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National Law Journal (Subscription may be required): Squabbles between neighbors over twinkle lights. Constitutional challenges to government-sanctioned holiday displays. A fight over the sale of Christmas trees. ‘Tis the season to get litigious. The National Law Journal unwraps holiday-related legal action across the country.
SCOTUS Blog: ‘Twas the last Conference before break, when all through the land;
ADR Prof Blog: The title may be a bit misleading as it conjures images of law schools collapsing into a black hole. Actually, he argues that law-schools-as-we-know-them need to end and be transformed into “schools of legal professions” to better satisfy society’s needs.
Associated Press: No longer impeded by Republican blocking tactics, Democrats are on track to win confirmation of up to 88 of President Barack Obama’s top judicial nominations this year, a total that would be the highest for any president in two decades.
Ethics and Public Policy Center: Judge Stephen Reinhardt of the 9th U.S. Circuit Court of Appeals has long seemed to enjoy remarkable good fortune in getting assigned to sit on ideologically charged cases. Suspicions that his good fortune hasn’t been entirely due to luck were bolstered recently when the 9th Circuit revealed that its clerk’s office had had a longstanding but undisclosed practice of assigning expedited cases — which tend to be of special importance — to the calendar panel with the most senior presiding judge.
The Washington Post: We have supported clients represented by Davis Wright Tremaine; Jenner & Block; Morgan, Lewis & Bockius; Proskauer Rose; the Institute for Justice; the ACLU of Missouri; the Alliance Defending Freedom; public defenders; and others.
National Law Journal: U.S. Supreme Court justices acknowledge and generally embrace the dominance of veteran advocates in the work of the court, according to a series of stories published by Reuters Monday.
Chewing over the “power bar”: Biskupic discusses major study of the Supreme Court bar’s influence on certiorari
SCOTUS Blog: Today, Reuters released The Echo Chamber, which reports on the results of a major data-focused investigation into the certiorari docket at the Supreme Court, and the outsized success of a small set of elite lawyers in getting cases before the Court. Below, Joan Biskupic answers a few questions about the study from our contributor, Eric Citron.
Constitutional Law Prof Blog: Check out The Echo Chamber: A Small Group of Lawyers and its Outsized Influence at the U.S. Supreme Court, a penetrating study of the influence that an elite band of attorneys exerts on the cases the Court takes up, and how it decides them. Echo Chamber is a special report by Reuters, in three parts, penned by Joan Biskupic, Janet Roberts, and John Shiffman.
SCOTUS Blog: At a hearing yesterday of the House Judiciary Committee’s Subcommittee on Courts, IP and the Internet, there was strong bipartisan backing for the introduction of cameras at the Supreme Court and other federal courts. But even if the bill being discussed – H.R. 917, the Sunshine in the Courtroom Act of 2013 – makes it out of committee and becomes a law, don’t count on watching Supreme Court proceedings from the comfort of your own home anytime soon: although the bill authorizes the Chief Justice of the Supreme Court to allow the Court’s proceedings to be televised, it does not mandate cameras at the Court.
The American Interest: With some law schools experiencing enrollment drops this year of as much as 34 percent down from last year’s numbers, it was inevitable that the legal education industry would have to adapt.
Re’s Judicata: As Lyle Denniston recently explained over at SCOTUSBlog, the important affirmative action case Fisher v. University of Texas may soon be headed back to the Supreme Court. This possibility raises an interesting issue of precedent and jurisdiction. The last time that the Court heard Fisher, its published decision ignored certain jurisdictional concerns and remanded for a new merits determination. Could these concerns prove decisive in a sequel decision, or did the Court silently settle the question of jurisdiction in Fisher?
Associated Press: Two of the three women on the Supreme Court vigorously questioned a UPS lawyer Wednesday over the company’s refusal to give lighter duty to a pregnant worker, a closely watched case with potentially broad impact for female workers and their employers.
Wall Street Journal: Supreme Court Justice Antonin Scalia has been portrayed in various staged works produced in and around Washington, as Wednesday’s Journal reports. But none of his new theatrical avatars is likely to reach an audience of 10.52 million—the Nielsen-estimated audience when a character bearing his name played a key role in the 2008 final episode of ‘Boston Legal‘ alongside stars William Shatner and James Spader.
SCOTUS Blog: For nearly four decades, it has been a form of illegal discrimination in the workplace to treat women workers unequally, just because they become pregnant. But it still is not entirely clear just how much and what kind of equality that provision imposes on businesses. They clearly cannot treat pregnancy as a reason to fire a worker, or cut her pay, or to deny her health benefits. That is outright discrimination based on sex, under the Pregnancy Discrimination Act, added in 1978 to Title VII of federal civil rights law.
National Law Journal (Subscription required): The long-running debate over camera access to the U.S. Supreme Court and other federal courts will take a new turn Wednesday at a hearing scheduled before a House Judiciary subcommittee.
Time: Should a pregnant worker have the right to workplace accommodations, such as a chair to sit on as she works a cash register or more frequent bathroom breaks during her job as a call center operator?
First Things: Harper Lee, now age eighty-eight and long out of the public eye, is the legendarily mysterious author of the iconic 1961 novel of southern racial injustice, To Kill a Mockingbird. It inspired an equally beloved film with Gregory Peck as heroic small town lawyer Atticus Finch, who defends an innocent black man accused of raping a white woman.
Reuters: The U.S. Supreme Court appeared conflicted on Monday over whether to uphold the conviction of a Pennsylvania man found guilty of making threatening statements to his estranged wife, law enforcement officers and others on social media.
Verdict Justia: When a three-judge panel of the Ninth Circuit invalidated state bans on same-sex marriage in Idaho and Nevada in October 2014, the panel included both Judge Stephen Reinhardt and Judge Marsha S. Berzon. Since 2010, the Ninth Circuit has heard 11 gay rights cases. Judge Reinhardt was on the panel in four of them while Judge Berzon was on five. Eighteen of the court’s active judges served on no same-sex marriage case. How likely are these panels the product of chance?
The Washington Post: Justice Ruth Bader Ginsburg was back on the Supreme Court bench Monday morning, five days after she had a stent placed in her right coronary artery .
Prawfs Blawg: I’m looking forward to the Supreme Court’s ruling in Elonis v. United States, though I suspect that the Court will not address my primary raison d’excitation.
USA Today: When the Supreme Court comes face to face Monday with a free speech case involving threats made on Facebook, Paulette Sullivan Moore and Francis Schmidt will have decidedly different reactions.
National Law Journal (Subscription Required): U.S. Supreme Court Justice Ruth Bader Ginsburg is “resting comfortably” after undergoing a heart catheterization procedure on Wednesday, according to a spokeswoman for the court.
AP: Supreme Court Justice Ruth Bader Ginsburg had a heart stent implanted Wednesday to clear a blocked coronary artery but was expected to be back at work for the start of next week, court officials said.
SCOTUS Blog: Eighty-one-year-old Justice Ruth Bader Ginsburg had a surgical procedure this morning to relieve a blockage in an artery in her heart, the Court announced.
Reuters: Do trial judges have to review their rulings in order to vacate them? You might assume so, but in an en banc decision Tuesday, the 4th U.S. Circuit Court of Appeals ruled that federal judges can vacate remand orders that turn out to have been based on misrepresentations – despite the procedural rule prohibiting judges from reconsidering their orders to remand cases to state court.
Remembering Alice Lee: Alabama Supreme Court justice, former Circuit Court judge share thoughts on a ‘dynamo’
Al.com: Once described as “Atticus Finch in a skirt,” longtime attorney Alice Lee was a woman who broke down barriers and built bridges. And yet, in the wake of her death at 103 on Monday, those remembering her speak of someone far greater than a fictional character created more than 50 years ago.
Five Thirty Eight: While it’s still unclear whether Obama will get to nominate another justice, the Republican gains in November make it unlikely a liberal nominee, such as Justice Thurgood Marshall, would be confirmed. And a nominee like the two Obama-appointed justices currently sitting on the court, Elena Kagan and Sonia Sotomayor, would face a possible filibuster.
Prawfs Blawg: I quite enjoyed Jessica Lowe’s article, Radicalism’s Legacy: American Legal History Since 1998. An economical 12 pages, it surveys developments in American legal history scholarship in the past decade and a half or so, framing it around the continuing influence of Robert Gordon’s famous piece Critical Legal Histories.
Cincinnati.com: The federal judge overseeing the ongoing lawsuit over whether Cincinnati’s lone remaining abortion clinic can remain open recused himself from the case early Saturday because he had previously been involved with Planned Parenthood as a private attorney “to avoid even an appearance of impropriety.”
Dorf on Law: Last week, Justice Thomas, joined by Justice Scalia, issued a brief statement respecting the denial of the stay application in Maricopa County v. Lopez-Valenzuela. The statement made waves because it criticized the Court’s failure (thus far) to grant certiorari in the same-sex marriage (SSM) cases, even though Maricopa County was not a SSM case.
Constitution Daily: There is no such thing as objective constitutional law, or objective law in any area. Supreme Court justices inevitably must make value choices in deciding cases, and these decisions inherently are a product of their life experiences and views.
Maryland Appellate Blog: Judge Harris impressed upon the gathered attorneys how collaborative the decision-making process is at the Fourth Circuit. Most practitioners understand that the Fourth Circuit is an uncommonly civil – even genteel – environment for practicing law.
Three questions about the legality of the Obama Administration’s anti-sexual assault on campus policies
The Washington Post: Kudos to Yale law professor Jed Rubenfeld for a thoughtful piece in the New York Times explaining why the Obama Administration’s decision to force campus kangaroo court disciplinary tribunals to go full marsupial with regard to sexual assault allegations is a bad approach to reducing sexual assault.
National Review: A follow-up to my two posts last month highlighting concerns about notorious liberal activist Stephen Reinhardt’s seemingly amazing propensity to be selected to sit on important cases with a strong ideological valence:
National Law Journal (Subscription required): For U.S. Supreme Court Justice Sonia Sotomayor, retirement is almost certainly years or decades off. But the 60-year-old justice is already thinking about it, and she said recently she’d like to preside over trials again when she retires.
National Law Journal: U.S. Supreme Court Justice Antonin Scalia on Thursday gave a history lesson on the Magna Carta before an annual gathering of conservative lawyers in Washington, keeping any opinions on contemporary high court matters to himself.
IJ Review: That John Gruber is guilty of the crime of Candor in the First Degree is not a matter for the Supreme Court. However, his remarks do highlight the dangerous hubris of those that are ‘smarter’ and ‘know what’s best.’
Life Site News: More troubling allegations of conflict-of-interest have emerged about U.S. District Judge Timothy S. Black, the federal judge selected to hear a challenge to an Ohio pro-life law.
National Constitution Center: The governing arrangements of religious denominations often reflect matters of faith or doctrine, and those may conflict with principles of property law.
National Review: We the undersigned are strongly committed to the appointment of judges who put the law and the Constitution ahead of their own political and policy preferences. The integrity of the judicial confirmation process and the function of the Senate are essential for the appointment of such judges, which is why we strongly oppose efforts to revive the judicial filibuster.
Washington Post: No, despite what this AL.com headlines (and some other sources say as well). The amendment would largely just restate that courts may not use foreign law in those cases when “doing so would violate any state law or a right guaranteed by the Constitution of this state or of the United States.”
Christian News Network: Since North Carolina’s denial of same-sex marriage was ruled to be unconstitutional, at least 6-8 family court magistrates have resigned from their positions, citing that their Christian faith prevents them from performing so-called same-sex marriages.
National Law Journal (Subscription required): The U.S. Supreme Court is often accused, rightly or wrongly, of “turning the clock back” on one doctrine or another. But when it came to turning the clock back—literally—at the court building on Monday, it seemed not to be up to the task.
North Carolina judges: Instead of stepping down for refusing to perform same-sex marriage, should stay on the bench
The Christian Post: Over the weekend, many Americans became aware of the now six North Carolina judges who have resigned after being told they will be forced to conduct marriage ceremonies for same-sex couples.
Toronto Suns: Members of the B.C. Law Society have asked their governing body to overturn a decision to accredit graduates from Trinity Western University’s law program.
In All Things: As I’ve been teaching American Constitutional Law for the past several years, I have had the opportunity to teach many of these cases to students, and I often find myself thinking, “I really wish everyone were more aware of these,” particularly with regard to some cases that impact important issues in Christian circles.
Lawyerist: There is a lot of discussion lately about the need for lower-cost legal fees. This is an important discussion for lawyers to have, but I think it is also important to stop and reflect on why hiring a lawyer is so expensive in the first place.
National Law Journal: The Department of the Army discriminated against a civilian worker who was transitioning from male to female, the U.S. Office of Special Counsel announced Thursday.
National Law Journal: A federal judge in Washington on Thursday dismissed claims in two lawsuits against the Internal Revenue Service brought by groups who alleged they were improperly targeted while applying for tax-exempt status.
Public Discourse: Courts heighten scrutiny of policies that classify people by sex and other “suspect” traits. But laws defining marriage as a male-female union are different in structure. The very form of policies based on the male-female pairing—unlike every other classification—demonstrates their connection to the common good. So courts shouldn’t subject them to the special scrutiny applied to other laws that classify by sex.
Public Discourse: The Supreme Court closely scrutinizes policies involving racial, sexual, and other “suspect” classifications. But unlike almost every other classification imaginable, marriage laws use a criterion necessarily linked to an inherently good social purpose that we didn’t just invent. This criterion isn’t truly suspect and shouldn’t get heightened scrutiny.
Townhall: I know this from personal experience as U.S. District Court Judge Raymond Jackson has decided the facts don’t matter and the First Amendment is unworthy of consideration in The Radiance Foundation v. National Association for the Advancement of Colored People The NAACP is abusing trademark law to censor me while Alliance Defending Freedom is fighting for my civil rights. Judges gone wild don’t care about the truth. They care about their worldview. Impartiality be damned.
National Law Journal: Surrounded by friends, rivals, judges, family and even some clients, former solicitor general Paul Clement celebrated an enviable milestone Wednesday night: his 75th oral argument before the U.S. Supreme Court.
Public Discourse: The equality that demands same-sex marriage demands that all social recognition of the distinction between mothers and fathers—of the paternal and the maternal, the masculine and the feminine, and of the sexual identity of everyone as male or female—must be systematically expunged, to be replaced by the lies and seductions of “gender identities” on the ever more blurry rainbow spectrum.
The Wall Street Journal: Comments made by Justice Ruth Bader Ginsburg in a magazine interview have reignited a long-simmering ethical debate confronting the Supreme Court over when a justice ought to sit out a case.
National Review: Beyond the passage I’ve highlighted in which Justice Ginsburg comments negatively on the Texas abortion law now under challenge in the Fifth Circuit, Ginsburg somehow sees fit in her New Republic interview to speak on all sorts of other matters related to abortion policy.
The Bell Towers: In a recent interview with Jeffrey Rosen of The New Republic, Justice Ruth Bader Ginsburg had harsh words for a Texas law regulating the health and safety of abortion clinics that is almost certainly headed to her desk. This is remarkable enough. As Ed Whelan and Prof. Josh Blackman have noted, these are exactly the kind of remarks, prejudging a specific case, that should trigger a responsibility to recuse.