Tag Archives: Category: Bench and Bar

Business Week: New York will require lawyers to perform 50 hours of pro bono work as a condition for getting a license under a rule that will take full effect in 2015, judicial officials said Wednesday.

Statesman.com: Texas Supreme Court Justice Dale Wainwright will step down at the end of this month to join the Bracewell & Giuliani law firm’s Austin office, the court announced Wednesday.

Reason.com: Does the Takings Clause still have any teeth left at all? We may soon learn the answer. On October 3 the Supreme Court will hear oral argument in the case of Arkansas Game & Fish Commission v. United States. At issue is whether a series of recurring floods sanctioned by the U.S. Army Corps of Engineers qualifies as a Fifth Amendment taking.

AP: With four justices in their seventies, odds are good that whoever is elected president in November will have a chance to fill at least one Supreme Court seat. The next justice could dramatically alter the direction of a court closely divided between conservatives and liberals.

Huffington Post: Ginsburg said with a smile that she couldn’t answer the question. She said she could not talk about matters that would come to the court, and that the Defense of Marriage Act would probably be up soon. “I think it’s most likely that we will have that issue before the court toward the end of the current term,” she said.

Dale Carpenter at SCOTUS Blog: The following contribution to our same-sex marriage symposium comes from Dale Carpenter, Earl R. Larson Professor of Civil Rights and Civil Liberties Law at the University of Minnesota. He is the author of Flagrant Conduct: The Story of Lawrence v. Texas: How a Bedroom Arrest Decriminalized Gay Americans. Constitutional law makes strange bedfellows. It can even unite supporters and opponents of same-sex marriage. Consider this: If Justice Scalia’s aggressive reading of Lawrence v. Texas (2003) is correct, could a Justice who refuses to overrule that decision reject a same-sex marriage claim?

American Lawyer: According to a new survey conducted by legal search consultant Major, Lindsey & Africa and Am Law Daily affiliate ALM Legal Intelligence, partners at Am Law 200, NLJ 350, and American Lawyer Global 100 firms saw their annual compensation rise, on average, 6.4 percent to $681,000 over the past two years. The jump was apparently driven, at least in part, by an uptick in the average rate those partners are billing, from $555 per hour in 2010 to $585 today.

Balkinization: Of the dozen-plus misrepresentation lawsuits filed against law schools by their former students, in recent months three have been dismissed (several have survived motions to dismiss and are in discovery). The core basis for the dismissal is the same in all three: prospective students cannot reasonably rely upon employment data posted by law schools . . . These three law schools, and others facing similar suits, undoubtedly count these decisions as victories. But I cannot shake the sense that they mark a deep wound to the standing of law schools.

LifeNews: When it comes to Supreme Court decisions, the media and election officials frequently talk about long-standing precedents that become accepted jurisprudence. In their eyes, such precedents should almost never be overturned by subsequent courts.

St. John’s Law School: From the contraception mandate in the Affordable Care Act to the so-called “ministerial exception” to the civil rights laws, religious liberty issues figure prominently in the current presidential campaign. Please join us for an informative debate on these issues between two leading law and religion scholars. Time will be reserved for audience Q&A.

Religion Clause Blog: As previously reported, in June the U.S. 8th Circuit Court of Appeals vacated 19 criminal contempt citations issued by a Minnesota federal district court against a Somali Muslim defendant who, for religious reasons, refused to stand when the court convened and recessed.

Reuters: If words alone must determine outcome, let’s take a look at what Scalia had to say when Adler asked a question posed by an audience member who wanted to hear the justice’s opinion on term limits for judges. Scalia called term limits “a solution without a problem,” arguing that, in his experience, William Douglas is the only justice who stayed on the Supreme Court too long. The question also led Scalia to muse, however, on how judicial salaries affect the composition of the federal judiciary. “The salaries of federal judges are so low that you’re not getting the best lawyers anyway,” Scalia said. “You’re (not) getting the, the best private lawyers. You may be getting good people, but they’re people who have been an assistant U.S. attorney, then they’re … you know, a minor state judge, then a bankruptcy judge, and then a magistrate judge. And, you know, they finally get appointed to a federal district court. A huge percentage of our federal judges now have never practiced law privately.”

The Republic: The courts have struck down another Montana election law as unconstitutional. The 9th U.S. Circuit Court of Appeals issued an opinion Monday that tosses out the state’s ban on political party endorsements of nonpartisan judicial candidates. | Sanders County Republican Cent. Comm. v. Bullock

Volokh Conspiracy: In a recent public forum, Supreme Court Justice Clarence Thomas made news by conceding that blacks were not part of “We the People” at the time of the Founding in the 1780s . . .

Lisa Shaw Roy, The Evangelical Footprint, 2011 Michigan State Law Review 1235-1291.

Funding for evangelical advocacy received a boost with the formation of the Alliance Defense Fund (ADF) in 1994. Prominent movement leaders, such as James Dobson of Focus on the Family and Bill Bright of Campus Crusade for Christ, formed ADF to fund litigation and to coordinate the efforts of Christian litigation firms.

ADF has been responsible for providing funding in several high profile cases, including Rosenberger, decided by the U.S. Supreme Court. ADF also sponsors litigation firms with overlapping interests, such as the Christian Law Association, Pacific Justice Institute, the Home School Legal Defense Fund, and the Foundation for Individual Rights in Education, to name a few. While ADF began solely as an umbrella organization to provide funds to individual lawyers and law firms, ADF now also takes its own cases.

Though its success as a funding organization seems apparent given, for example, the number of Supreme Court amicus curiae briefs that disclose ADF support, some opine that its success in coordinating evangelical litigation efforts has been mixed.

PBN.com: Although it may be surprising to see tiny Rhode Island in a legal fight with the U.S. Justice Department over the custody of an accused murderer – a battle that could go all the way to the U.S. Supreme Court – in many ways it befits the state’s unique political geography.

SCOTUS Blog: The following contribution to our same-sex marriage symposium comes from Steve Sanders, who teaches Constitutional Litigation, Sexuality and the Law, and Family Law at the University of Michigan Law School . . . Support for marriage equality continues growing dramatically and now commands a majority in many polls . . . Such attitudinal change should portend political and legal change. It should mean that winning equality state by state, through simple legislative majorities, is getting easier. “Use the democratic process!” legal conservatives like to counsel. “Don’t go running to the courts!” But in most states, such change will not come as naturally as it should, due to barriers erected by opponents of equality. On same-sex marriage, we have an example of what constitutional theorist John Hart Ely called “stoppages in the democratic process.”

Ammon Simon at National Review Bench Memos: The New York Times last week denounced the West Virginia supreme court’s decision to deny Allen Loughry, a candidate for their court, supplemental public campaign financing; the financing would have violated the political speech rights of his opponent, Justice Davis.

Blog of the Legal Times: Senate Republicans have concerns about something in the background of Justice Department nominee William Baer, and this week they are considering taking the unusual step of discussing them in secret.

ABA Journal: Justice Antonin Scalia was “enraged” when Chief Justice John G. Roberts Jr. switched his vote and created the majority needed to uphold the Obama administration’s health care law, according to a new book by journalist Jeffrey Toobin.

One News Now: Wisconsin judge has struck down nearly all of the state law championed by Gov. Scott Walker that effectively ended collective bargaining rights for most public workers.

Boston Globe: U.S. Supreme Court Justice Samuel A. Alito Jr. expressed frustration Friday at what he said were inaccuracies in the media about the court and its decisions, saying it’s difficult to sit by when opinions are misinterpreted.

National Journal: Time Magazine named Olson one of the 100 most influential people in the world in 2010. His high profile cases have included the Bush v. Gore recount in 2000 and the 2009 lawsuit against Proposition 8, California’s constitutional amendment banning same-sex marriage.

The link to the broadcast is here. Justice Scalia and co-author Bryan A. Garner will discuss their new book: Read the Law: The Interpretation of Legal Texts. Hat tip: SCOTUS Blog.

CNSNews: Judge Vaughn Walker, the now-retired federal judge in San Francisco who nullified California’s Proposition 8 in 2010, said if judges really are umpires, they must sometimes “move the strike zone” in order to champion social issues like same-sex marriage . . . “Many judges and politicians say that judges should act like umpires in the judicial arena and simply ‘call balls and strikes,’” Walker wrote in the article, titled Moving the Strike Zone.

Sacramento Bee: The 10th Circuit Court of Appeals said Thursday the constitutional amendment that created a nominating commission more than a half century ago is a testament to the state’s commitment to judicial independence.

Above the Law: Most SCOTUS clerks come in as third-year associates (at least), based on credit for their two (or more) clerkship years. Assuming a firm is on the standard Biglaw salary scale, that’s a base salary of $185,000. Add that to $280,000, and you’re looking at $465,000. Toss in another $15,000 — the year-end bonus for a third-year associate, according to the 2011 Cravath scale — and you’re looking at total cash comp of $480,000. Very nice.

U.S. Chamber of Commerce: The 2012 State Liability Systems Ranking Study was conducted for the U.S. Chamber Institute for Legal Reform to explore how fair and reasonable the states’ tort liability systems are perceived to be by U.S. businesses.

Radio Iowa: New poll: 48% of Iowans support court’s same-sex marriage decision
The poll found 48% of those surveyed agreed with the court’s decision on that same-sex marriage case, a dramatic shift compared to a 2009 survey which found 58% disagreed with the decision. The poll was commissioned by the “Justice, Not Politics” group and released to The Cedar Rapids Gazette . . .

AP: Supreme Court Justice Clarence Thomas says the same arguments the Founding Fathers fought over during the creation of the United States are still raging today.

SCOTUS Blog has listed Brewer v. Diaz as its Petition of the Day. Links to Center for Arizona Policy Amicus prepared by Alliance Defending Freedom Attorneys.

Charlotte Observer: HHS Secretary Kathleen Sebelius violated federal law when she made “extemporaneous political remarks” during a February speech to the Human Rights Campaign Gala in Charlotte, the U.S. Office of Special Counsel ruled Wednesday.

Blog of the Legal Times: Senate Judiciary Committee Chairman Sen. Patrick Leahy (D-Vt.) had just one reaction to the colorful testimony Wednesday on Capitol Hill from Jones Day partner Michael Carvin: “We should probably give you the award for saying the highest level of sarcasm we’ve heard before this committee in a long time.”

Gregg Nunziata at USA Today: The stakes are high in this presidential election, and one of the most consequential questions before the voters concerns the branch of government that is not officially on the ballot. In November, Americans will set the direction of the U.S. Supreme Court for decades to come.

Blog of the Legal Times: With a confirmation of a woman to the District Court of the Southern District of Iowa late Monday afternoon, Obama had confirmed as many women to the federal bench in his first term—72—than George W. Bush did in his two terms in office, a White House spokesman said in an email to media.

USCourts.gov: The Judicial Conference of the United States today agreed to close six non-resident federal court facilities—the latest in a series of cost-cutting measures implemented by the federal Judiciary’s national policy-making body.

Carrie Severino at National Review: Last Friday the West Virginia Supreme Court stopped Allan Loughry, a candidate for the West Virginia supreme court, from receiving additional public funding — funding that was triggered after the campaign expenditures of Mr. Loughrey’s opponent, Justice Robin Davis, crossed a certain threshold. The court found, in part, that because Mr. Laughrey’s additional public funding could neutralize Justice Davis’s campaign expenditures, the funds would violate Justice Davis’s political speech rights.

Jonathan Adler discusses the issue at the Volokh Conspiracy.

Heritage Foundation: The Supreme Court’s last term ended with a bang, but the upcoming term is shaping up to be arguably as significant. Just days before the High Court’s next term begins, The Heritage Foundation will preview the likely blockbuster cases, with Supreme Court luminaries Paul Clement and Tom Goldstein . . .

Dale Carpenter at the Volokh Conspiracy: Eighty-seven percent of constitutional law professors back marriage for same-sex couples, and 7 out of 10 believe the federal Defense of Marriage Act is unconstitutional, but only a slight majority of 54% think the federal Constitution requires states to recognize same-sex marriages. That’s the result of a survey of 485 constitutional law professors that I conducted this summer with the help of my indefatigable and indispensable research assistant, Minnesota 2L Samuel Light. In this post, I want to highlight some of the main results from the survey.

Wall Street Journal: The Arizona Supreme Court issued a unanimous ruling on Friday that put tattoos under the umbrella of the First Amendment but stopped short of forcing Mesa, Ariz., City Council to allow tattoo artists to open a parlor, the Arizona Republic reported.

VerdeNews.com: But attorneys from non-reciprocity states have to take the full-blown, two-day Bar examination. That requires not only extensive preparation — particularly for those who have been out of school for some time — but also waiting to find out if there was a passing score. The lawyers who are suing are from California and Montana, both non-reciprocity states. Also suing is the National Association for the Advancement of Multijurisdictional Practice, based in California.

Reuters: Lawyers for Republican Louisiana Governor Bobby Jindal have challenged a U.S. federal judge’s ruling that would allow a black state supreme court justice to become the court’s next chief justice.

NY Times: The November presidential election, widely expected to rest on a final blitz of advertising and furious campaigning, may also hinge nearly as much on last-minute legal battles over when and how ballots should be cast and counted, particularly if the race remains tight in battleground states.

Georgtown Law: The Supreme Court Term Preview Report for October Term 2012, summarizing all cases in which the Court granted review before the start of the current Term . . .

Michigan Law School: Still, she said, “There are certain substantive matters that we divide on because we approach Constitutional decision-making in a different sort of way, because we bring different methodologies to the table, because we have different views about governing precedents and how broad or narrow those precedents are.” The Court, she added, would be better off “if we had fewer of these 5-4 cases. … I would like to have a Court where there’s more unpredictability of decision-making.”

Concurring Opinions: This week, law professors are encouraged to call federal judges and ask them to pull from an enormous pile of clerkship candidates particular students whose merits might be otherwise obscured.

Bradenton.com: The Florida Supreme Court listened but also responded Wednesday as three lower court judges and a high-profile lawyer criticized new rules for the state courts, including term limits for chief judges and new limits on what judges are permitted to say. The high court set off a firestorm in February by adopting rules limiting judges’ comments to lawmakers and others about the court system and setting eight-year term limits for chief circuit and district court of appeal judges.

NJ.com: To cope with the continued shortage of justices on the Supreme Court, Chief Justice Stuart Rabner said today he is reassigning two appellate judges to the state’s high court beginning Oct. 1.

Las Vegas Sun: A planned visit by conservative U.S. Supreme Court Justice Antonin Scalia to a Las Vegas Roman Catholic church for a ceremony seeking divine guidance for legal professionals and to a Las Vegas Strip casino reception afterward was drawing criticism Tuesday from a liberal activist who promised demonstrations to mark the events.

NOLA.com: Federal District Court Judge Susie Morgan ruled Saturday that Justice Bernette Johnson has the seniority needed to succeed Catherine “Kitty” Kimball as chief justice of the Louisiana Supreme Court when Kimball retires early next year. In a decision issued just before 7 p.m., Morgan ruled that “any tenure accrued by Justice Johnson between Nov. 16, 1994 and October 7, 2000, is to be credited to her for all purposes under Louisiana law,” which would include determining whether she is the second most senior justice after Chief Justice Kimball.

NJ.com: New Jersey will be the stage for what’s likely to be a brutal campaign this fall, but it won’t have anything to do with the presidential election. For the first time in the state’s modern history, the New Jersey Supreme Court — an institution meant to be isolated from politics — will be subjected to a popular referendum reeking of politics.

How Appealing links to her article and a related report.

Ed Whelan at National Review Bench Memos: In the New Republic, Seventh Circuit judge Richard A. Posner has a very long essay (more than 5000 words) attacking Reading Law: The Interpretation of Legal Texts, the new treatise co-authored by Justice Antonin Scalia and Bryan A. Garner (and the subject of various posts of mine, beginning here, over the past month). As I hope to elaborate in additional posts over the next week or so, Posner’s attack is remarkably slipshod and untrustworthy. Here are some opening observations . . .

CNSNews: DOJ and the National Federation of the Blind objected to the program on grounds that blind people could not use the NOOK e-readers for technological reasons.

See SCOTUS Blog Petition of the Day reporting on: Agency for International Development v. Alliance for Open Society International, Inc., No. 12-10

AP: A Delaware law allowing Court of Chancery judges to preside over secret arbitration in business disputes is unconstitutional, a federal judge ruled Thursday.

Blog of the Legal Times: The former senator told the dozens of lawyers gathered that they have “a lot of work to do to make sure this election is not stolen,” saying that President Obama will “stop at nothing” to get the votes he needs to win. Bond said he “has a feeling” that the DOJ won’t crack down on election irregularities.

Richard A. Posner at the New Republic: Judges like to say that all they do when they interpret a constitutional or statutory provision is apply, to the facts of the particular case, law that has been given to them. They do not make law: that is the job of legislators, and for the authors and ratifiers of constitutions. They are not Apollo; they are his oracle. They are passive interpreters. Their role is semantic.

Michael Fragoso at Public Discourse: Criticism that Republican justices have only hurt the pro-life cause is misguided, because Republican presidents from Reagan onward have deliberately tried to advance judicial conservatism through federal court appointees–a commitment that has brought victories both for judicial conservatism and the pro-life cause. The second of a two part series.

David B. Rivkin, Jr. at the Wall Street Journal: In “Reading Law,” Supreme Court Justice Antonin Scalia and legal writer Bryan A. Garner argue for paying close attention to the original meaning of the words in the Constitution and other legal documents.

Carrie Severino at National Review: In both cases, the majority relied heavily on relevant texts and the original meaning of those texts, precedent, and fidelity to the concept that judges play an important and structurally defined role with respect to the actions of the other branches of government. Governor Pawlenty’s campaign for the Oval Office was short-lived, but, as these cases demonstrate, his impact on the Minnesota Supreme Court will not be.

The National Law Journal: Average tuition and fees at private law schools will increase approximately 4 percent over last year to $40,585, according to an examination of published rates by The National Law Journal . . . The single biggest factor in the ability of law schools to raise their prices is the availability of government loans, Organ said. As long as students can easily borrow the full cost of their tuition, schools will face less pressure to contain their costs. This year’s tuition increases “tell you the extent to which federal loan money makes students less price sensitive and gives pricing power to law schools,” he said. “I think the current system is pretty fragile. It’s completely dependent on the federal government making loans available.”

Washington Post: On Monday, public-interest group Common Cause filed a legal brief in a U.S. District Court trying to persuade the court that the filibuster’s 60-vote threshold in the Senate violates the Constitution. “Our filing today demonstrates how far the Senate, now effectively dominated by a minority, has strayed from the intent of America’s founders as expressed in our Constitution,” Common Cause president Bob Edgar said in a statement.

Freedom from Religion Foundation: The Aug. 27 letter by FFRF attorney Andrew Seidel to Superintendent Damon Raines points out that Liberty Counsel’s “no cost” representation offer, which the Liberty Counsel mistakenly sent to Walker County, Ala., instead of Walker County, Ga., is “disingenuous.” Seidel explained, “Even with pro bono legal representation, a court battle could cost Walker County taxpayers thousands or hundreds of thousands of dollars.”

Volokh Conspiracy: Prof. Mike Dorf has a post at Dorf on Law describing the brief he coauthored on behalf of the Association of American Law School in Fisher v. University of Texas. The gist of the brief is that if the Supreme Court reasons that Texas may not engage in affirmative action preferences because its race-neutral ten-percent plan already created a “diverse” class, this could mean that all institutions of higher education, including law schools, that seek racial and ethnic diversity would need to replace their current admissions policies with a rote, percentage-based admissions system to comply with the Constitution and federal law.

SCOTUS Blog: The two high-profile lawyers who started the nation’s most significant lawsuit attempting to gain marriage rights for same-sex couples told the Supreme Court on Friday that it might find it very interesting to take up that issue now, but urged the Justices not to do so in the only case now at the Court that could raise that question — the case testing the constitutionality of California’s “Proposition 8.” Attorneys Theodore B. Olson and David Boies argued that the case has procedural flaws, made no change in the law, involves no conflict among lower courts, and might raise core constitutional issues that the Court may not be ready to confront.

SCOTUS Blog: Then over the next days and weeks, the Justices head off for summer travel – teaching, vacationing, writing, lecturing, and attending bar association meetings and conferences of the federal appeals courts. But ask Supreme Court law clerks how they spent their summer vacation, and the answer is easy: reading petitions for certiorari by the hundreds.

David Skeel at the Wall Street Journal (via Google): No one doubts that the coming election will be the most important referendum on the size and nature of government in a generation. But another issue is nearly as important and has gotten far less attention: our crumbling commitment to the rule of law.

Findlaw: The California Supreme Court ruled last week that sentencing a juvenile offender to 110 years in prison qualifies as cruel and unusual punishment, reports the Los Angeles Times. So what should be the upper limit for juvenile offenders?

KansasCity.com: People who have Internet access will be able to watch Kansas Supreme Court arguments live online starting next week.

AL.com: Ginger Poynter and Melinda Lee Maddox both said they were ending their candidacies following the Alabama Democratic Party’s decision to disqualify Harry Lyon.

Findlaw: The accrediting body of law schools, the American Bar Association (ABA), has passed a new set of rules regarding reporting of law school data like employment and salary information.

Wall Street Journal: But even with all that debate over the Supreme Court and its rulings, two-thirds of Americans can’t name any justices, according to a survey released Monday by FindLaw.com, a legal information Web site.

Quad-City Times: Wiggins is one of four Iowa Supreme Court judges up for retention on the November ballot, but he is the only one of the four who was on the bench when the court unanimously ruled in the Varnum v. Brien case to legalize same-sex marriage in Iowa.