data miners and pharmaceutical companies unless doctors give their consent – even though the information is gathered and made available for other purposes, including law enforcement. By requiring consent from doctors for the sale of their information for marketing purposes, the law undermines the value of the prescribing data to drug companies. The companies use the information – and pay premium prices for it – to target their sales pitches to doctors based on which medications they already prescribe.

Supreme Court Ruling Places Limits on Class Actions

By Adam Liptak,  New York Times 

04-27-11 -- Businesses may use standard-form contracts to forbid consumers claiming fraud from banding together in a single arbitration, the Supreme Court ruled on Wednesday in a 5-4 decision that split along ideological lines. . . . Though the decision concerned arbitrations, it appeared to provide businesses with a way to avoid class-action lawsuits in court. All they need do, the decision suggested, is use standard-form contracts that require two things: that disputes be raised only through the informal mechanism of arbitration and that claims be brought one by one. . . . “The decision basically lets companies escape class actions, so long as they do so by means of arbitration agreements,” Brian T. Fitzpatrick, a law professor at Vanderbilt University, said. “This is a game changer for businesses. It’s one of the most important and favorable cases for businesses in a very long time.”

Supreme Court Rejects Request for Expedited Hearing on Health Law Challenge

By Lee Ross, FoxNews.com 

04-25-11 -- The legal fight over President Obama's health care overhaul will apparently go through normal legal channels after the Supreme Court on Monday announced it will not expedite a major lawsuit from Virginia challenging the controversial law. . . . It's the second time the high court has denied a expedited review request from the law's opponents. While Monday's decision doesn't foreclose others from asking the justices to do the same with their cases, it now seems unlikely that the court would break its regular protocols to hear a dispute that will almost certainly come before them -- just not now. 

Under the U.S. Supreme Court: The bizarre world of the 'birther'

By Michael Kirkland, UPI  

04-24-11 -- The purported controversy over where President Barack Obama was born is one of the most bizarre legal and political episodes in U.S. history, with millions believing as an article of faith that he was not born in the United States. . . . That would mean, of course, that Obama is not legitimately president. . . . Article II, section I of the Constitution plainly says, "No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of president ... " . . . But to the astonishment of "birther" true believers, Obama refuses to ... well, go. . . . Despite a controversy supposedly based on the Constitution, no court, military or civil, from the U.S. Supreme Court on down, has ever given "birther" assertions the slightest traction. No federal judge has ever treated a "birther" suit as anything remotely serious -- with the exception of being seriously annoying. . . . Not so politicians.

Inmates lose a remedy for religion-rights violations

By Tony Mauro, First Amendment Center legal correspondent 

04-21-11 -- Prison inmates may be left without an effective remedy for violations of their religious freedom as a result of a Supreme Court ruling yesterday, civil rights advocates say. . . . The Court ruled in Sossamon v. Texas that states may not be sued for money damages under the Religious Land Use and Institutionalized Persons Act, a 2000 federal law aimed in part at protecting the First Amendment right of prisoners to practice their religion. . . . The ruling still allows inmates to win injunctions that would stop or change policies that impinge on religious freedom. But critics say that without the possibility of monetary damages, states will have little incentive to change their ways or punish officials for their actions. Critics argue that without damages it will be easy for states to avoid the scrutiny of courts by transferring or releasing prisoners or by slightly modifying policies to make cases moot.

VOPA v. Stewart: The Real Conservatism of Justice John Roberts

By Garrett Epps, The Atlantic

04-19-11 -- In today's case about a state agency's right to sue state government, the chief justice channels King Lear in a dramatically right-wing dissent  . . . When Antonin Scalia and Clarence Thomas are outflanked on the right, it draws attention. Chief Justice John Roberts's dissent in a case announced Monday, Virginia Office for Protection and Advocacy v. Stewart (PDF), gives us a reminder of how conservative the Chief Justice really is. . . . The issue in this case was, to simplify, the question of when a state agency may sue its own state government on a federal claim in federal court. To Scalia and five other Justices, including Thomas, it was a routine application of a long-standing jurisdictional precedent. Justice Kennedy also concurred but wrote separately to express doubt not about the suit but about the statute itself. Roberts and Justice Samuel Alito, aghast at the perfidy of their colleagues, ended up channeling Shakespeare's King Lear. . . . The case arises because a federal program funds state programs for the mentally disabled and the mentally ill. If a state accepts the funds, it must set up an independent watchdog agency to monitor the funded programs. The agency can either be entirely private or be a state agency structured to ensure its independence. Virginia elected to set up a state agency--the plaintiff in this case, known as VOPA.

Court won’t stop lawsuit against Chipotle

By Associated Press, Boston Herald 

04-18-11 -- The Supreme Court won’t stop a disabled man’s lawsuit against Chipotle Mexican Grill for having counters too high for a person in a wheelchair. . . . The high court on Monday refused to hear an appeal from the Denver-based chain. . . . Maurizio Antoninetti sued when he found that he could not see the Chipotle food preparers because of the height of the counters. A federal judge ruled against him, saying Antoninetti had sued dozens of other places for access violations and dropped the suit after received cash settlements.

High court will hear '95 Navy SEAL innocence claim

By Frank Green | Richmond Times-Dispatch  

04-18-11 -- The well-traveled innocence claim of a former Navy SEAL trainee convicted of the murder of a college student reaches its last stop today before the Virginia Supreme Court. . . . The justices will consider an exoneration bid sought by Dustin Allen Turner that was rejected last year by the Virginia Court of Appeals. . . . Jennifer Evans, 21, an Emory University student visiting Virginia Beach, was murdered June 19, 1995, after leaving a Virginia Beach nightclub with Turner, now 36, and Billy Joe Brown, 38. Turner and Brown were "swim buddies" in SEAL training at the time. . . . Evans was strangled while the three were inside a car. Her body was dumped in a wooded area in Newport News off Interstate 64. The two were convicted in 1996. Turner was sentenced to 82 years in prison and Brown to 72 years.

Cuccinelli Makes Long-Shot Court Bid to Overturn Obama's Health-Care Law

By Greg Stohr , Bloomberg News  

04-18-11 -- Ken Cuccinelli, the Virginia attorney general challenging President Barack Obama’s health- care overhaul, is quick to agree that his request for fast-track review by the U.S. Supreme Court is a long shot. . . . “It is,” Cuccinelli said. “But there’s so much money at stake for the states and for the private sector and there’s so much uncertainty produced in the economy because of this legislation that it was worth the ask.” . . . Cuccinelli’s bid, which asks the justices to consider the law’s constitutionality without waiting for an appeals court to rule, marks the first time a state challenge to the law has reached the nation’s highest court. The justices may act on the request as early as today.

Justice Department challenges ruling on GPS use

Surveillance key in drug ring trial

By Jim McElhatton, The Washington Times  

04-17-11 -- The Justice Department has asked the Supreme Court to review whether federal agents violated the Fourth Amendment rights of a Maryland man when they attached a satellite tracking device to his car without getting a warrant during a D.C. drug-trafficking investigation. . . . In a 121-page brief Friday, the department argued that the full U.S. Court of Appeals for the District of Columbia got it wrong when it upheld a three-judge panel’s reversal of Antoine Jones‘ conviction on charges of running a drug ring in the District. . . . The initial ruling last summer says police can’t use global positioning satellite (GPS) technology to track a suspect’s car without getting a warrant. The full court, in a 5-4 decision last fall, refused to reconsider the decision.

Private Education Tax Credits Upheld by U.S. Supreme Court

By Greg Stohr, Bloomberg

04-04-11 -- The U.S. Supreme Court put new limits on the power of citizens to challenge government programs as unconstitutionally promoting religion, upholding an Arizona tax credit aimed at helping cover private-school tuition costs. . . . The justices, voting 5-4, today said opponents lacked “standing” to challenge the 14-year-old program, which gives tax credits for donations to organizations that provide private- school scholarships. The opponents faulted the program for relying on religious organizations that require their recipients to enroll in sectarian schools. . . . The ruling marks the second under Chief Justice John Roberts to insulate government programs from church-state challenges. The court in 2007 threw out a suit over then- President George W. Bush’s faith-based initiatives office. . . . The case split the court along familiar lines, with the court’s five Republican appointees -- Roberts and Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy and Samuel Alito -- in the majority.

Supreme Court Reinstates Death Penalty in Calif. Case, Says Psychiatric Evidence Introduced Too Late

By Debra Cassens Weiss, ABA Journal

04-04-11 -- The U.S. Supreme Court has reinstated the death sentence for a man convicted in a Los Angeles double murder, despite evidence that his trial lawyer had failed to introduce evidence of his psychological problems. . . . Justice Clarence Thomas wrote the opinion (PDF) reinstating the death sentence for Scott Lynn Pinholster, convicted of killing two men who interrupted him while robbing a drug dealer. The decision in Cullen v. Pinholster overturns a ruling granting habeas relief by the San Francisco-based 9th U.S. Circuit Court of Appeals. . . . According to Thomas, the Antiterrorism and Effective Death Penalty Act bars federal courts from considering new evidence that was not presented to state courts considering an inmate's claim on the merits. The new evidence in Pinholster's case included the opinions of new psychiatric experts who concluded the inmate suffers from partial epilepsy, brain injury and organic personality syndrome.

HELP KEEP VICTIMS-OF-LAW ON THE WEB SHOP OUR ADVERTISERS OR CONTRIBUTE NOW

March 2011

Wal-Mart Discrimination Dispute Reveals Gender Gap at the U.S. High Court

By Greg Stohr, Bloomberg

03-30-11 -- A gender gap emerged at the U.S. Supreme Court as the court’s three female justices tussled with their male colleagues over a nationwide discrimination suit against Wal-Mart Stores Inc. (WMT) . . . Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan all voiced at least qualified support yesterday for the class-action suit, which claims women across the country were victimized by Wal-Mart’s practice of letting local managers make subjective decisions about pay and promotions. The dispute marks the first gender-bias case the court has considered with three women on the bench. . . . The three took the lead in questioning Wal-Mart’s attorney, Theodore Boutrous. Ginsburg spoke about how corporate decision- makers tend to hire people like themselves, while Sotomayor endorsed the use of statistical analysis in discrimination cases. Kagan balked when Boutrous said the workers’ case was based on an “incoherent theory.”

Supreme Court Prohibits Public Hospitals From Suing for Drug Overcharges

Written by Lindsey Dunn, Becker's Hospital Review 

03-30-11 -- The U.S. Supreme Court has ruled that public hospitals and community health centers cannot sue drug manufacturers over alleged overcharging for prescription medications. . . . In the case, Astra USA v. Santa Clara County, the Justices ruled 8-0 in favor of the petitioner. Justice Elena Kagan did not take part, according to a Bloomberg Businessweek report. . . . Read the full Supreme Court ruling in Astra USA v. Santa Clara County on Leagle.com.

U.S. Supreme Court rejects $14 million judgment against New Orleans district attorney's office

By Laura Maggi, The Times-Picayune NOLA.com  

03-29-11 -- In a close decision split along ideological lines, the U.S. Supreme Court on Tuesday reversed rulings from lower courts and decided that the Orleans Parish district attorney's office does not have to pay a $14 million judgment to a former death row inmate who was convicted of murder after prosecutors withheld evidence. . . . Orleans Parish District Attorney Leon Cannizzaro heralded the decision, saying it "removes a dark cloud of uncertainty that was hanging over the district attorney's office when I arrived here in 2008." . . . Cannizzaro noted that the judgment, which he estimated had grown to $20 million with interest over the past four years, would have effectively shuttered the district attorney's office. . . . The opinion was signed off on by the court's conservative majority. It was written by Justice Clarence Thomas, who was joined by Justices John Roberts, Samuel Alito, Antonin Scalia and Anthony Kennedy. At issue was whether the district attorney's office could be held liable for the actions of a couple of prosecutors who admittedly hid some blood evidence favorable to John Thompson in an armed robbery case before taking him to trial in the 1984 murder of hotel executive Ray Liuzza during an Uptown stickup. . . . Prosecutors typically enjoy immunity from such lawsuits, but a jury in 2007 sided with Thompson, who sued the district attorney's office for railroading him onto death row by keeping exculpatory evidence secret in the robbery case.

Justices to hear appeal over Wal-Mart gender pay lawsuit

By Bill Mears, CNN Supreme Court Producer 

03-28-11 -- Think big -- really big -- and you may understand the stakes in an upcoming Supreme Court case that could have a profound impact on nearly every American business with employees. . . . At issue is whether the justices should allow certification of the largest class-action employment lawsuit in U.S. history, a long-standing dispute against mega-corporation Wal-Mart Stores Inc. over alleged gender bias in pay and promotions. Arguments in the case are Tuesday morning and ruling can be expected by late June. . . . The company is the world's largest retailer and the nation's largest private employer. If the class-action goes through, hundreds of thousands of women -- perhaps as many as 1.6 million plaintiffs -- could join in the largest discrimination claim of its kind. Tens of billions of dollars or more in damages are potentially at stake.

Supreme Court to Decide Whether Lutheran School Teacher Can Sue for Retaliation

By Debra Cassens Weiss, ABA Journal

03-28-11 -- The U.S. Supreme Court has agreed to decide whether a Lutheran elementary school can be sued for retaliation by a narcoleptic teacher who wanted to return to work after a disability leave. . . . The religious school in Redford, Mich., fired teacher Cheryl Perich for insubordination after she reported for work even though administrators said they would not rehire her in the middle of the school year, according to the petition for certiorari (PDF posted by SCOTUSblog). The Cincinnati-based 6th U.S. Circuit Court of Appeals had ruled that the school district was not protected from suit, despite First Amendment protection as a religious organization, because Perich spent most of her time on secular duties*****The Becket Fund for Religious Liberty, which represents the school, has more information at its website.

The Supreme Court explains when a complaint is a complaint

Reporting by Linda Coady, Esq., editor, Westlaw Journal Employment 

03-25-11 -- Workers who complain to their employers about violations of workplace laws need not do so in writing in order to be protected from retaliation, a split U.S. Supreme Court has ruled. . . . In a 6-2 vote, the high court clarified the meaning of the phrase “filed any complaint” as it is used in the anti-retaliation provision of the federal Fair Labor Standards Act, 29 U.S.C. § 201.  The FLSA sets rules concerning wages, hours and overtime pay, and prohibits employers from firing employees who have reported violations. . . . Justice Stephen Breyer, writing for the majority, concluded that employees’ oral, as well as written, complaints are protected under the statute. . . . Although noting that the word “file” may more often be associated with something written, Justice Breyer focused instead on the words “any complaint.” . . . “So even if the word ‘filed’ considered alone, might suggest a narrow interpretation limited to writings, the phrase ‘any complaint’ suggest a broad interpretation that could include an oral complaint,” he explained. . . . The case is Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834, 2011 WL 977061 (U.S. Mar. 22, 2011) 

Justices debate rights of juveniles

By Joan Biskupic, USA TODAY

03-24-11 -- How easy is it for police or judges to put themselves in the mind of a 13-year-old student whom an officer pulled from class and took to a closed room for questioning about stolen goods? . . . In an important test of the constitutional rights of juveniles at the Supreme Court on Wednesday, the question was whether law enforcement officials would know if the youth felt free to leave the room or not respond to questions. . . . The answer is crucial because if the suspect believes he is in custody, police are required to read him his Miranda rights, informing him he has a right to remain silent and that anything he says can be used against him. . . . "Let's take a hypothetical trial judge who is 60 years old and has an IQ that's at least average," Justice Samuel Alito posed. "You're asking this trial judge to decide whether ... say, a 14-year-old with an IQ of 85 would (believe) that he or she was free to leave?"

Supreme Court restores California rape conviction

The decision reverses an appeals court that overturned the conviction of Steven Jackson in the Sacramento-area rape of a 72-year-old woman. Justices, in an opinion that reveals irritation, call the appeals court ruling 'inexplicable.' It's the 10th time since November they've reversed 9th Circuit rulings.

By David G. Savage, Washington Bureau, Los Angeles Times 

03-21-11 -- The Supreme Court unanimously restored the conviction of a California rapist on Monday and slapped the 9th Circuit Court of Appeals again for handing down an opinion it called "inexplicable" and "dismissive" in tone. . . . The decision marked the 10th time since November that the justices had reversed rulings of the 9th Circuit, and nearly all of them were unanimous. . . . Repeatedly, the justices have faulted the San Francisco-based appeals court for intervening in state criminal cases and for second-guessing the criminal rulings of the California state courts. Their opinion reflected a tone of irritation. . . . The Supreme Court said "the court of appeals offered a one-sentence conclusory explanation" for setting aside the rulings of a series of state judges in the case of a Sacramento-area rapist, the Supreme Court wrote. "That decision is as inexplicable as it is unexplained. It is reversed," the justices said in an unsigned opinion.

Supreme Court to Decide if Sullivan and Cromwell’s Mailroom Mix-Up Bars Capital Appeal

By Debra Cassens Weiss, ABA Journal

03-21-11 -- The U.S. Supreme Court has agreed to decide whether a mailroom mix-up at Sullivan & Cromwell that resulted in a missed deadline bars the habeas appeal of a death row inmate. . . . The court granted cert today in Maples v. Allen, the Associated Press reports. Former Solicitor General Gregory Garre of Latham & Watkins filed the cert petition (PDF posted by SCOTUSblog).

Supreme Court decision on sentencing guidelines gives judges more leeway

Robert Barnes, Washington Post  

03-14-11 -- Jason Pepper, a former meth addict and drug dealer from the heartland, says he got lucky when he was finally arrested. A sympathetic judge gave him a fraction of the prison time he could have received and, more importantly, sent him to a place where he got extensive drug treatment. . . . Then his luck ran out, when appeals courts said his sentence was too lenient. Even though all acknowledged that he had turned his life around, he was sent back to prison. . . . But perhaps his fortunes have turned again. The Supreme Court plucked his petition from the thousands that make their way to the court each year. This month, Pepper won his case in a victory that gives federal judges more leeway to provide second chances to the criminals who come before them.

Justices have been siding with workers, underdogs

Although the Supreme Court is often viewed as pro-business and conservative, it has taken the other side in several recent cases. Observers call it a useful reminder that the court isn't predictable.

By David G. Savage, Washington Bureau, The Los Angeles Times 

03-13-11 -- The Supreme Court, often described as conservative, divided and pro-corporate, has been sounding different notes in recent weeks. . . . The justices have been unanimous, or nearly so, in dealing defeats to employers and to corporations. They have also taken the side of hard-luck plaintiffs who were mistreated by the government. . . . Twice recently the court ruled for fired workers and expanded the reach of anti-discrimination laws. It revived an injured motorist's suit against Mazda, refusing to shield automakers from safety claims. The justices rejected a corporation's claim of "personal privacy," and they twice ruled for prisoners, one who had been abused and another who said he was rehabilitated. . . . They even bent their rigid rule on deadlines for legal appeals to give the "benefit of any doubt" to disabled war veterans. And they gave a death row inmate a new right to seek DNA evidence that he says could prove his innocence.

Justices again rein in exemption to FOIA
By Tony Mauro, First Amendment Center legal correspondent   

03-08-11-- March 2011 is turning out to be a very good month for advocates of maximum disclosure of government documents under the Freedom of Information Act. . . . Less than a week after an important victory limiting one of the law’s exemptions in FCC v. AT&T, the Court yesterday handed down an even more significant decision narrowing another exemption, in Milner v. Department of the Navy. . . . The 8-1 Milner decision upends 30 years of federal government practice invoking the exemption at issue to withhold a broad swath of material — well beyond documents relating to “internal personnel rules and practices” that the exemption was written to protect from disclosure. . . . Last year alone, according to the ruling, federal agencies invoked this Exemption 2 more than 72,000 times to withhold documents from the public. . . . “Today’s ruling ensures that Exemption 2 will not become a catch-all that allows the government to keep vast amounts of information from the public, contrary to FOIA’s goal of allowing the public to know what its government is doing,” said Adina Rosenbaum of Public Citizen.

DNA Evidence Bid Backed in U.S. Supreme Court Ruling

By Greg Stohr, Bloomberg

03-07-11 -- The U.S. Supreme Court buttressed the ability of some convicted murderers to get access to DNA evidence, ruling in favor of a Texas death row inmate who says new testing of crime-scene material might exonerate him. . . . The justices, voting 6-3, today said Henry W. Skinner, convicted of the 1993 murders of his girlfriend and her two adult sons, can press ahead with a lawsuit that seeks access to evidence in his case. The justices had halted Skinner’s execution while they considered his appeal. . . . The decision opens a new legal avenue for some convicted murderers, saying they can use a federal law to seek DNA testing that might prove their innocence. . . . The ruling doesn’t necessarily mean Skinner will get access to the DNA evidence. Writing for the majority, Justice Ruth Bader Ginsburg said a lower court should consider other arguments by Texas officials in the case. . . . Justices Clarence Thomas, Anthony Kennedy and Samuel Alito dissented. / Skinner v. Switzer pdf

Kagan’s Majority Opinion Boosts Puget Sound Resident’s Quest for Explosives Maps

By Debra Cassens Weiss, ABA Journal

03-07-11 -- A Washington State resident’s quest for maps of explosives locations at a Puget Sound naval base got a boost from the U.S. Supreme Court today. . . . The requested maps and other explosives information can’t be withheld under an exemption to the Freedom of Information Act for documents about personnel rules and practices, the Supreme Court ruled in an 8-1 decision (PDF). Justice Elena Kagan wrote the majority opinion. . . . “Judicial decisions since FOIA’s enactment have analyzed and reanalyzed the meaning of the exemption,” Kagan wrote. “But comparatively little attention has focused on the provision’s 12 simple words: ‘related solely to the internal personnel rules and practices of an agency.’ ”

Court Won't Hear Challenge to 'In God We Trust'

Associated Press, Newsmax

03-07-11 -- The Supreme Court won't hesr an atheist's latest challenge to the U.S. government's references to God. . . . The court on Monday refused to hear an appeal from Michael Newdow, who says government references to God are unconstitutional and infringe on his religious beliefs. . . . This appeal dealt with the inscription of the national motto "In God We Trust" on U.S. coins and currency. The 9th U.S. Circuit Court of Appeals in San Francisco says the phrase is ceremonial and patriotic and "has nothing whatsoever to do with the establishment of religion."

The case is Newdow v. Lefevre, 10-893.

Justices Rule for Protesters at Military Funerals

By Adam Liptak, New York Times  

03-02-11 -- The First Amendment protects hateful protests at military funerals, the Supreme Court ruled on Wednesday in an 8-1 decision. . . . “Speech is powerful,” Chief Justice John G. Roberts Jr. wrote for the majority. “It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain.” . . . But under the First Amendment, he went on, “we cannot react to that pain by punishing the speaker.” Instead, the national commitment to free speech, he said, requires protection of “even hurtful speech on public issues to ensure that we do not stifle public debate.” . . . The case arose from a protest at the funeral of a Marine who had died in Iraq, Lance Cpl. Matthew A. Snyder. As they had at hundreds of other funerals, members of the Westboro Baptist Church of Topeka, Kan., appeared with signs bearing messages like “America is Doomed” and “God Hates Fags.” . . . The church contends that God is punishing the United States for its tolerance of homosexuality. . . . The father of the fallen Marine, Albert Snyder, sued the protesters for, among other things, intentional infliction of emotional distress, and won a substantial jury award that was later overturned by an appeals court.

 09-751 Snyder v. Phelps (03-02-2011) pdf

Law Prof Sees Opportunity for Defense Lawyers in High Court Decision for Rehabilitated Felon

By Debra Cassens Weiss, ABA Journal

03-02-11 -- An Ohio state law professor says a U.S. Supreme Court decision issued today on judges’ powers at resentencing will likely provide fodder for defense lawyers. . . . The court held that a defendant’s efforts to rehabilitate himself may be taken into account at resentencing, despite a sentencing guideline to the contrary.

The court ruled in the case of Jason Pepper, who had argued that the resentencing judge should have considered that he had found a job and gotten married after serving an initial 24-month sentence that was overturned on appeal. The resentencing judge had added 41 months to Pepper’s sentence. The Associated Press and SCOTUSblog reported on the decision (PDF).

Unanimously, Supreme Court Backs Veterans in 2 Cases

By Adam Liptak, New York Times 

03-01-11 -- The Supreme Court issued two unanimous decisions on Tuesday reflecting solicitude for members of the military. . . . In one, the court relaxed a filing deadline that had served to deny benefits to disabled veterans. In the other, it made it easier for military personnel to sue private employers for discriminating against them based on hostility to their service. . . . The first case, Henderson v. Shinseki, No. 09-1036, concerned David L. Henderson, who was discharged from the military in 1952 after receiving a diagnosis of paranoid schizophrenia. He sought additional government help for his condition in 2001, and he was turned down in 2004. . . . Mr. Henderson missed a 120-day deadline to file an appeal by 15 days. He attributed the lapse to the very disability for which he had sought help. . . . The United States Court of Appeals for the Federal Circuit, in Washington, said the deadline could not be waived in light of a 2007 decision from the Supreme Court, Bowles v. Russell. That 5-to-4 decision said filing deadlines in ordinary civil cases could not be waived even when the late filing was the product of erroneous instructions from a judge.

Justices question need for warrant for child

By David G. Savage, Tribune Washington Bureau, Los Angeles Times  

03-01-11 -- The Supreme Court justices, hearing arguments in a closely watched case involving child-abuse investigations at school, took sharp exception to the notion that a search warrant or a parent's consent is required before a child can be questioned at school by a child care worker or a police officer. . . .Each year, state and local agencies investigate more than 3 million claims of child abuse or neglect. In about one in four cases, the investigators decide that some abuse took place. . . . The high court has not ruled on whether the Constitution put some limits on investigations at school. However, the U.S. 9th Circuit Court of Appeals in San Francisco got the attention of child care workers nationwide when it ruled that investigators usually need a search warrant before taking a child out of class for questioning. . . . Oregon's attorney general and an Obama administration lawyer urged the justices to overturn that ruling.

Chief Justice John Roberts: Word Nerd

By Garrett Epps The Atlantic   

03-01-11 -- It might be fun to have a beer with Chief Justice John Roberts, but God spare me from ever having to play Scrabble against him. . . . The constant in Roberts' career is that he is, well, a word nerd, enamored of dictionaries, derivations, grammatical parsing, and fine points of usage. Those skills were on display today in the Court's decision in Federal Communications Commission v. AT&T Inc., in which the Court unanimously decided (Justice Elena Kagan recused herself) that the words "personal privacy" in the Freedom of Information Act do not cover a giant corporation (PDF).

February 2011

High Court Allows Dying Man’s Shooter ID; Scalia Hits Majority’s ‘Active Imagination’

By Debra Cassens Weiss, ABA Journal

02-28-11 -- Justice Antonin Scalia argued in dissent today that the Supreme Court has left its confrontation clause jurisprudence “in a shambles” by creating an expansive exception that allows admission of pretrial statements by victims of violent crimes. . . . Scalia is known for a series of opinions on the rights of defendants to confront witnesses at trial that are based on his originalist view of the Constitution. Today, Scalia and Justice Ruth Bader Ginsburg dissented in Michigan v. Bryant, a decision allowing admission of statements by a dying man who told Detroit police that a man named “Rick” had shot him. Ginsburg wrote separately. . . . Justice Sonia Sotomayor wrote the majority opinion (PDF), which held the statements were admissible because their primary purpose was to aid the police in an emergency. Therefore, the statements were not testimonial and their admission at trial did not violate the confrontation clause, she concluded. Justice Elena Kagan did not participate in the case.

Supreme Court to hear case of detained Muslim

Ashcroft's liability for use of material witness law under review.

By Mark Sherman, Associated Press, Austin American-Statesman 

02-27-11 -- Handcuffed and marched through Washington's Dulles International Airport in his Muslim clothing, the man with the long beard could only imagine what people were thinking. . . . That scene unfolded in March 2003, a year and a half after the Sept. 11 terrorist attacks. One of the four planes hijacked in 2001 took off from Dulles. "I could only assume that they thought I was a terrorist," Abdullah al-Kidd recalled in an interview with The Associated Press. . . . Kidd called his airport arrest "one of the most, if not the most, humiliating experiences of my life." . . . Over the next 16 days he would be strip-searched repeatedly, left naked in a jail cell and shower for more than 90 minutes in view of other men and women, and kept with people who had been convicted of violent crimes.

High court to decide if parents 'forfeit' rights

Bill Bumpas - OneNewsNow

02-25-11 -- The Supreme Court is set to hear a case that could limit the rights of parents and students in public schools when government officials come knocking. . . . According to John Whitehead, president of The Rutherford Institute, the case before the high court will determine whether a state human services caseworker and deputy sheriff violated the rights of a nine-year-old Oregon girl in 2003 when they removed the child from her classroom, without parental consent or a court order, to question her about allegations of parental abuse. . . . "She was left alone with the sheriff for two hours, and he interrogated her, trying to get her to say that her father had sexually molested her. She became visibly sick...that night... [and] the mother later filed a lawsuit," Whitehead accounts. "This has wiggled its way up through the court of appeals. The Ninth Circuit Court of Appeals ruled in favor of the parents, saying this is an unreasonable search and seizure under the Fourth Amendment. And now, the U.S. Supreme Court is going to hear this case."

Supreme Court Clears Way for Seat-Belt Lawsuits

By Brent Kendall, Wall Street Journal 

02-23-11 -- The Supreme Court ruled that federal vehicle safety regulations don't protect auto makers from product-liability lawsuits for installing lap-only seat belts. . . . The unanimous decision, written by Justice Stephen Breyer, clears the way for a California lawsuit against Mazda Motor Corp. stemming from a 2002 fatal collision involving a 1993 Mazda MPV minivan. A rear-seat passenger wearing a lap-only seat belt was killed, and her family alleges that the lap-only belt was to blame. . . . Two California courts had ruled that the plaintiffs' lawsuit couldn't proceed because it was barred by federal law. . . . The relevant regulations have since changed, and most passenger vehicles built after Sept. 1, 2007, must include shoulder-and-lap seat belts in all rear seating positions that face forward. However, hundreds of thousands of vehicles containing lap-only belts remain on the road. . . . Justice Breyer distinguished Wednesday's seat-belt ruling from a 2000 Supreme Court decision he wrote that barred lawsuits against auto makers that didn't install air bags in their vehicles.

U.S. SC rules for vaccine makers

By Jessica M. Karmasek, Legal Newsline  

02-23-11 -- The U.S. Supreme Court, in a 6-2 ruling on Tuesday, has protected vaccine makers from lawsuits by parents whose children have allegedly suffered side effects from the medications. . . . Justice Antonin Scalia, who authored the Court's opinion, pointed to the National Childhood Vaccine Injury Act of 1986. . . . The act, he wrote, "created a no-fault compensation program to stabilize a vaccine market adversely affected by an increase in vaccine-related tort litigation and to facilitate compensation to claimants who found pursuing legitimate vaccine-inflicted injuries too costly and difficult." . . . The act provides that a party alleging a vaccine-related injury may file a petition for compensation in the Court of Federal Claims, naming the Health and Human Services Secretary as the respondent; that the court must resolve the case by a specified deadline; and that the claimant can then decide whether to accept the court's judgment or reject it and seek tort relief from the vaccine manufacturer.

Supreme Court upholds California's loose rules for inmate appeals

By Michael Doyle | McClatchy Newspapers

02-23-11 -- The Supreme Court on Wednesday upheld California's relatively flexible approach to handling inmates' appeals. . . . In a case that arose out of a 1986 Sacramento murder, the court unanimously accepted California's unusual standard for deciding when inmates have waited too long to challenge their convictions. Unlike most states, California doesn't set a specific deadline. . . . "Discretion enables a court to home in on case-specific considerations and to avoid the harsh results that sometimes attend consistent application of an unyielding rule," Justice Ruth Bader Ginsburg wrote for the court. . . . By contrast, Idaho and 12 other states set strict one-year habeas corpus deadlines once convictions are final. Florida and three other states set two-year deadlines. Texas and 15 other states set fixed deadlines of various lengths. Sixteen other states have no deadlines. . . . The 13-page decision rejecting the appeal of convicted killer Charles W. Martin united the court's liberal and conservative wings, perhaps for different reasons.

Court Weighs the Power of Congress

By Adam Liptak, The New York Times   

02-22-11 -- The Supreme Court heard arguments on Tuesday in a case that touched on the most pressing constitutional question of the day: just how much power does Congress have to regulate matters ordinarily left up to the states? The fate of President Obama’s health care law will turn on how that question is answered. . . . But based on the justices’ comments, the lurid facts of the case and the odd posture in which it reached the court, the eventual decision will probably offer only limited guidance on the health care law’s prospects. . . . The case heard Tuesday, Bond v. United States, No. 09-1227, arose from a domestic dispute. Carol A. Bond, a Pennsylvania woman, did not take it well when she learned that her husband was the father of her best friend’s child. She promised to make her former friend’s life “a living hell,” and she drew on her skills as a microbiologist to do so. . . . Ms. Bond spread harmful chemicals on her friend’s car, mailbox and doorknob. The friend suffered only a minor injury. . . . Such matters are usually handled by the local police and prosecutors. In Ms. Bond’s case, though, federal prosecutors charged her with using unconventional weapons in violation of the Chemical Weapons Convention of 1993, a treaty concerned with terrorists and rogue states.

Don't Make Federal Case Out of It, Says Woman Who Tried to Poison Best Friend

Andrew Cohen, Politics Daily  

02-20-11 -- The U.S. Supreme Court hears oral argument Tuesday morning in a rare case that combines a fact pattern fitting for tabloid fare with legal questions that go to the core of the heated political debate over federal authority and state power. The case is styled Bond v. United States and it has a little something for everyone from Nancy Grace to the Federalist Society. . . . The story starts with Carol Anne Bond, who tried to poison her best friend, Myrlinda Haynes, after discovering that Haynes had become pregnant from an affair with Bond's husband. Over several months, Bond tried to poison Haynes at least 24 times -- spreading a dangerous mix of chemicals on doorknobs, car-door handles and Haynes' mailbox -- before she was caught. A federal grand jury in Philadelphia then charged Bond with possessing and using a chemical weapon in violation of a federal statute designed to implement the United States' treaty obligations under the 1993 Chemical Weapons Convention.

Supreme Court confronts conflicting laws on post-conviction DNA testing

Robert Barnes, Washington Post Staff Writer

02-14-11 -- The news brings almost routine stories about wrongfully convicted prisoners who are exonerated by DNA testing, but they often have traveled widely divergent paths to freedom. . . . In some states, only prisoners facing execution have the right to DNA testing to try to prove their innocence. In others, anyone who pleaded guilty is barred from asking for the testing. In the patchwork of legislation passed by Congress and 48 states, even individual prosecutors can carry great weight. . . . The Supreme Court is again considering the tangled legal questions that accompany the issue in the case of Henry Skinner, who says DNA evidence could settle the question of whether he murdered his girlfriend and her two developmentally disabled adult sons.

January 2011

Your Rx or your privacy

The Supreme Court will decide whether states can bar the buying and selling of prescription data.

Los Angeles Times Editorial      

01-31-11 -- IMS Health Inc. operates in the shadows of the healthcare industry, gathering data that drug makers can use to sell medications more effectively. The data, however, are taken from the prescriptions that doctors write for their patients. That information is at the heart of a dispute over how far states can go to protect privacy — a dispute that has reached the Supreme Court, and one that could broaden the reach of the 1st Amendment in troubling ways. . . . IMS and a handful of market research competitors pay pharmacists for the details contained in prescriptions, including the name of the doctor and the patient, the drug prescribed and the dosage. They compile that information into databases that track individual doctors' prescribing habits, replacing patients' names with "de-identified" numbers. Such databases can be valuable to the public, potentially helping to enforce drug laws, find patterns in the spread of disease and spot variations in how medications are used. But the main use — and the one that pays for the databases — is to help pharmaceutical companies persuade physicians to prescribe more of their products. . . . That's one of the reasons states across the country have proposed or enacted regulations governing prescription data mining. Drug makers hire legions of sales representatives to pitch physicians in person about new products and new applications for older medications. They pay market researchers millions of dollars for information on individual doctors' prescriptions because it helps them find sick people (chronically sick people in particular) who could be treated with their drugs or who are taking their competitors' medications.

Justice Scalia Pens Employee-Friendly Opinion on Retaliation

By Ashby Jones, Wall Street Journal (blog) 

01-25-11 -- Federal law bans employers from retaliating against a worker for filing a discrimination claim. . . . But does federal law ban employers from retaliating against a close associate of a worker who filed a discrimination claim? . . . In a word, yes. . . . In a unanimous 8-0 decision on Monday (Justice Elena Kagan did not take part in the decision), the Supreme Court ruled that employers can be sued for such behavior. Click here for the story, from the WSJ’s Supreme Court correspondent Jess Bravin. . . . Bravin writes that the ruling marks the latest in a string of employee victories on retaliation: “While some business issues have polarized a court known for ideological splits, the justices have showed little tolerance for employer efforts to evade civil-rights laws by retaliating against workers who invoke them.” . . . Monday’s case involved Madrid-based Acerinox SA’s North American Stainless mill in Ghent, Ky., where both Miriam Regalado and her then-fiancé, Eric Thompson, worked.

High court backs sexually assaulted inmate

Associated Press, Boston Globe     

01-25-11 -- The Supreme Court yesterday reinstated a $625,000 judgment against Ohio prison officials who did nothing to prevent a guard’s sexual assault of an inmate and then punished the victim. . . . The justices unanimously agreed that a federal appeals court was wrong to throw out the award to Michelle Ortiz. Justice Ruth Bader Ginsburg said the US Court of Appeals for the Sixth Circuit in Cincinnati had “no warrant’’ to override the jury’s verdict. . . . Ortiz was serving 12 months at the Ohio Reformatory for Women in November 2002 when she reported that a male guard fondled her breasts and warned, “I’ll get you tomorrow, watch.’’ He did, returning when Ortiz was asleep to molest her. . . . When Ortiz discussed the attacks with other inmates, she was shackled and sent to solitary confinement.

Is There a Right of Informational Privacy? Supreme Court Avoids the Issue in NASA Opinion

By Debra Cassens Weiss, ABA Journal

01-19-11 -- The U.S. Supreme Court has upheld background checks for NASA employees, but its opinion didn’t decide whether the Constitution protects a “right of informational privacy.” . . . The background checks are reasonable, employment-related inquiries, Justice Samuel A. Alito Jr. wrote in his opinion (PDF) for the court. . . . The 28 NASA workers challenging the background checks said the government had sought information about subjects ranging from their finances to their sex lives. Reuters has coverage of today's opinion. . . . “We assume, without deciding, that the Constitution protects a privacy right of the sort” mentioned in two 1977 Supreme Court decisions, Alito wrote. “We hold, however, that the challenged portions of the government’s background check do not violate this right in the present case.” . . . The decision was 8-0, with a concurrence written by Justice Antonin Scalia and joined by Justice Clarence Thomas, SCOTUSblog reports. The concurrence argued there is no informational right to privacy.

Supreme Court Hits 9th Circuit in Pair of Opinions Upholding Defense Lawyer Decisions

By Debra Cassens Weiss, ABA Journal

In a case from Oregon and another from California, the U.S. Supreme Court has ruled that criminal defense lawyers provided adequate assistance of counsel and that their onetime clients were not eligible for habeas relief. . . . Justice Anthony M. Kennedy wrote both opinions overturning decisions by the San Francisco-based 9th U.S. Circuit Court of Appeals. His opinion (PDF) in the California case, Harrington v. Richter, opens with a criticism of the federal appeals court. . . . “The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law. Judges must be vigilant and independent in reviewing petitions for the writ, a commitment that entails substantial judicial resources,” Kennedy wrote. “Those resources are diminished and misspent, however, and confidence in the writ and the law it vindicates undermined, if there is judicial disregard for the sound and established principles that inform its proper issuance. That judicial disregard is inherent in the opinion of the Court of Appeals for the 9th Circuit here under review.”

Court: Lawyer's work for murder client good enough

The Associated Press, Seattle Times 

01-19-11 -- The Supreme Court says a convicted murderer was not harmed by his lawyer's failure to pursue a forensic examination of a pool of blood at the crime scene. . . . The high court on Wednesday said the lawyer was not incompetent for using a strategy that did not include blood evidence. . . . Joshua Richter was convicted of killing Patrick Klein by shooting him during a robbery at Klein's house in Sacramento County, Calif. His lawyer did not ask for a forensic test of blood on the floor at Klein's apartment. . . . Richter said the pool of blood could have proved that Klein was killed in crossfire, instead of shot while sleeping on a couch.

US Supreme Court Questions Barring Of Suit Over Bayer Cholesterol Drug

By Brent Kendall of Dow Jones Newswires, Wall Street Journal 

01-19-11 -- The U.S. Supreme Court on Tuesday questioned a federal judge's decision to bar a group of West Virginia plaintiffs from proceeding with a class-action lawsuit over Bayer AG's (BAYRY, BAYN.XE) cholesterol-lowering drug Baycol, which was withdrawn from the U.S. market in 2001. . . . The West Virginia plaintiffs were seeking to sue Bayer for economic losses, arguing they paid for a drug that turned out to be inferior. . . . A Minnesota-based federal judge, who has overseen thousands of Baycol lawsuits from around the country that were consolidated in his court, issued an injunction in 2008 that barred the West Virginia state-court case from proceeding. . . . U.S. Chief District Court Judge Michael Davis said the class-action lawsuit couldn't be considered by West Virginia's courts because he had already ruled that a different group of West Virginia plaintiffs, making similar claims, didn't meet the standards for allowing the case to proceed as a class-action. . . . Class-action lawsuits allow plaintiffs to pool their smaller individual claims into one large lawsuit. . . . Baycol was on the U.S. market from 1997 until 2001. The drug was withdrawn after it was linked to 31 deaths. Bayer says it has paid $1.17 billion to resolve claims from users who allegedly suffered serious side effects.

Broken-down-door policing

Los Angeles Times Editorial 

01-17-11 -- A Kentucky marijuana arrest presents a troubling threat to Americans' right to privacy. . . . A police officer smells what he thinks is marijuana and knocks loudly on an apartment door, shouting "This is the police!" When he hears noises that may or may not be the destruction of evidence, he breaks down the door, finds drugs and arrests the occupant — all without a search warrant. That occurred in Kentucky in 2005, and last week the Supreme Court was asked to overturn a lower court and rule that it was constitutional. It should decline the invitation. . . . The legal issue in the case is technical, but the implications for personal privacy are not small. If the court rules for the state, it will approve a significant new loophole in the requirement that police obtain a warrant before searching a home. . . . The narrow question before the court is whether — or when — police may take advantage of "exigent circumstances" that they create themselves. Exigent circumstances are conditions — imminent danger, the possibility that a suspect will escape or concern about the immediate destruction of evidence — that allow police to conduct a search without a warrant.

Kagan delivers her first judicial opinion, in bankruptcy case

By Robert Barnes, Washington Post Staff Writer
01-12-11 -- The Supreme Court audience perked up Tuesday when Chief Justice John G. Roberts Jr. announced that Justice Elena Kagan would deliver the first judicial opinion of her career. . . . "This case," she said in a strong, confident voice, "is about proper interpretation of the bankruptcy code." . . . Like other rookie justices before her, Kagan drew a relatively noncontroversial decision for her maiden effort. The court ruled against a man who argued that an ambiguity in federal bankruptcy law allowed him to shield some income from creditors by claiming a monthly allowance for car payments, even though his car loan was paid off. . . . Kagan wrote a detailed, 18-page opinion that spoke for seven of her colleagues. The lone dissenter was Justice Antonin Scalia, with whom Kagan has friendly relations. He took her skeet shooting earlier in the term.

Supreme Court: Did it just hint at stance on a health-care law challenge?

The Supreme Court refused to take up a case examining Congress's authority under the commerce clause, a key issue in a legal challenge to Obama's health-care law. Two justices dissented.

By Warren Richey, Christian Science Monitor Staff writer

01-12-11 -- In a case with potential implications for legal challenges to the Obama health-care reform law, the US Supreme Court on Monday refused to examine whether Congress overstepped its authority when it made it a federal crime for a convicted felon to possess a bullet-proof vest. . . . The key question in Alderman v. US was whether there are limits to Congress’s ability under the Constitution’s commerce clause to outlaw a local, intrastate activity like wearing body armor. . . . Legal challenges to the health-care reform act are asking the judiciary to enforce strict limits on Congress’s commerce clause power. At issue in those challenges is whether Congress has the power under the commerce clause to require every American to purchase a government-approved level of health

Drug company's argument may not pass smell test with justices

Tony Mauro, The National Law Journal 

01-10-11 -- One sign that Jon Hacker was in hot water before the Supreme Court came early on Monday, when Justice Antonin Scalia called his client's cold medication "zircon," instead of Zicam. . . . Zircon is a faux diamond, probably not the best reference when the issue before the Court in Matrixx Initiatives v. Siracusano was securities fraud, and Hacker was representing the alleged fraudster. . . . Matrixx's lawyer Hacker, a partner at O'Melveny & Myers and Supreme Court expert, was making his first argument at the Court. He was passionate in insisting that Matrixx was not committing fraud when it failed to disclose a handful of cases in which users of Zicam, an over-the-counter cold medication, reported they lost their sense of smell. Plaintiffs need to show a statistically significant number of adverse reports before they can go ahead with a securities fraud class action, Hacker said.

December 2010

Supreme Court Tosses Suit Claiming US House Isn’t Big Enough

By Debra Cassens Weiss, ABA Journal

12-13-10 -- The U.S. Supreme Court has ordered dismissal of a lawsuit that claims the U.S. House of Representatives should be larger. . . . In a summary disposition (PDF), the court vacated a federal ruling and ordered the suit dismissed for lack of jurisdiction, SCOTUSblog reports. . . . A special three-judge panel had upheld the current system in a decision (PDF) last July, USA Today reported in a profile of the case. But the U.S. Supreme Court found that the case should not have been decided on the merits. . . . The House has had 435 seats for the last 100 years. Each state gets at least one representative, and the rest of the seats are apportioned based on population.

SCOTUS Gives Nod to 2nd Circuit OK of ‘Heavy Hitters’ Law Firm Slogan & Descriptive Trade Names
By Martha Neil. ABA Journal

12-13-10 -- By refusing to hear an appeal of a 2nd Circuit decision earlier this year, the U.S. Supreme Court has apparently turned a friendly eye on the use of law firm slogans and descriptive trade names that include a bit of chest-beating, according to the Associated Press. . . . Although it is potentially possible that nicknames such as the "heavy hitters" slogan that law firm Alexander & Catalano had been using in its television advertising could mislead, there was no showing that they had, in fact, done so. And, even if there was a need for clarification to prevent misunderstanding, that need could be addressed by disclaimers or other methods less chilling on lawyers' constitutional right to free speech than a blanket ban on the use of descriptive terms, held the 2nd U.S. Circuit Court of Appeals in its March 12 ruling (PDF).

Court considers whether fiances included in law protecting those who complain about employers

By Robert Barnes, Washington Post Staff Writer   

12-07-10 -- Eric Thompson thinks his firing was more than coincidence: Three weeks after his fiancee filed a discrimination complaint against their mutual employer, he got a pink slip. . . . If it had been Miriam Regalado - his fiancee and now wife - who had been fired, she would have been protected by federal laws that keep employers from dismissing workers who allege illegal actions. . . . But what about Thompson? . . . That was the question before the Supreme Court on Tuesday, and justices seemed to think it defied an easy answer. . . . Thompson complained about his 2003 firing to the Equal Employment Opportunity Commission, which gave him the go-ahead to file suit against his former employer, North American Stainless, contending that he too was protected by Title VII of the Civil Rights Act of 1964.

High court to hear Wal-Mart's appeal in sex bias suit

By Joan Biskupic, USA TODAY

12-06-10 -- The Supreme Court announced Monday it will hear Wal-Mart's appeal in a civil rights class-action lawsuit brought on behalf of hundreds of thousands of female workers at the nation's largest retailer. . . . The Wal-Mart (WMT) dispute immediately becomes one of the most important cases of the term and triggers a new high-court clash between corporate interests and workers' rights. Nine sets of business groups and big corporations, including the Chamber of Commerce, urged the justices to hear Wal-Mart's appeal. . . . "We welcome the Supreme Court's limited review of the class certification decision in this case. As that decision was based on a vast body of evidence, we are confident that the decision to certify the class was sound," said plaintiffs' lead co-counsel Joseph Sellers.

Supreme Court to Consider Impact of Blown Deadline by Schizophrenic Veteran

By Debra Cassens Weiss, ABA Journal

12-06-10 -- A Korean War veteran with paranoid schizophrenia died less than two months before oral arguments in his case before the U.S. Supreme Court, but today the justices will consider the legal issues anyway. . . . The court will consider whether a blown deadline bars the disability benefits appeal by veteran David Henderson, who died Oct. 24 at the age of 81. Henderson’s wife, Doretha, is being allowed to pursue the case since she may be entitled to accrued benefits, according to the blog Washington Briefs. USA Today has a preview of the case, Henderson v. Shineski.

November 2010

Court says county doesn't have to pay for mistake

Associated Press, Fox News

11-30-10 -- The Supreme Court ruled unanimously Tuesday that Los Angeles County does not have to pay attorney fees to a couple listed as child abusers even though they were declared innocent years ago. . . . Craig and Wendy Humphries were arrested by sheriff's deputies nine years ago after their rebellious daughter accused them of abuse. State courts ruled the allegation was false but they remain on California's Child Abuse Central Index. . . . In 2008, the 9th U.S. Circuit Court of Appeals in San Francisco found the system unconstitutional because there's no way for the innocent to clear their names. It ordered the state to come up with a new system and the county to pay $60,000 in attorney fees to the Humphries. . . . The high court reversed and remanded that decision, saying Los Angeles County does not have to pay. . . . Los Angeles County argued that it could only be held liable and pay damages if a county policy or custom caused a violation of a constitutional right under a 1978 Supreme Court decision in Monell v. New York City Department of Social Services.

Music File-Sharing Award Left Intact by High Court

By Greg Stohr, -Bloomberg   

11-29-10 -- The U.S. Supreme Court refused to question a $27,750 award to music companies in a suit against a woman who was 16 when she illegally downloaded 37 songs using a file-sharing network. . . . The suit against Whitney Harper of San Antonio was one of more than 30,000 filed by the recording industry against alleged copyright infringers from 2003 to 2008. Most of the cases led to settlements, and Harper’s was one of only a handful still being fought in court. . . . In her Supreme Court appeal, Harper sought to reinstate a trial judge’s conclusion that she was an “innocent infringer” who should have to pay only $200 per song, rather than the $750 minimum that would otherwise apply under federal copyright law.

Justices turn aside another challenge over Obama's citizenship

By Bill Mears, CNN Supreme Court Producer

11-29-10 -- The Supreme Court has again cast aside an appeal that raised doubts about President Barack Obama's U.S. citizenship, a grass-roots legal issue that has gained little legal or political footing, but continues to persist in the courts. . . . The justices without comment Monday rejected a challenge from Charles Kerchner Jr., a Pennsylvania man who sought a trial in federal court forcing the president to produce documents regarding his birth and citizenship. . . . Kerchner's attorney, Mario Apuzzo, had argued in a petition with the Supreme Court that Obama did not fit the definition of a "natural-born citizen" required for the nation's highest office, as defined by Article II, Section 1 of the Constitution. . . . That clause states, "No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States."

Case of Murdered Police Officer Going to Supreme Court

The U. S. Supreme Court has agreed to hear appeal of Charles Andrew Fowler, who is serving a life sentence for murder.

By Jason Geary, The Ledger of Lakeland, Florida

11-28-10 -- The United States Supreme Court has agreed to review a narrow legal question in the fatal shooting of Haines City police Officer Christopher Todd Horner. . . . Charles Andrew Fowler is serving a life sentence and a consecutive 10 years in prison for charges stemming from the officer's death. . . . Horner's body was discovered March 3, 1998, inside Oakland Cemetery in Haines City. He had been shot behind the left ear with his own handgun, which was found underneath his body. . . . Horner, 35, was a rookie police officer and father of six children. . . . For years, the officer's death went unsolved with some speculating that he might have committed suicide.

U.S. Supreme Court to ponder Iowa drug sentence

By Lee Rood • Des Moines Register

11-28-10 -- Two Iowa defense lawyers will take an Iowa case before the U.S. Supreme Court next week that could change how federal judges resentence convicts after appeals. . . . At issue is whether judges can consider a convict's efforts at rehabilitation while his case is on appeal. . . . The Iowa case embodies fundamental questions about fairness and second chances. Should society reward a convict for working to better himself when freed during an appeal? Or would that be unfair because no such consideration is possible for the initial sentence? . . . The case involves Jason Pepper, now 31, who was arrested seven years ago in Akron, Ia., on drug charges. He later pleaded guilty. He served his prison sentence and was released. But prosecutors repeatedly appealed his sentence, claiming it was too light. . . . Today, Pepper is 31. He is married, he has a job, and he has a child on the way. But if the Supreme Court rules against him, he could be headed back behind bars.

California prison case reaches U.S. Supreme Court

By Howard Mintz, mercurynews.com  

11-28-10 -- For decades, California's Legislature, governors and a parade of experts in managing state prisons have been unable to fix the state's overgrown, bloated prison system. Now the U.S. Supreme Court must decide whether three federal judges have the power to do the fixing for them. . . . In arguments set for Tuesday, the nation's high court will review a federal court's unprecedented ruling last year that required the state to shed nearly 40,000 inmates from its 33 prisons to relieve an overcrowding problem deemed so severe that it violates the constitutional ban on cruel and unusual punishment. . . . The Schwarzenegger administration appealed the ruling, setting up the final showdown in a long-running legal battle triggered by allegations that the overstuffed prisons are depriving inmates of adequate medical and mental health care. Conditions were deemed so bad that one of the federal judges found inmates were "dying needlessly" on a regular basis.

U.S. Supreme Court hears California death penalty appeal

The case of Scott Pinholster, convicted in 1984 of stabbing two men to death, raises a key legal question: Can new evidence be used in federal court to upset a state conviction?

By David G. Savage, Los Angeles Times 

11-14-10 -- The Supreme Court last week heard an appeal from a San Fernando Valley murderer that helps explain why death penalty cases in California are so prolonged. . . . But if state prosecutors have their way, many of them could be shortened in the future. . . . It is the latest chapter in a long-running dispute between state and federal judges over the death penalty. And the case of Scott Pinholster raises a potentially crucial issue with national impact: Can new evidence be used in federal court to upset an old and long-settled state court conviction? . . . "It would be a dramatic change in the law" if the high court adopts California's no-new-evidence rule, said Sean Kennedy, a federal public defender in Los Angeles who represented Pinholster. He said it would be unfair and illogical to bar federal judges from ever considering powerful evidence that was overlooked or ignored in the state courts.

Veteran With Case Before Supreme Court Has Died

Lawrence Hurley, "Washington Briefs" blog.

11-14-10 -- A Korean War veteran has passed away just weeks before the U.S. Supreme Court is due to hear his case. . . . David L. Henderson died on Oct. 24. He was seeking to challenge whether the 120-day time limit for a veteran to seek review of a decision denying benefits unlawfully restricts the jurisdiction of the U.S. Court of Appeals for Veterans Claims. . . . The justices are due to hear arguments in Henderson v. Shinseki on Dec. 6. . . . Henderson’s attorney, Lisa Blatt of Arnold & Porter, has filed a motion seeking to substitute Henderson’s widow, Doretha, for her late husband, on the grounds that she would be entitled to accrued benefits.

(For more on the background to the case, see this New York Times story)

Supreme Court won't halt enforcement of
'don't ask, don't tell' policy

The justices' denial of an appeal by the Log Cabin Republicans means it will be a year or two before the policy's constitutionality can be finally resolved. Congress could repeal the policy, but Senate Republicans have blocked the issue from coming to a vote.

By David Savage, Los Angeles Times

11-12-10 -- The Supreme Court refused Friday to halt enforcement of the military's "don't ask, don't tell" policy while the constitutionality of the policy is under appeal in federal court in California. . . . The justices, in a brief order, denied an appeal filed by the Log Cabin Republicans, who insisted that the ban on openly gay service members is unconstitutional and should be ended immediately. . . . The high court noted that Justice Elena Kagan did not participate in the decision. There were no dissents. . . . The court's refusal to take up the issue now means it will be a year or two at least before the constitutional challenge can be finally resolved. Congress could vote to repeal the "don't ask" law in the lame duck session, but Senate Republicans have so far blocked the issue from coming to a vote. . . . Six years ago, the Log Cabin Republicans, a gay and lesbian political group, sued and contended the policy was unfair to gays who wanted to serve in the military, and was also harmful to the military, which had lost the service of thousands of qualified officers. In September, U.S. District Judge Virginia Phillips agreed and ruled the policy unconstitutional.

Supreme Court considers gender discrimination in citizenship cases

By Robert Barnes, Washington Post Staff Writer   

11-10-10 -- A majority of Supreme Court justices may be bothered by an immigration law that treats American fathers differently than American mothers. But it seemed unlikely after an hour-long oral argument Wednesday that a majority of justices thought they could do anything about it. . . . The court was considering a challenge to a federal statute that makes it easier for unmarried mothers than unmarried fathers to convey American citizenship to children born outside the country. . . . Ruben Flores-Villar, who was born in Mexico but raised by his father in San Diego, says he is a victim of the double-standard. Fighting criminal charges, Flores-Villar, now 36, was denied citizenship and deported because his father did not meet the requirements of the law. . . . But conservative justices told Flores-Villar's attorney Steven F. Hubachek that granting citizenship to someone born outside the United States is a power that belongs to Congress, not the court.

Supreme Court hears Costco case over Swatch sales

By Greg Stohr, Washington Post

11-08-10 -- The U.S. Supreme Court grappled on Monday with a case that will shape the future of the multibillion-dollar "gray market," which retailers including Costco Wholesale use to sell foreign-made products at a discount in U.S. stores. . . . During oral arguments, the justices debated whether Swatch Group's Omega unit can use a copyrighted logo on its Swiss-made watches to block Costco from selling them in U.S. stores. . . . Costco is asking the high court to extend a 1998 ruling that limited the ability of manufacturers to block the importation of goods originally sold overseas into the United States. That ruling said that if a copyright owner sells domestically made products abroad, it can't bar them from later being imported back into the United States. . . . The question in the latest case is whether U.S. copyright law imposes a similar rule on goods made overseas. The high court on Monday didn't clearly indicate how it would rule, though some of the justices voiced concern about giving manufacturers an incentive to make their products overseas.

Supreme Court case could end class-action suits

Brian T. Fitzpatrick, San Francisco Chronicle

Brian T. Fitzpatrick is an associate professor of law at Vanderbilt Law School and a visiting professor of law at Fordham Law School, where he studies class action litigation. He previously served as a law clerk to the U.S. Supreme Court.

11-07-10 -- The Supreme Court began a new term last month, and, as usual, its docket is filled with high-profile cases. Sometimes, however, the cases that are the most important keep the lowest profiles. That's true this term. This week, the court will hear what could be its most important case in years, and I'll bet you have never even heard of it. . . .The case is AT&T Mobility Services vs. Concepcion. If the case is decided the way many observers predict, it could end class-action litigation in America as we know it. . . . Vincent and Liza Concepcion sued AT&T for deceptive practices because it advertised discounted cellular phones while charging sales tax on the full retail price. In light of the small amount of money at stake per phone ($30), it made no sense for the Concepcions (or their lawyer) to sue alone; thus, they sued on behalf of a class of other purchasers. . . . But the contract the Concepcions signed with AT&T required any claim to be resolved through arbitration. Moreover, the contract said the arbitration could not proceed as a class action. In other words, AT&T had tried to exempt itself from class action proceedings.

Violent video games, justice by justice

Tony Mauro, First Amendment Center legal correspondent

11-08-10 -- To an unusual degree, the Supreme Court oral arguments last week in Schwarzenegger v. Entertainment Merchants Association turned out to be something of a Rorschach test that showed which way the justices were leaning. . . . As the justices looked at California's law banning the sale and rental of violent video games to minors, did they see a bite being taken out of the First Amendment, complete with censorship boards rejecting video games now and Romeo and Juliet next? Or did they see a common-sense effort to shield minors from a segment of a new medium whose redeeming value is dubious and whose harm is plausible? . . . Here is a brief look at how each justice appears to be appraising the law. . . . Surprisingly or not, Justice Antonin Scalia led the charge against the California law, asking the first skeptical question of California Deputy Attorney General Zackery Morazzini as soon as Morazzini said the state's law restricted the sale to minors of "deviant, violent video games." / Audio of Supreme Court oral arguments

Supreme Court justices show refreshing gaming knowledge

Mike Luttrell, TG Daily

11-03-10 -- The landmark trial opened yesterday between California and the Entertainment Merchants Association over a reckless state law that would put new restrictions on retailers selling violent video games. The Supreme Court showed just how blatantly silly the law was by pointing out a whole bunch of loopholes and rhetorical questions. . . . While everyone was going to the polls and voting in the midterm election yesterday, members of the Supreme Court were also already trying to figure out how they will vote in the California case. . . . Based on comments made in just this very first day of the hearing, it seems like the justices are all set to dismiss the case. Many of them have already heard this kind of thing before. There is certainly no shortage of Supreme Court cases on video game violence. With those cases, there is a 100% track record of the video game industry winning. No one has ever managed to put some sort of government-enforced control on violent or obscene video games. No one.

US Supreme Court takes up violent video game ban

Bob Egelko, Chronicle Staff Writer

11-02-10 -- When California defends its ban on selling ultra-violent video games to minors before the Supreme Court today, it will ask the justices to do something no U.S. court has ever done: exempt a type of violent content from the First Amendment's protection of free expression. . . . The law, blocked by court orders since Gov. Arnold Schwarzenegger signed it in 2005, would prohibit the sale to anyone younger than 18 of a video game that was so violent, it was "patently offensive" under prevailing community standards for minors. Prosecutors would also have to show that the game lacked serious literary, artistic, political or scientific value. . . . Like every other court that has considered such a law, the federal appeals court in San Francisco declared the California ban unconstitutional in February 2009. "The government may not restrict speech in order to control a minor's thoughts," the three-judge panel said.

Court to Weigh Legal Aid in Contempt Cases

By Adam Liptak, New York Times  

11-01-10 -- The Supreme Court agreed on Monday to decide whether poor people who face incarceration for civil contempt are entitled to court-appointed lawyers. . . . In a series of decisions starting with Gideon v. Wainwright in 1963, the Supreme Court has held that poor people facing the loss of liberty for crimes must be provided with lawyers. The question in the new case, Turner v. Price, No. 10-10, is whether that right also applies where incarceration is meant to be coercive rather than punitive. . . . The South Carolina Supreme Court ruled in March that Michael D. Turner, who was held in civil contempt and sentenced to a year in prison for failing to pay child support, had no constitutional right to a lawyer. The point of the sentence was to make Mr. Turner pay rather than to punish him, the court said. . . . Someone imprisoned for civil contempt, the court continued, “is said to hold the keys to his cell because he may end the imprisonment and purge himself of the sentence at any time by doing the act he had previously refused to do.”

Supreme Court to Decide Teen’s Right to Miranda Warning During School Questioning

By Debra Cassens Weiss, ABA Journal

11-01-10 -- The U.S. Supreme Court has agreed to decide whether a 13-year-old special education student questioned by a police officer at middle school had the right to a Miranda warning. . . . The case is the second this term involving the rights of youths facing police questioning, SCOTUSblog reports. The case accepted today is J.D. B. v. North Carolina.

Supreme Court Turns Down Patriot Act Challenge by Wrongly Accused Lawyer

By Debra Cassens Weiss,  ABA Journal

11-01-10 -- The U.S. Supreme Court has refused a challenge to the Patriot Act by a lawyer who was wrongly accused in an international terrorism case. . . . The court denied cert in the appeal by Oregon lawyer Brandon Mayfield, the Associated Press reports. The action lets stand a decision by the 9th U.S. Circuit Court of Appeals that rejected Mayfield’s suit on standing grounds.

October 2010

High Court to Decide Whether Ashcroft Can Be Sued for 9/11 Policy

Mark Sherman, The Associated Press, Law.com

10-19-10 -- The U.S. Supreme Court will decide whether an American Muslim can sue a former top Bush administration official who he says was responsible for his improper arrest after the Sept. 11, 2001, terrorist attacks. . . . The arrest of Abdullah al-Kidd and dozens of other Muslims and Arabs without evidence of crimes was part of the Bush administration's aggressive response to the Sept. 11 attacks against the United States. The fear-filled period that followed the attacks has ended up spawning lawsuits, including the one al-Kidd has brought against an ex-administration official, former Attorney General John Ashcroft. . . . Al-Kidd was arrested at Dulles International Airport outside Washington in 2003, preparing to board a flight to Saudi Arabia. FBI Director Robert Mueller boasted in congressional testimony that al-Kidd's arrest was one of five major anti-terrorism coups for the agency, including the arrest of alleged Sept. 11 mastermind Khalid Shaikh Mohammed.

Death, DNA and the Supreme Court

The New York Times Editorial 

10-18-10 -- In an age when DNA technology can help identify the guilty and avoid grave miscarriages of justice, states should not be allowed to block testing of available biological evidence before executing someone. . . . The Supreme Court heard arguments on Wednesday over a request by Henry Skinner, a Texas death row inmate, for DNA testing of blood, fingernail scrapings and hair found at the scene where his girlfriend and her two sons were murdered in 1993. In March, less than an hour before he was scheduled to die by lethal injection, the Supreme Court granted a stay of execution to consider taking up the matter of the untested evidence.

U.S. Supreme Court Faces Word Puzzle in Job Bias Case

Marcia Coyle, The National Law Journal

10-14-10 -- The Supreme Court on Wednesday wrestled with the meaning of the word "file" in a job retaliation case with potentially huge ramifications for workers who allege wage-and-hour violations by their employers. . . . Kevin Kasten sued his former employer, Saint-Gobain Performance Plastics Corp., alleging that it fired him in retaliation for a series of verbal complaints about the illegal location of time clocks in his factory. A federal district court and the 7th U.S. Circuit Court of Appeals ruled against him, holding that the anti-retaliation provision in the Fair Labor Standards Act protects internal complaints only if they are written. . . . At the core of Kasten v. Saint-Gobain Performance Plastics is language in the act's anti-retaliation provision stating that an employee who "file(s) any complaint" is engaged in protected activity. . . . "I'm looking at the words of the statute," James Kaster of Minneapolis' Nichols Kaster told the justices. "The words in the statute were designed to have a broad construction. Filing includes an oral communication. The word 'any' means any."

Gore vs. the Supreme Court: The justices and the 'CSI effect'

By Dana Milbank, The Washington Post

10-13-10 -- In the criminal justice system, the people are represented by two separate yet equally important groups: the police, who investigate crime; and the district attorneys, who prosecute the offenders. . . . These are their stories -- as acted out by the justices of the Supreme Court. . . . Ostensibly, the robed ones of the High Court were hearing a habeas corpus case Tuesday morning, exploring the finer points of the right to effective counsel. In practice, they cared more about corpus than habeas; the oral argument could have served as a pilot for "Law & Order: SCOTUS Unit." . . . "If someone were moved from the bed, taken to the living room couch, you would have expected to see a trail of blood from the bed, and there wasn't that," said Justice Ruth Ginsburg. . . . Chief Justice John Roberts asked whether "he could have dragged him from the pool to the couch because there were drops along the way."

U.S. Supreme Court to hear Oneida Indian Nation foreclosure case

By Bryon Ackerman, Observer-Dispatch

10-12-10 -- The U.S. Supreme Court decided Tuesday to hear the case in which Oneida and Madison counties are attempting to foreclose on Oneida Indian Nation-owned properties on which taxes haven’t been paid. . . . On April 27, a three-member panel of the U.S. Second Circuit Court of Appeals upheld a lower-court decision that said the counties could not foreclose on the properties because the Oneidas are protected by sovereign immunity. . . . Now, the U.S. Supreme Court has decided to hear arguments in the case sometime between January and April, according to the Supreme Court public information office. . . . Oneida County Executive Anthony Picente said he considers it good news because the issue will be resolved, but there still is uncertainty about how the Supreme Court will rule and what would happen next.

High Court Seems Reluctant to Overturn First Amendment Precedents in Funeral Protest Case

Tony Mauro, The National Law Journal

10-07-10 -- While expressing disdain for the virulent protests staged at military funerals by members of a Kansas church, some Supreme Court justices on Wednesday seemed reluctant to upset First Amendment precedents that protect even the most obnoxious speech from punishment. . . . The Court heard arguments in Snyder v. Phelps, which asks whether the First Amendment allows the family of Marine Lance Cpl. Matthew Snyder, killed in Iraq in 2006, to recover damages for intrusion upon seclusion and intentional infliction of emotional distress from members of the Westboro Baptist Church. . . . The church members, many from the family of pastor Fred Phelps, demonstrate at funerals and other events to promote their message that God is punishing America for its acceptance of homosexuality. Their signs at the Maryland funeral for Snyder read, "Thank God for Dead Soldiers," and "God Hates You" among other messages. The protests have triggered lawsuits and legislation in 43 states to restrict funeral protests.

Justices Appear Ready to Hold New Orleans Prosecutors Liable for Misconduct

Tony Mauro, The National Law Journal

10-07-10 -- Supreme Court justices on Wednesday appeared ready to give the green light to efforts by a New Orleans man to win compensation for prosecutorial misconduct that put him behind bars for more than two decades for a murder he did not commit. . . . The Court heard arguments in the case of Connick v. Thompson in which former New Orleans District Attorney Harry Connick maintains that his office should not be held liable for what he contends was a single incident of failing to hand over exculpatory evidence to the defense before trial. . . . Louisiana appellate chief Stuart Duncan, arguing against liability, acknowledged that defendant John Thompson has suffered "terrible injuries" because of the actions of a lawyer in the prosecutor's office, but insisted that Supreme Court precedent does not allow Thompson to recover damages in a civil rights suit when no pattern of misconduct has been shown.

Prosecuting offices' immunity tested

Supreme Court set to hear a case that considers whether prosecutors' employers can be held accountable for not preventing misconduct

By Brad Heath and Kevin McCoy, USA TODAY

10-06-10 -- Americans can sue almost anyone for almost anything. But they can't sue prosecutors. . . . Not when prosecutors hide evidence that could prove someone's innocence. Not when they violate basic rules designed to make sure trials are fair. Not even when those abuses put innocent people in prison. . . . Nearly 35 years ago, the U.S. Supreme Court ruled that prosecutors cannot face civil lawsuits over how they handle criminal cases in court, no matter how serious or obvious the abuses. Since then, courts have further limited the circumstances under which prosecutors — or their bosses — can be sued for civil rights violations. . . . Today, in a case involving a New Orleans man who came within a month of being executed for a murder he didn't commit, the Supreme Court is scheduled to consider another aspect of prosecutorial immunity: whether people who were wrongly convicted can take local prosecutors' offices to court. The court's answer could determine the extent to which prosecutors' employers are also shielded if they fail to make sure attorneys comply with their constitutional responsibilities.

Justices Consider Limits on Employer Background Checks in NASA Case

Marcia Coyle, The National Law Journal

10-06-10 -- Lawyers for the federal government clashed with lawyers for a group of California scientists at the U.S. Supreme Court on Tuesday over how much information the government can demand in background checks on potential employees before violating their privacy rights. . . . And the justices themselves appeared to have conflicting concerns about background investigations. "Are there any limits on what the government can ask?" Justice Sonia Sotomayor pressed Acting Solicitor General Neal Katyal shortly after he opened his argument in National Aeronautics and Space Administration v. Nelson. Can the government ask someone about his genetic makeup because "we don't want someone prone to cancer?" she added.

On the High Court's Fall Docket, Few Blockbusters -- but Plenty to Watch

Marcia Coyle, The National Law Journal 

10-04-10 -- The Supreme Court's fall term opens today with a historic first -- three women on the bench -- but as yet, few blockbuster challenges have appeared on the docket. . . . Court Kremlinologists, however, have plenty to watch. It's the second term in a row where they will be closely examining a new justice for clues on how she will approach cases -- last time, it was Justice Sonia Sotomayor; this time, it's Justice Elena Kagan. . . . With Kagan, however, they may find few clues right away: "The idea that by early November we'll know the impact she will have is unrealistic," said Clifford Sloan, partner in Skadden, Arps, Slate Meagher & Flom, who noted that it is several years before a justice is fully acclimated to the Court.

Funeral protests could upend common view of free speech

As the Supreme Court starts a new term, justices will decided whether hurtful words aimed at the grieving families of dead U.S. troops are protected by the 1st Amendment.

By David G. Savage, Tribune Washington Bureau

10-04-10 -- More than 500 mourners walked quietly through rows of flags and into a white chapel on a recent Saturday afternoon to honor a dead soldier. . . . Army Lt. Todd Weaver was remembered as a scholar, athlete and born leader. He served in Iraq after high school, graduated Phi Beta Kappa from the College of William and Mary two years ago and was killed by a roadside bomb in Afghanistan on Sept. 9. He left behind a wife and a 1-year-old daughter. . . . But before entering the church parking lot, the mourners drove past an unusual demonstration. Scores of flag-waving bikers and students stood near the corner, surrounding three women holding brightly colored signs. They read: "Thank God for Dead Soldiers," "God Hates Fags" and "You're Going to Hell."

September 2010

Chief Justice to Hear Pfizer Cases After Selling Company's Stock

Mark Sherman, The Associated Press, Law.com

09-30-10 -- Chief Justice John Roberts has sold his shares of Pfizer Inc., a move that allows him to participate in two pending Supreme Court cases involving the pharmaceutical maker. . . . Federal law requires judges to sit out cases if they own even a single share of stock in any of the parties to a lawsuit. In the past, Roberts has not taken part in cases involving Pfizer because he owned less than $15,000 of the company's stock, according to his latest report of personal finances, which covered 2009. . . . But when the court announced Tuesday that it had accepted an appeal from several drug makers, including Pfizer, in a dispute over prices charged public hospitals, there was no indication that Roberts would step aside from hearing the case.

Senate Responds to High Court Ruling on 'Crush Videos'

Marcia Coyle, The National Law Journal

09-30-10 -- The first bill signed into law by President Barack Obama in the new 111th Congress in 2009 undid the Supreme Court's ruling in a pay discrimination challenge involving Lilly Ledbetter. The last bill signed by the president in this congressional session may be a response to another ruling by the justices. . . . Congress spent roughly 16 months fighting over the Lilly Ledbetter Fair Pay Act of 2009. But it has taken only six months to move legislation through both houses to address the First Amendment implications of banning animal "crush videos."

Supreme Court Grants 14 New Cases,
With Kagan Recused in 4

Tony Mauro, The National Law Journal

09-29-10 -- The Supreme Court on Tuesday granted review in 14 new cases to be argued in its new term, adding to the 40 it had granted before it recessed for the summer. The order list (pdf) is the product of the Court's so-called "long conference" Monday at which, in private, it considered the thousands of petitions that have piled up during the summer recess. It was Justice Elena Kagan's first such conference, and as junior justice it would have been her responsibility to report to the Court clerk all the cases the Court agreed to hear. . . . The list also indicated that Kagan has decided to recuse in four of the new cases, presumably because of her role at earlier stages as solicitor general. That makes for a total of 25 cases out of the 54 the Court has granted so far in which Kagan will not participate. The new cases in which she has recused are: Astra USA Inc. v. Santa Clara County, a dispute between public hospitals and drug companies; FCC v. AT&T, which asks whether corporate "personhood" extends to the Freedom of Information Act which exempts the release of government documents that invade "personal privacy" (we wrote about the case here); United States v. Tinklenberg, a Speedy Trial Act case; and Schindler Elevator Corp. v. United States, a False Claims Act case.

Supreme Court Will Release Argument Audio on Delayed Basis

Tony Mauro, The National Law Journal

09-29-10 -- The Supreme Court announced Tuesday that, starting next week, it will post the audio of all its oral arguments on the Friday after they occur. Since the Court only hears arguments on Mondays, Tuesdays and Wednesdays, that means the release will be several days after the fact, making it of little use for contemporary reports by the news media. . . . Court public information officer Kathy Arberg said Tuesday morning that the Court's goal was to "provide the audio directly to the public, free of cost, and it significantly accelerates the release." She declined to say why the Court saw fit to delay release until Fridays, a move that virtually ensures the justices' voices won't turn up in news reports except in Sunday talk shows or later when the decision is released.

High court to take case that could loosen rule on illegally seized evidence

The justices will decide Kentucky vs. King, in which police searched and took evidence from an apartment that they entered by mistake. It's among the 14 cases they will take on this term.

By David G. Savage, Tribune Washington Bureau

09-29-10 -- The Supreme Court agreed Tuesday to consider giving the police more leeway to seize criminal evidence, even when they mistakenly break into the wrong home while pursuing a suspect. . . . Kentucky vs. King was one of 14 new cases the justices said they would decide in their new term. They met Monday for the first time since June and pored over nearly 2,000 appeal petitions that had piled up over the summer. . . . In the Kentucky case, the justices will decide whether to further relax the so-called exclusionary rule, which forbids the use of illegally seized evidence. It began when police in Lexington followed a suspected drug dealer as he entered an apartment building.

Supreme Court Shows Interest in Music Download Case

Tony Mauro, The National Law Journal

09-22-10 -- The Supreme Court has asked a record company to file a brief in a case that asks the justices to weigh in on a wave of copyright lawsuits filed by the recording industry against college students and others for unpaid music downloads. . . . The case is Harper v. Maverick Recording, the first to reach the high court from the 40,000 legal actions the industry took in recent years to combat illegal downloads. The petition, which we wrote about here in our new newsletter Supreme Court Insider, asserts that the downloaders should be viewed as "innocent infringers" subject to smaller fines than record companies sought. Whitney Harper was a high school cheerleader when she was sued for downloading songs through KaZaA.

States Join Media Groups in Briefs Opposing California's Violent Video Game Ban

Tony Mauro, The National Law Journal

09-21-10 -- Nine states and Puerto Rico joined to file a brief with the Supreme Court late Friday night urging the justices not to uphold a California law that bans the sale or rental of violent video games to minors. . . . Rhode Island Attorney General Patrick Lynch, supported by lawyers from Irell & Manella in Los Angeles, submitted the brief (pdf) in the case Schwarzenegger v. Entertainment Merchants Association & Entertainment Software Association on behalf of his state and Arkansas, Georgia, Nebraska, North Dakota, Oklahoma, Puerto Rico, South Carolina, Utah and Washington. In addition to raising the "specter of censorship," the states agreed that California's law if replicated would waste scarce law enforcement resources and provide support for a Twinkie-style defense argument that "the video game made me do it" for accused criminals.

SEND NEWS RELEASES

VIA EMAIL

 

Victims-of-Law Open Discussion Click to join victimsoflaw_discuss