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Monday, February 29th, 2016

FEBRUARY 29, 2016 9:07 AM
Thomas has said he relies on written briefs and doesn’t need to question lawyers
Questions came as court considers placing limits law dealing with gun ownership
Thomas last asked a question in court on Feb. 22, 2006

Associated Press

Justice Clarence Thomas broke 10 years of silence and provoked audible gasps at the Supreme Court on Monday when he posed questions from the bench during an oral argument.
In a case about a federal law that bans people convicted of domestic violence from owning guns, Thomas wanted to know of any other case where breaking a law suspends constitutional rights.
And it wasn’t just one question; it was a back-and-forth lasting a few minutes that stunned lawyers, reporters and others in the courtroom.
It was only the second week the court has heard arguments since the death of Justice Antonin Scalia, Thomas’ friend and fellow conservative.
Thomas for seven years sat next to Scalia, who was famous for aggressive and sometimes combative questions from the bench. Scalia’s chair is now draped in black in a tribute to his death on Feb. 13.
Thomas’ questions Monday came in case in which the court is considering placing new limits on the reach of the 1996 law. The court is considering an appeal from two Maine men who say their guilty pleas for hitting their partners should not disqualify them from gun ownership.
With about 10 minutes left in

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Confederate statues: Lexington’s shameful graffiti. No context can whitewash the brutality they represen

Monday, February 29th, 2016

The old courthouse, where statues of Confederate heroes now reside, was the site of so much pain — the brutal manifestation of our nation’s original sin.
Families were sold on the auction block, separated from each other, never to see one another again. Mothers and their infants were sold to separate bidders. Much of Lexington’s growth and wealth was built on slave labor.
One local advertisement of the era promoted the auction to be held on the courthouse steps for a “negro girl” between the age of 14 and 15. The same age my daughter, Nell, is now. I can’t begin to imagine the horror. A horror countenanced and encouraged under the authority of the city, county and state.
Many have tried to whitewash the history of this pernicious practice but the shadow and scars remain today. The disparities in the treatment of our citizens based on race and the inequalities which disproportionately impact communities of color diminish us all and we collectively share an obligation to pursue justice and healing.
John C. Breckinridge, the subject of one of the statues, is the only person to be convicted of treason by the U.S. Senate. Yet his likeness is literally put on a pedestal in the heart of our town, just blocks from where I live. Those who sought to honor his service by erecting a statue did us all a disservice. We should follow the lead of his fellow senators who voted to eject him from the Senate.
If Mayor Jim Gray truly wants to provide historical context to accompany the statue, he will have the word “traitor” boldly emblazoned on the statue’s pedestal and a noose and whip added to the sculpted hands.
Likewise, John Hunt Morgan, celebrated as the Confederate general on horseback, was a slavery-defending despot whose careless disregard as a military commander ended up getting hundreds of his troops unnecessarily killed. He is no one to hold up as a role model.
It is senseless to honor these men because to do so, regardless of any context provided, is to tacitly endorse their misdeeds and brutality in the cause of preserving slavery. The prominence and positioning of these statues was intentional. The propaganda they were intended to be cannot be explained away.
If Gray wants to provide meaningful historical context, let him commission a census to determine the names of all of the citizens of Lexington sold at Cheapside. Erect a monument in remembrance of those who suffered such unspeakable horrors, the unjust denial of their liberty and forced servitude.
In a community that remains distressingly segregated by race and with too many of our citizens denied the full measure of opportunity, we can no longer be blind to the fact that these statues are a stain on our community. Context, however artfully attempted, cannot adequately counter the thinly veiled, ignoble intentions from which these statues were born.
There is no honor in slavery and we need not conspire with the charlatans of the past who perpetuated these statues. We share no obligation to preserve their graffiti in a public space today.
The smokescreen offered by city officials that tax credits necessary to finance the renovations of the courthouse could be at risk were the statues to be removed is just that — a smokescreen of ambiguous speculation and convenience that smacks of the Jim Crow justifications of yesteryear.
The right thing to do can never appropriately be subject to the popular will of the people, Abraham Lincoln argued as much in his famous debates with Stephen Douglas. Enlightened leadership is what is now needed.
In time, Gray will come to regret overturning the recommendations of the panel he empowered to study this issue and whose thoughtful recommendations provided an appropriate course of action. Gov. Nikki Haley found a way to remove the Confederate battle flag from the South Carolina statehouse.
Unfortunately, it took a white supremacist systematically committing serial murders in a house of God to prompt such a long overdue gesture.
I wonder what it will take for Lexington to see the light and listen to our better angels?
David Adkins, an attorney, moved to Lexington seven years ago and lives downtown with his wife, Lisa, and daughter, Nell.
At issue: Feb.18 Herald-Leader article, “Confederate statues will remain in Lexington courthouse square”

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When Should A Judge Recuse Himself? Supreme Court Weighs The Questio

Monday, February 29th, 2016

Updated February 29, 20166:10 AM ET Published February 29, 20164:52 AM ET


The U.S. Supreme Court hears arguments Monday testing whether a Pennsylvania Supreme Court justice violated the U.S. Constitution when he ruled in a death penalty case that he had been involved with as a prosecutor.
At issue is whether then-Chief Justice Ronald Castille, by refusing to recuse himself, denied the defendant, Terrance Williams, a fair hearing.
In hindsight, Williams was, as some put it, a “Jekyll-and-Hyde” personality. He was a star quarterback in high school who earned a scholarship to Cheyney University. He was also a violent teenager, who from an early age was the victim of rampant and vicious beatings at home and sexual abuse from neighbors and older men, even a middle school teacher.
Ultimately, Williams was convicted in the brutal killing of an older man with whom he’d had sex. The district attorney of Philadelphia at the time was Ronald Castille. He personally authorized seeking the death penalty in the case, and would later campaign for a seat on the state Supreme Court, noting that he had secured 45 death sentences as district attorney. One of those was in Williams’ case.
In 2012, a state court judge held an evidentiary hearing in the case and then issued a stay of execution, setting aside the death sentence on grounds of prosecutorial misconduct. The judge concluded that the prosecution had hidden mitigating evidence in the case. The state appealed to the Pennsylvania Supreme Court, where former DA Castille was by then sitting as chief justice. The defense moved to have Castille recuse himself, but he refused, and the six-justice court then reinstated the death penalty by a unanimous vote.
At the U.S. Supreme Court on Monday, lawyers for defendant Williams will tell the justices that Williams was denied his constitutional right to due process of law when Chief Justice Castille, who has since retired, participated in the case.
Public defender Stuart Lev observes that the U.S. Supreme Court has long held that “a prosecutor at the time of trial, should not be sitting in the role of judge, that you can’t switch roles in the same case, to go from a prosecutor to being a judge.” And that, he says, is what happened here.
Lawyers for the state declined to be interviewed for this story, but in their briefs, they argue that Castille’s role in seeking the death penalty was just “ministerial” and “administrative,” and that such a sign-off should not be a basis for later recusal.
Lev replies that it’s hard to see how a decision to seek the death penalty “can ever be considered ministerial,” and that the memo Castille signed required him to review facts and make a decision.
The state of Pennsylvania replies that whatever Castille’s role, it doesn’t matter in this case, since the six-justice state supreme court unanimously voted to reinstate the death penalty in the case. And, so the argument goes, even without Castille’s vote, the outcome would have been the same.
Not so fast, replies Lev, noting that appeals courts work closely on a collegial basis. And if the vote of one judge is corrupted, he maintains, the whole process is contaminated.
“It’s simply impossible to know what influence Chief Justice Castille had on the decision-making process,” Lev says, “and therefore the process itself is tainted.”
The U.S. Supreme Court has generally been loath to second-guess lower courts on the question of recusal, but there have been exceptions, and Lev says this is one of those exceptional cases.
“I know of no other case like this, anywhere, where a judge who had this kind of decision-making later sat as a judge on the same case,” Lev says.
Eight friend-of-the-court briefs have been filed in the case; all side with the defendant — including one filed by 16 former high-ranking prosecutors who became judges.

What to expect when the Supreme Court takes up the Texas abortion case next week (FEB 25. 2016)

Friday, February 26th, 2016

By Lisa Schencker | February 25, 2016

Abortion rights and anti-abortion advocates agree on at least one thing about a major Texas abortion case scheduled for hearing at the U.S. Supreme Court next week: It could have implications for state abortion laws across the country.

The Supreme Court is slated to hear oral arguments in Whole Woman’s Health v. Hellerstedt on Wednesday. Plaintiffs argue a Texas law unconstitutionally limits access to abortion by requiring doctors at abortion clinics to have admitting privileges at local hospitals and that the clinics meet the same standards as ambulatory surgical centers.

“It’s an opportunity for the Supreme Court to protect the health and safety of women by stopping this onslaught of sham laws,” said Nancy Northrop, CEO of the Center for Reproductive Rights, calling the Texas case “a watershed moment in the battle for reproductive rights.”

The abortion clinics that brought the case say the law will lead to the closures of 75% of the state’s abortion clinics (PDF), leaving some women hundreds of miles from their nearest provider. They say the procedure is a relatively safe one, and the law’s requirements are designed to limit access to abortion, not protect women’s health.

The state, however, argues that the law is aimed at safeguarding women’s health (PDF) , and that, if it takes effect, every metropolitan area that now has an abortion facility will still have one.

The case has elicited a flurry of briefs from organizations supporting each side. Organizations such as the American College of Obstetricians and Gynecologists, the American Medical Association and the American Academy of Family Physicians aresupporting the abortion clinics (PDF). Briefs on the other side of the case have come from religious groups, 24 states (PDF) and a number of other organizations.

During a call with reporters Thursday, Stephanie Toti, senior counsel with the Center for Reproductive Rights, which brought the case on behalf of Texas women’s health providers, outlined the main points she plans to argue before the justices. She’ll argue, among other things, that the 14th Amendment requires meaningful scrutiny of laws that restrict access to abortion care to ensure they don’t impose undue burdens on a woman’s right to access abortion services.

“This burden is unprecedented,” Toti said. “The Supreme Court has never upheld a law that would force a single abortion clinic to close.”

She’ll also argue the Texas law is not medically justified, and that the court, based on precedence, should not just defer to state lawmakers.

The case, however, goes far beyond just the Lone Star State. The case could significantly impact how states across the country regulate abortion.

Just this week, for example, a federal appeals court ruled (PDF) that a Louisiana law requiring abortion doctors to have admitting privileges at nearby hospitals may take effect. The 5th U.S. Circuit Court of Appeals stayed a lower court’s ruling against the law pending the outcome of an appeal. The law has already led to the closure of three of Louisiana’s five abortion clinics, said David Brown, an attorney for the Center for Reproductive Rights.

It’s the type of law that will be directly affected by the Supreme Court’s decision in the Texas matter.

Northrop said states have passed hundreds of laws that make it more difficult for women to get abortions.

She said the Texas case is an opportunity for the Supreme Court to clearly articulate that they mean what they said in Planned Parenthood v. Casey, decided in 1992. That was the case in which the court decided states may not place an undue burden on a woman’s right to get an abortion.

Matthew Clark, senior counsel for digital advocacy with the American Center for Law and Justice, agreed that the case will affect states across the country.

“It’s probably the biggest abortion case to reach the Supreme Court in at least a decade and will have far-reaching implications,” Clark said. “How this case goes will impact how other states either alter their abortion regulations, change, add to or reword [them].”

But Clark opposes the idea that the Texas law places an undue burden on women’s right to access abortion services.

“Requiring abortion clinics to meet the same basic health and safety standards as other surgical centers throughout the state puts no undue burden on anyone’s rights,” Clark said. “If the idea is to ensure the safest care is provided, this is common sense.”

Court watchers hope Wednesday’s arguments in the case will shed light on how the justices might vote. It’s unclear whether Justice Antonin Scalia’s absence will make a difference in the case. The court’s four liberal-leaning justices will likely side with the abortion clinics, while the court’s three most conservative-leaning justices will likely side against them. Justice Anthony Kennedy is often the swing vote.

If the court were to reach a 4-4 split, that would leave in place the ruling of the lower court.

The lower court upheld the Texas law. Or, the justices could decide to hold off on a decision until next term or re-argue the case next term, when a new ninth justice might be in place, Clark said.

The court has re-argued at least one abortion case in the past, right before Justice Clarence Thomas joined the court, Clark said. That case centered on whether anti-abortion advocates who protested in front of clinics violated the law by conspiring to deny women their right to abortion and right to interstate travel. The court voted 6-3 that the protesters had not broken the law. Scalia wrote that opinion.

Chase law school move to Covington feasible

Friday, February 26th, 2016

Scott Wartman, swartman@nky.com10:33 p.m. EST February 25, 2016

The Kenton County administration building in Covington could make an ideal new home for Chase College of Law, according to a study commissioned by the Kenton County Fiscal Court released Thursday….


Thursday, February 25th, 2016

Paul Hosefros—The New York Times FEB. 25, 2016
What happens in the wake of Antonin Scalia’s death?
“Reality has overtaken parody,” Antonin Scalia liked to say during his fiery 30-year tenure on America’s highest court. It was a quip typically hurled at judges who diverged from Scalia’s own philosophy, but it also encapsulated his dismay at much of the culture surrounding him. He dismissed the rulings of colleagues as “tutti-frutti opinion” and “argle-bargle.” He scoffed at “homosexual activists.” He deplored “sandal-wearing, scruffy-bearded weirdo[s]” who burned American flags (even as he upheld their right to do so).
“I’m normal,” Scalia once said. “Everyone else is crazy.”
And so it would hardly have surprised the brilliant and irascible jurist that mere hours after he was found dead on a Saturday morning in a quiet quarter of the West Texas mountains, a circus was already unfolding.
The show began within minutes of Texas Governor Greg Abbott’s publicly confirming Scalia’s death, when the communications director for Republican Senator Mike Lee of Utah tweeted, “What is less than zero? The chances of Obama successfully appointing a Supreme Court justice.” Senate minority leader Harry Reid responded that a delay in replacing Scalia would be “a shameful abdication of one of the Senate’s most essential constitutional responsibilities.” Ted Cruz’s Facebook page flooded with comments predicting that Barack Obama would now “attempt to destroy America once and for all” and the like, while the liberal sometime anchor Keith Olbermann pronounced Scalia’s death an “Improvement!”
This was all far off the official script for an institution that–rightly or wrongly, and it is often the latter–thinks of itself as above politics. But many close to the court viewed it with foreboding. “If the depressing deathwatch is the best we can do, I for one would rather go without a Supreme Court,” wrote Stephen Carter, a Yale law professor and author who once clerked on the court. “Seriously.”
It isn’t inevitable that the fight over replacing Scalia will end in gridlock, but it’s close. While Senate majority leader Mitch McConnell insists he has no intention of considering any White House nominee, there are seven Republican Senators up for re-election in states that Obama won at least once. Two of those Senators have already come out in favor of allowing hearings. If Obama selects a candidate with admirers on both sides of the aisle–the White House is reportedly vetting centrist Republican Governor Brian Sandoval of Nevada–moderates and vulnerable Republicans could potentially force McConnell to allow hearings. Fifty-six percent of Americans agree and want the Senate to hold a hearing, according to a recent Pew poll. Whether the seat is filled by Obama or his successor, the stakes have rarely been higher, with the ideological balance, the reputation and in some ways the very authority of the court on trial.
It is no accident that the nine–now eight, for the foreseeable future–judges who make up the Supreme Court of the United States go to work each day in a building that looks like a temple. It was designed that way, to reflect the court’s exalted role as the branch of government most likely to bend toward justice. And while no court has ever been devoid of politics, the Supreme Court has historically resisted the partisan excesses seen in the neighborhood’s other buildings.
The past three decades, coinciding largely with the Scalia tenure, have put that tendency to the test. It is not only that 5-4 decisions are now often the rule in cases of highest national impact. For the first time in modern history, those splits are now essentially along partisan divides. Justice John Paul Stevens, a Republican appointee who consistently voted with the court’s liberal wing, was the last member of the court to regularly cross lines in cases with political or ideological overtones. A study from William and Mary Law School noted that in the 220 years prior to Stevens’ retirement in 2010, only two decisions designated as “important” (and that had at least two dissenting votes) split along party lines. Over the 2010–12 terms alone, there were five that fit that bill.
In many ways the coming fight over replacing Scalia is a natural extension of his legacy. A bon vivant, sought-after public speaker and unparalleled writer who charmed many an opponent–Justice Elena Kagan, an Obama appointee who had never owned a gun before, became a hunting buddy–Scalia became by far the most famous Justice on the bench. Through his opinions and positions, he helped turn the court into a battleground–a place to fight back against, or fight to preserve, the judicial activism of earlier eras. He was best known for his dissents, for his love of a brawl, for his denouncements. It is this spirit–that interpreting the Constitution is about right and wrong, deception and truth–that will make replacing him so contentious in the coming months. “It’s hard to believe this,” the Justice said in 2012. “I was confirmed by a vote of 98 to nothing. Me!” That could never happen again, and Scalia, who described some fellow judges as “Mullahs of the West,” helped make it so.
“I don’t think in American history there ever has been such a sharp jurisprudential, philosophic, methodological difference between first-rate educated judges who are out of the Republican tradition and those out of the Democratic tradition,” says Laurence Silberman, one of the longest-serving judges on the D.C. Court of Appeals and Scalia’s close friend. “Scalia,” he adds, “was sort of the paradigmatic figure in that.”
Scalia began shaking up the staid, hierarchical Supreme Court from the moment he sat down for his first oral argument in the far-right chair that is reserved for the most junior Justice. As the lawyers presented their cases, he didn’t just ask questions of them–he more or less opened fire. “Do you think he knows that the rest of us are here?” Justice Lewis Powell whispered to Thurgood Marshall, according to John C. Jeffries’ biography of Powell.
With the exception of Clarence Thomas, who has not asked a question from the bench in about 10 years, Scalia’s approach gradually became almost the norm. “He radically changed oral argument,” says Tom Goldstein, a lawyer who argues frequently before the court and co-founded the popular court-watching site Scotusblog. Though the sessions are undeniably more engaging and penetrating than they once were, with eight Justices and at least two lawyers vying for time and talking over one another, they can take on the feel of a crowded presidential debate stage. “Just say ‘bingo’ or something” when you find it, Scalia said to a lawyer who was searching his papers to find the answer to a question.
In a 2010 First Amendment case, Justice Samuel Alito, mocking Scalia’s originalism, said to a lawyer, “I think what Justice Scalia wants to know is what James Madison thought about video games.” A few years ago, Kagan cut off a former Solicitor General before he got 10 words out. “We look like Family Feud,” Thomas told a group of Richmond, Va., lawyers, endeavoring to explain his own silence.
Scalia’s biggest legacy by far came from his famed dissents, which he said he wrote for law students. But his singeing language also gave voice to the right on topics from immigration to gay rights. It “boggles the mind,” Scalia wrote in a 2012 case, that the majority wouldn’t let Arizona enforce immigration laws “that the president declines to enforce.” He went on to wonder if any state would have even joined the union if they had known what was coming. Critics noted that his reference to Obama policy was gratuitous, since it wasn’t even part of the case. “The nation is in the midst of a hard-fought presidential election campaign; the outcome is in doubt. Illegal immigration is a campaign issue. It wouldn’t surprise me if Justice Scalia’s opinion were quoted in campaign ads,” Richard Posner, a onetime friend and conservative appeals-court judge who became increasingly critical of Scalia, wrote at the time.
In last year’s case upholding Obamacare, just as Ruth Bader Ginsburg did in the 2000 case that handed George W. Bush the presidency, Scalia notably signed off with “I dissent” rather than the more traditional “I respectfully dissent.” A day later, he called the ruling in favor of gay marriage a “judicial Putsch,” adding that he would rather “hide my head in a bag” than join the majority.
Says Goldstein: “If a member of the Supreme Court says its decisions are illegitimate, well, you’ve got to expect the public to listen.”
One casualty of the court’s sharpened philosophical and partisan divides has been consensus building. And while every member of the court owns some responsibility for that, Scalia seemed to have special disdain for compromise. “I prefer not to take part in the assembling of an apparent but specious unanimity,” he wrote in a separate opinion in a 9-0 case striking down a Massachusetts restriction on abortion protesters. When Scalia was nominated, many thought he would, in part because of his charm, forge conservative majorities the way the late William Brennan had cobbled them together on the left. But Scalia soon showed he would rather lose than muddle his opinion. “He didn’t care as much about the result,” says Silberman. “He cared about the reasoning.”
That may be admirable for a judge seeking to shape history. (“I write my dissents for casebooks. There’s no other reason to write them,” Scalia said.) But it is a tough recipe for a court that aims to be a redoubt from the fray in an increasingly frayed democracy. As an institution that exists to resolve problems, a now retired member of the court once said, “there’s a strong obligation to try to bend.” Or as Chief Justice John Roberts put it in his own nomination hearings, “You do have to be open to the considered views of your colleagues.” He added that a priority of any Chief Justice should be to “bring about a greater degree of coherence and consensus.”
Consensus has had its moments in the 11 years since Roberts took his chair at the center of the bench, from the two-thirds of cases that were unanimous in the 2013–14 term to the Roberts-led majority in the Obamacare case that defied party lines (and for which, as TIME’s David Von Drehle put it, he “had to squirm like Houdini to reach middle ground”). It is too early to tell, and may even require undue optimism in this season of vitriol, but perhaps Scalia’s departure will boost Roberts’ efforts.
Regardless of which President chooses the next Justice, or when he or she is sworn in, the remaining members now have a chance to “take back” the court, not merely from the extremes of Scalia’s tongue and pen but also from the broader, uglier partisanship that, having beset the White House and Congress, has been on the verge of taking over the third branch as well. That would mean fewer dissents, more consensus and narrower opinions that take the edge, the partisanship out of the mix to the extent that it is possible. It is an opportunity for the court to get back to what many who revere it want it to be.
Felsenthal is the editor of TIME Digital and a former Supreme Court correspondent

This appears in the March 07, 2016 issue of TIME.

Appellate Court Rules Against Abortion Clinics in Louisiana

Thursday, February 25th, 2016


NEW ORLEANS — Feb 24, 2016, 8:46 PM ET
A federal appeals court ruled against abortion clinics Wednesday by allowing a Louisiana law to take effect that requires doctors who provide abortions to have admitting privileges at hospitals within 30 miles.
The 5th U.S. Circuit Court of Appeals blocked a federal judge’s ruling that had found the admitting privileges unconstitutional.
U.S. District Judge John deGravelles in Baton Rouge last month barred Louisiana officials from enforcing the mandate. DeGravelles has not yet ruled on the state’s abortion law itself, though he heard arguments about it in June.
Supporters say the law’s provision requiring admitting privileges at area hospitals is meant to protect women’s health. Opponents say it’s meant to make it essentially impossible for women to get abortions and would do just that.
The Center for Reproductive Rights, which represents three clinics and their doctors, said it would ask the U.S. Supreme Court to block the appellate court’s ruling. The center said the ruling threatens to close three of Louisiana’s four abortion clinics.
“Today’s ruling thrusts Louisiana into a reproductive health care crisis, where women will face limited safe and legal options when they’ve made the decision to end a pregnancy,” Nancy Northup, the president and CEO of the Center for Reproductive Rights, said in a statement.
The three-judge appellate panel disagreed and disputed whether clinics would be forced to close.
The panel’s opinion, written by U.S. Circuit Judge Jennifer Walker Elrod, also disputed deGravelles’ analysis that the law “deprives 99% of Louisiana women of access to an abortion.”
“Louisiana is likely to succeed in showing that these calculations are neither sufficient nor sufficiently reliable for Plaintiffs to establish an undue burden on a large fraction of Louisiana women,” Elrod wrote.
In the ruling, Elrod also noted that the 5th Circuit has upheld similar requirements for admitting privileges and rebuked the plaintiffs for failing “to grapple with this court’s prior precedent” in their arguments.
The Supreme Court is scheduled to take up a similar Texas law March 2.
“When a similar law passed in Texas, women were forced to drive hundreds of miles, leave the state, or take matters into their own hands,” Cecile Richards, president of Planned ParenthoodFederation of America, said in a news release. “It is irresponsible to allow this medically unnecessary restriction to go into effect less than a week before the Supreme Court will consider whether this type of law is even constitutional.”
Louisiana Attorney General Jeff Landry praised the ruling and said in a statement that it allows “Louisiana’s pro-life and pro-woman admitting privileges law to go into effect.” He called the law “a reasonable, common-sense safety measure.”
“Anyone who has outpatient surgery would expect her doctor to admit her to a hospital in the event of complications; women seeking abortions should have the same assurance of prompt care,” Landry said.
Northup countered that abortion “is extremely safe” and that getting admitting privileges at hospitals “can be very difficult” because of “hospital policies or biases against abortion providers.”
The lawsuit contends that Louisiana does not require doctors performing procedures other than abortions to have admitting privileges at a local hospital. “Physicians perform similar, and often higher risk, outpatient procedures in their offices without admitting privileges,” it says.
Louisiana’s law is among hundreds of abortion restrictions passed across the country in recent years.

Casemaker agrees state law isn’t copyrightable, won’t defend Fastcase suit

Thursday, February 25th, 2016


Saying that he is “mystified” by a lawsuit filed against Casemaker by a competitor after a reported takedown demand by Casemaker, the legal publisher’s CEO said the company will not defend the declaratory judgment action.

The federal suit filed in Atlanta by Fastcase Inc. seeks “a declaration that state law is not copyrightable. We’re all in favor of that, of having state law declared not copyrightable,” Casemaker CEO David Harriman told Robert Ambrogi’s LawSites.

At issue in the case are the Georgia Administrative Rules & Regulations, which Lawriter LLC, doing business as Casemaker, has a contract with the state to publish.

Casemaker provides the material to the public on a free website, and makes money by providing the rules, in a publishable format, to customers such as LexisNexis, as well as making speedy updates when the rules change, Harriman said.

Related coverage: “Fastcase sues Casemaker for takedown demand, says Georgia administrative rules can’t be copyrighted”


Wednesday, February 24th, 2016

An unprecedented delay in filling Justice Antonin Scalia’s seat would have the following ripple effects. By Amy Bergquist

FEBRUARY 23, 2016 — 6:21PM

Majority Leader Mitch McConnell of Kentucky said at a Tuesday news conference that all Republicans on the Senate Judiciary Committee oppose holding a hearing on any nominee submitted by President Obama to replace the late Supreme Court Justice Antonin Scalia.More
In October 2013, while Republicans in Congress shut down the government for 16 days, the Supreme Court began its term as usual, and, unlike most other federal government institutions, the Supreme Court building remained open to the public.
The wheels of justice turn slowly, but the GOP now threatens to bring them to a halt. Republicans’ latest plan is to shut down the Supreme Court. Call it Government Shutdown 2.0.
Ads by ZINC

The Republican leadership has pledged that the Senate will not confirm anyone President Obama selects to fill the late Justice Antonin Scalia’s seat, regardless of the candidate’s qualifications. The next president, they argue, should make the appointment.
This unprecedented obstructionism would, in effect, block the Supreme Court from conducting some of its core functions for more than two years. Over the past decade, up to a third of the court’s docket has been decided by 5-4 votes. Without a full bench, the court may be unable fulfill its main role: to resolve conflicts in the interpretation of federal law and the Constitution.
If some appellate courts interpret a law in one way but other appellate courts disagree, the result is a dysfunctional law. For example, the Eighth Circuit Court of Appeals, which includes Minnesota, ruled that the Affordable Care Act’s contraception exemption procedures for religious employers violate federal law, while all other appellate courts to consider the question upheld those provisions. The Supreme Court will hear argument in these cases next month, and would ordinarily issue a decision by the end of June, resolving the conflict and restoring uniformity and predictability to how courts apply federal law.
But not if Republicans have their way. If Scalia’s seat remains vacant, there is a risk that particularly contentious cases, like challenges to the Affordable Care Act, will result in a 4-4 split at the high court. What happens then? The most likely result is the court will affirm the lower court’s decision, with no opinion and no precedent to guide lower courts in resolving the conflict.
What does that mean? For the contraception exemption, for example, it would mean that religious employers in Stillwater wouldn’t have to fill out the exemption form, while religious employers just across the river in Hudson, Wis., would. The court would have to wait for a new case — and a new justice — before it could take another stab at resolving this inconsistency.
The court has another option: It could hold the 4-4 cases and schedule reargument after a new justice is seated. But when would that happen? The confirmation process typically takes at least two months, so even if the new president names a nominee on Inauguration Day, the new justice probably wouldn’t be sworn in before April 2017. But the court has its last oral arguments for the term in April, and those arguments are scheduled many months in advance. The soonest the court could schedule cases for reargument before a full panel of nine justices would be October 2017, when the next term begins.
The court begins to issue decisions from the October arguments in late November or early December, but more controversial cases — cases more likely to result in 5-4 decisions — often take months longer. Opinions in some of those cases might not be handed down until the end of the term: June 2018.
These protracted delays would have a ripple effect. Some controversial cases carry other lower court decisions in their wake. If the court agrees to hear a case and other cases arise concerning the same legal issue, the court typically “holds” those related cases until the main case is resolved, and then, as appropriate, remands the other cases to the lower courts for reconsideration in light of the court’s new opinion. Over the course of a single term, one case may keep over a dozen other cases in limbo. Over two or even three terms, that limbo list would multiply.
To ensure a fully functional third branch of government, Senate Republicans should promptly hold hearings on Obama’s nominee and bring the nomination to a vote. As retired Justice Sandra Day O’Connor put it: “We need somebody in there to do the job and just get on with it.”

Amy Bergquist, of Minneapolis, is an attorney who clerked for U.S. Supreme Court Justice Ruth Bader Ginsburg in 2010-11.


Wednesday, February 24th, 2016

Section 2.

The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.



Wednesday, February 24th, 2016

Article – A Spilt Supreme Court (4-4) May Be A Good Thing for Moderates

Feb. 23, 2016
With Justice Antonin Scalia’s death, the Supreme Court stands at eight justices, and the GOP-controlled Congress and Democratic President Obama are in a high-stakes stand-off.
With only eight votes on the court, the possibility of a tie increases. When there is a tie, two things happen. First, the lower court decision stands. Second, and perhaps more importantly, the Supreme Court’s opinion does not establish precedent. Without a definitive court ruling, the law may not be consistently interpreted by lower courts throughout the country.
An eight-member court is thus unable to fully dispose of the most contentious issues. In particular, the court is now unable to dispose of any case in which Scalia would have joined with exactly four of his fellow justices.
These facts will have immediate consequences for cases the court is currently considering. In the first case, the court will decide whether the Affordable Care Act violates employers’ religious liberty by requiring that either employers provide contraceptive coverage or let insurance companies or the government handle coverage.
The case itself consolidates seven different cases wherein federal appeals have found that the contraception mandate does not violate the employers’ rights. So, if the court is tied on this issue, then the consequence will be favorable to liberals. But, again, the court’s decision will not establish precedent and therefore will not be controlling on other courts that have not yet ruled on the issue.
Another case concerns the constitutionality of Obama’s executive actions on immigration. In this case, the lower courts have sided with conservatives, finding that Obama’s actions to defer deportation of undocumented immigrants (the Deferred Action for Parents of Americans and Lawful Permanent Residents program, or DAPA) is likely illegal and/or unconstitutional. A tied court would mean that, in effect, the DAPA program is dead (for now).
On these two issues — abortion and separation of powers — Scalia was particularly conservative relative to his colleagues. In his absence, the best conservatives can hope for now is a tied court.
For conservatives, these cases present mixed blessings. In the immigration case, for example, they might get their preferred outcome, while also avoiding a precedent that could limit discretion for future presidents, who could themselves be conservatives.
At the same time, the contraception case — as well as other contentious cases about affirmative action and public unions where Scalia might have delivered a critical conservative vote — are the culmination of years-long litigation efforts. A stalemate at the Supreme Court would be far from a satisfying outcome.
This gets at the broader problem an eight-vote Supreme Court poses for conservatives. The court does not unilaterally make its own agenda. It must pick and choose from issues that are brought to it — by citizens, interest groups, businesses, governments and others. In a polarized and divided government, the only practical venue to obtain quick policy change is the courts.
Many conservatives, angered by eight years of Obama administration policies, have looked to the courts for exactly that. So the limited power of an eight-vote Supreme Court will only further frustrate the conservative base of the Republican Party.
This puts Republican Majority Leader Mitch McConnell and his Senate colleagues between a rock and a hard place: Getting a decisive vote on some or all of these forthcoming cases requires acquiescing to an Obama nominee for the Supreme Court. Stonewalling such a nominee requires withstanding the heat of a simmering conservative base. Given that McConnell has 24 colleagues standing for reelection, and (retiring) Senate Minority Leader Harry Reid has only 10, it’s already pretty hot in Mitch’s kitchen.
What is more, because of the possibility that Senate Republicans find themselves in a difficult position, Obama’s incentives are potentially more complex than they might appear at first blush. In particular, the president’s incentives depend less on the prospect of 4-4 decisions in these pending cases.
Instead, his incentives depend more on his legacy because whoever fills Scalia’s seat will rule on many future cases — most likely including cases central to Obama’s agenda while in office, such as health care reform and any potential gun control regulations.
Obama’s incentives also depend on uncertainty about which party will control the White House next year. His incentive is to fill the vacancy himself rather than take the risk that a Republican will have that power.
His best strategy is simple: Find a safe nominee (well qualified, politically moderate) who is willing to accept the offer, and throw the ball into the court of McConnell and his colleagues.
We’ll grab our popcorn.
John W. Patty is professor of political science at the University of Chicago. Tom Clark is professor of political science at Emory University.


Wednesday, February 24th, 2016

WASHINGTON (The Borowitz Report)—Making good on one of his key campaign promises, President Obama signed an executive order on Tuesday relocating the United States Congress to Guantánamo Bay, Cuba.

The President seemed to relish signing the order, calling the relocation a “win-win for America,” and indicating that Congress could be moved to its new headquarters “immediately.”

“We don’t envision doing any renovations to the facility down there,” he said. “It is ready to house Congress right now.”

The President did not specify what the current U.S. Capitol building would be used for in the future, but he hinted that it could be the setting for historic reënactments in the manner of Colonial Williamsburg.

“I think it could be fascinating to school groups,” he said. “It could really take them back to the olden days when it was a real, functioning place.”

Minutes after the President signed the order, Senate Majority Leader Mitch McConnell (R-Kentucky) called it “an outrage” and “grounds for impeachment,” but Obama appeared to take such howls of protest in stride.

“If Congress believes that this executive order is illegal, they can take it up with the Supreme Court,” he said. “Oh wait—we don’t have a Supreme Court.”


Tuesday, February 23rd, 2016


Antonin Scalia, who died this month, after nearly three decades on the Supreme Court, devoted his professional life to making the United States a less fair, less tolerant, and less admirable democracy. Fortunately, he mostly failed. Belligerent with his colleagues, dismissive of his critics, nostalgic for a world where outsiders knew their place and stayed there, Scalia represents a perfect model for everything that President Obama should avoid in a successor. The great Justices of the Supreme Court have always looked forward; their words both anticipated and helped shape the nation that the United States was becoming. Chief Justice John Marshall read the new Constitution to allow for a vibrant and progressive federal government. Louis Brandeis understood the need for that government to regulate an industrializing economy. Earl Warren saw that segregation was poison in the modern world. Scalia, in contrast, looked backward.
His revulsion toward homosexuality, a touchstone of his world view, appeared straight out of his sheltered, nineteen-forties boyhood. When, in 2003, the Court ruled that gay people could no longer be thrown in prison for having consensual sex, Scalia dissented, and wrote, “Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.” He went on, “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a life style that they believe to be immoral and destructive.”
But it was in his jurisprudence that Scalia most self-consciously looked to the past. He pioneered “originalism,” a theory holding that the Constitution should be interpreted in line with the beliefs of the white men, many of them slave owners, who ratified it in the late eighteenth century. During Scalia’s first two decades as a Justice, Chief Justice William H. Rehnquist rarely gave him important constitutional cases to write for the Court; the Chief feared that Scalia’s extreme views would repel Sandra Day O’Connor, the Court’s swing vote, who had a toxic relationship with him during their early days as colleagues. (Scalia’s clashes with O’Connor were far more significant than his much chronicled friendship with Ruth Bader Ginsburg.) It was not until 2008, after John G. Roberts, Jr., had succeeded Rehnquist, that Scalia finally got a blockbuster: District of Columbia v. Heller, about the Second Amendment. Scalia spent thousands of words plumbing the psyches of the Framers, to conclude (wrongly, as John Paul Stevens pointed out in his dissent) that they had meant that individuals, not just members of “well-regulated” state militias, had the right to own handguns. Even Scalia’s ideological allies recognized the folly of trying to divine the “intent” of the authors of the Constitution concerning questions that those bewigged worthies could never have anticipated. During the oral argument of a challenge to a California law that required, among other things, warning labels on violent video games, Justice Samuel Alito interrupted Scalia’s harangue of a lawyer by quipping, “I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?”
Scalia described himself as an advocate of judicial restraint, who believed that the courts should defer to the democratically elected branches of government. In reality, he lunged at opportunities to overrule the work of Presidents and of legislators, especially Democrats. Scalia helped gut the Voting Rights Act, overturn McCain-Feingold and other campaign-finance rules, and, in his last official act, block President Obama’s climate-change regulations. Scalia’s reputation, like the Supreme Court’s, is also stained by his role in the majority in Bush v. Gore. His oft-repeated advice to critics of the decision was “Get over it.”
Not long ago, Scalia told an interviewer that he had cancelled his subscription to the Washington Post and received his news from the Wall Street Journal, the Washington Times (owned by the Reverend Sun Myung Moon’s Unification Church), and conservative talk radio. In this, as in his jurisprudence, he showed that he lived within the sealed bubble of contemporary conservative thought. That bubble also helps explain the Republican response to the new vacancy on the Court. Within hours of Scalia’s death, Mitch McConnell, the Senate Majority Leader, announced that the Senate will refuse even to allow a vote on Obama’s nominee, regardless of who he or she turns out to be. Though other Republican senators have indicated that they might be a little more flexible, at least on hearing out a nominee, the chances of a confirmation before the end of Obama’s term appear to be close to nil.
This Republican intransigence is a sign of panic, not of power. The Court now consists of four liberals (Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) and three hard-core conservatives (Roberts, Clarence Thomas, and Alito), plus Anthony Kennedy, who usually but not always sides with the conservatives.
With Scalia’s death, there is a realistic possibility of a liberal majority for the first time in two generations, since the last days of the Warren Court. A Democratic victory in November will all but assure this transformation. Republicans are heading to the barricades; Democrats were apparently too blindsided to recognize good news when they got it.
Like Nick Carraway, Scalia “wanted the world to be in uniform and at a sort of moral attention forever.” The world didn’t coöperate. Scalia won a great deal more than he lost, and he and his allies succeeded in transforming American politics into a cash bazaar, with seats all but put up for bidding. But even though Scalia led a conservative majority on the Court for virtually his entire tenure, he never achieved his fondest hopes—thanks first to O’Connor and then to Kennedy. Roe v. Wade endures. Affirmative action survives. Obamacare lives. Gay rights are ascendant; the death penalty is not. (These positions are contingent, of course, and cases this year may weaken the Court’s resolve.) For all that Presidents shape the Court, the Justices rarely stray too far from public opinion. And, on the social issues where the Court has the final word, the real problem for Scalia’s heirs is that they are out of step with the rest of the nation. The public wants diversity, not intolerance; more marriages and fewer executions; less money in politics, not more. Justice Scalia’s views—passionately felt and pungently expressed though they were—now seem like so many boats against the current, borne back ceaselessly into the past. ♦

Supreme Court holds Federal Arbitration Act pre-empts state law rules

Tuesday, February 23rd, 2016

February 23 2016
Litigation USA



In AT&T Mobility LLC v Concepcion the Supreme Court held that the Federal Arbitration Act pre-empts state-law rules barring enforcement of an arbitration agreement if the agreement does not permit the parties to utilise class procedures in arbitration or in court. Before Concepcion, the law of California included a limitation on the enforceability of arbitration agreements, but Concepcion declared that rule invalid as a matter of federal law. On December 14 2015, in DIRECTV, Inc v Imburgia, the Supreme Court held that Section 2 pre-empts a state law interpretation of an arbitration agreement based on a legal rule that the state courts had applied only in the arbitration context, concluding that the state-law ruling “does not rest ‘upon such grounds as exist… for the revocation of any contract’”.


Petitioner DIRECTV, Inc (DTV) moved to compel arbitration of respondent Imburgia’s class action after Concepcion clarified that state law could not invalidate the arbitration agreement on the ground that it barred class procedures. The state trial court denied DTV’s motion and the California Court of Appeal affirmed. The agreement, which provided that the Federal Arbitration Act governed its terms and contained a class waiver, provided that it was invalid if the “law of your state” would nonetheless require class arbitration. The appeal court held that this reference to state law meant that the parties had agreed that California law – without regard to the Federal Arbitration Act’s pre-emptive effect – would govern. Because California law requires class procedures, the court held the arbitration invalid, even though that California law was pre-empted by Concepcion.


By a six-to-three vote the Supreme Court, in an opinion by Justice Breyer, reversed the California court’s decision and remanded the case. The court started with the “elementary point of law” that “[n]o one denies that lower courts must follow this Court’s holding in Concepcion” because the Federal Arbitration Act “is a law of the United States, and Concepcion is an authoritative interpretation of the Act”. Citing the supremacy clause, the court explained that “[c]onsequently, the judges of every State must follow it”.

The court recognised the possibility that parties to arbitration agreements can select any governing law that they wished, suggesting fanciful examples such as “the law of Tibet”, “the law of pre-revolutionary Russia” or (perhaps nearly as fanciful) pre-Concepcion California law that would invalidate the arbitration agreement’s core feature – arbitration on an individual basis. The court also acknowledged that how to interpret the arbitration agreement’s selection of governing law is a question of state law. However, it underscored that any such interpretation must comply with the Federal Arbitration Act’s mandate that only generally applicable state law principles – ones that “in fact rest ‘upon grounds as exist in law or equity for the revocation of any contract’” – may be applied to interpret an arbitration contract.

Accordingly, the court explained, the question before it was whether the California Court of Appeal’s interpretation of the phrase ‘law of your state’ to “include invalid California law” was one that is generally applicable to all contracts. The answer was no:

“[W]e conclude that California courts would not interpret contracts other than arbitration contracts the same way… nothing in the Court of Appeal’s reasoning suggests that a California court would reach the same interpretation of ‘law of your state’ in any context other than arbitration.”

Breyer pointed to multiple factors:

The “ordinary meaning” of a reference to state law is “valid state law”, and accordingly there was nothing ambiguous about the reference that would make invalid state law a reasonable alternative.
In other settings, California law would interpret contract language to incorporate retroactive changes in the law.
The California Court of Appeal’s rule was arbitration specific: “we can find nothing in that opinion (nor in any other California case) suggesting that California would generally interpret words such as ‘law of your state’ to include state laws held invalid because they conflict with, say, federal labor statutes, federal pension statutes, federal antidiscrimination laws, the Equal Protection Clause, or the like.”
It was “unlikely” that California courts would “accept as a general matter and to apply in other contexts” the “view that state law retains independent force even after it has been authoritatively invalidated by this Court”.
For these reasons, the Supreme Court concluded that California’s interpretation of the phrase ‘law of your state’ did not place arbitration contracts “on equal footing with all other contracts”; accordingly, the lower court’s decision was pre-empted by the Federal Arbitration Act.

Justice Thomas filed a dissenting opinion reiterating his longstanding opposition to the application of the Federal Arbitration Act to cases in state courts.

Justice Ginsburg, joined by Justice Sotomayor, filed a separate dissent. In her view, the arbitration provision’s reference to ‘law of your state’ was ambiguous and that ambiguity should have been construed against the drafter. Her dissent also catalogued a number of policy criticisms of arbitration, relying in part on a recent New York Times article. Those criticisms have been the subject of an extensive and ongoing debate.


The impact of the decision – which is particularly notable because it was authored by Breyer, who wrote the dissent in Concepcion – is to make clear that states may not apply idiosyncratic interpretations of contract provisions in order to evade the Federal Arbitration Act. At the same time, businesses using arbitration provisions should seek to draft those provisions carefully to avoid the possibility that a court will subject the provisions to such interpretations in the first place.

For further information on this topic please contact Andrew J Pincus or Archis A Parasharami at Mayer Brown LLP by telephone (+1 202 263 3000) or email ( or The Mayer Brown International LLP website can be accessed at

ENERGY MARKETS: Supreme Court to hear major grid case without Scalia

Tuesday, February 23rd, 2016

Robin Bravender, E&E reporter
Greenwire: Monday, February 22, 2016
A consequential energy case is on the Supreme Court’s docket this week as the justices hear their first arguments since the death of Justice Antonin Scalia.

On Wednesday, the court will hear the second high-profile case of this term where justices must weigh the divisions of state versus federal authority over electricity markets.

At issue: Does a Maryland program providing incentives for new power generation improperly veer onto federal regulators’ turf?

Lower courts said it does. The Richmond, Va.-based 4th U.S. Circuit Court of Appeals upheld a decision to knock down the state program, finding that Maryland’s efforts to spur new natural gas generation infringed on the Federal Energy Regulatory Commission’s jurisdiction over “wholesale” rates for electricity and transmission that crosses state lines.

At least four justices on the high court voted to take on the case, despite objections from the Obama administration, signaling that several justices might be interested in reversing the lower court’s findings. The Supreme Court case involves two consolidated appeals — Hughes v. Talen Energy Marketing and CPV Maryland LLC v. Talen Energy Marketing.

The stakes are high. States argue that their ability to ensure appropriate power generation is in jeopardy, while some utilities contend that the program is illegal and unfairly distorts costs.

Appealing the lower court’s decision are Maryland Public Service Commission Chairman W. Kevin Hughes and CPV Maryland LLC, the company that submitted the winning bid to construct a new natural gas power plant. Their backers include a broad coalition of states — including Connecticut, Iowa and Mississippi — the American Wind Energy Association, the National Governors Association, the National Association of Regulatory Utility Commissioners, the American Public Power Association and the National Rural Electric Cooperative Association.

In urging the high court to hear the case, Maryland officials said the issues are “exceptionally important.” The lower court’s decision “imperils dozens of state laws under which private parties are investing billions in needed generation plants, from clean-coal facilities in Illinois to offshore wind in Massachusetts.”

They noted that another appeals court, the 3rd Circuit, followed the 4th Circuit’s lead by striking down a New Jersey law to encourage new gas-fired generation. “Going forward,” they said, “the attacks leveled by this decision and its progeny will sow uncertainty, stifle investment in needed facilities, and open a dangerous generation planning vacuum.”

On the other side: Talen Energy Marketing LLC. It’s supported by the Electric Power Supply Association, the PJM Power Providers Group, American Electric Power Co. and others.

They argue that Maryland’s program improperly treads into FERC’s territory by mandating that a generator receive a different price than one approved by FERC for electricity on the wholesale market.

The Obama administration urged the high court not to review the case, arguing in a brief last September that the lower courts correctly found that Maryland and New Jersey incentive programs were pre-empted.

“Both courts explicitly limited their preemption holdings to the specific circumstances of the programs at issue and noted non-preempted ways (both economic and non-economic) in which States can support particular forms of generation,” Solicitor General Donald Verrilli wrote.

Two related cases on a similar New Jersey program have been put on hold at the Supreme Court, pending a decision in the Maryland case.

3rd in a string of FERC cases

This is the third high-profile case on FERC’s jurisdiction over electricity markets in the last few years, and the three opinions combined are expected to help clarify the boundaries for FERC and states.

“I think we will look back on these series of decisions decades from now as foundational and landmark decisions that allocate responsibility for governing the grid in a very different way than the bright line split of the Federal Power Act would seem to imply,” said Joel Eisen, a law professor at the University of Richmond.

He compared it to early decisions in telecommunications law when courts were grappling with the “rapid evolution of technology and a legal framework that wasn’t designed for the modern technology.”

Last year, the court decided a case looking at whether state antitrust lawsuits against major energy companies were “field pre-empted” by Congress, meaning FERC’s authority over some of the practices broadly barred states from wading into the issue.

In the case, Oneok Inc. v. Learjet Inc., the court ruled 7-2 that the state lawsuits weren’t pre-empted (Greenwire, April 21, 2015).

Earlier this term, the court issued another major decision in two combined cases over FERC’s jurisdiction, FERC v. Electric Power Supply Association and EnerNOC Inc. v. Electric Power Supply Association.

In that 6-2 opinion, the high court upheld FERC’s so-called demand-response rule for energy conservation, finding that it hadn’t stepped on states’ authority even though it affected states’ domain of “retail” electricity sales.

Lawyers tracking that case saw the opinion as a recognition of FERC’s broad regulatory authority, but didn’t see it as a clear signal that the justices will determine that FERC’s authority eclipses that of the state in the Maryland cases (Greenwire, Jan. 26).

The empty chair

For this third energy market case, the late Justice Scalia won’t be on the bench.

He was a vocal participant in the past two cases, penning the dissents in both.

In the Oneok case, Scalia — joined by Chief Justice John Roberts — interpreted the Natural Gas Act to mean that if the government “may regulate a subject, the States may not.” In the majority opinion, he wrote, “the Court smudges this line.”

And in this term’s demand-response case, Scalia said in his dissent that the Federal Power Act barred FERC’s demand-response rule because it waded into states’ authority over retail markets.

Given the lopsided votes in the past two cases and the fact that Scalia was in the minority in both, “I expect that the court should be able to find a majority to decide this case even after Justice Scalia’s death,” Eisen said.

Taken together, “I think these cases suggest that the court is taking a very functionalist approach to these statutes,” said Matthew Christiansen, an energy fellow at New York University School of Law. The justices are looking at energy laws from the 1930s and saying, “What are the basic goals behind these statutes?” and wondering how to “make the statute work in light of the changed industry.”

“I think all four liberals seem to be on board with the functionalist side,” Christiansen said, adding that he thinks the court’s four liberal justices — and perhaps some of the others — will find that the state program isn’t broadly “field pre-empted.” It’s less clear how the court will handle the issue of “conflict pre-emption,” he said, determining whether state laws interfere with federal rules.

Eisen said the case could shake out in a number of different ways.

To say that the state program is broadly pre-empted “would appear to give FERC complete authority over the wholesale markets, and that would be inconsistent” with the demand-response ruling, Eisen said.

A narrow holding could “find that state laws that directly target the prices in the wholesale markets are pre-empted, but would leave room for other state laws.”

Ultimately, Eisen added, “this case is going to go a very long way toward deciding what states can do, what FERC can do.”

Civil asset forfeiture cries out for reform

Monday, February 22nd, 2016


This is the story of how an immigrant worked hard, played by the rules and realized the American dream, only to have the federal government vaporize it.
In 1997, Khalid “Ken” Quran immigrated to the United States and opened a convenience store in Greenville, N.C.. The married father of four spent the next 17 years working seven days a week at the store, raising his family (all of whom graduated from college and became American citizens) and saving money for his retirement.
Then in 2014, the Internal Revenue Service seized Quran’s entire bank account, worth more than $150,000, under civil asset forfeiture laws. Quran was accused of making bank deposits of smaller than $10,000, which the IRS saw as violating “structuring” laws. Such laws are designed to capture individuals and businesses that try to evade bank-reporting laws.
Quran hasn’t even been charged with a crime, much less convicted. But nor has he been given his money back. In fact, according to a recent report by the Institute for Justice, for six months, the IRS has refused to reply to a petition asking it to return its ill-gotten gains to their rightful ownen, Quran.
Quran is not alone in this predicament. His petition includes the case of Randy Sowers, a Maryland dairy farmer from whom the IRS confiscated nearly $30,000 for similar reasons.
The IRS and Justice Department have since reformed their policies on structuring violations. But that hasn’t helped Quran and hundreds of others like him whose lives are on hold because of government predation.
Quran’s story highlights the need for civil asset forfeiture reform. Civil asset forfeiture is an instrument that government uses to seize money or property it suspects of being involved in a crime.
Law enforcement agencies have used it, however, to seize property (not just money but homes, cars, jewelry, electronics and more) on suspicion rather than actual evidence of criminal activity. The targeted individual or business need not be charged or convicted before the feds expropriate their hard-earned fortune, however small. The property is forfeited unless and until the target can prove his or her innocence. This runs counter to the basic constitutional principle of presumption of innocence.
Seized assets are, of course, valuable, which is why law enforcement officials love them. Prosecutors have reportedly lived it up in seized homes and used seized money to pay off student loans. Police departments often spend seized funds on expensive toys.

Supreme Court Justice Sotomayor Supports Practice of Jury Nullification Written by Joe Wolverton, II, J.D.

Monday, February 22nd, 2016

An article published by the Fully Informed Jury Association reports that on February 8, 2016 Supreme Court Justice Sonya Sotomayor (shown) told a group gathered at New York University that she disagreed with the Second Circuit Court’s holding in United States vs. Thomas. In that ruling, the court refused to recognize the legitimacy of jury nullification, the right reserved by members of a jury to exercise the demands of their consciences in refusing to accept a judge’s interpretation of a law.
“There is a place, I think, for jury nullification — finding the balance in that and the role judges should play,” Sotomayor said, commenting on the Second Circuit’s decision to excuse a juror based on a suspicion that he was practicing jury nullification by refusing to find a suspect guilty.
In its ruling, the Second Circuit wrote, “We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent.”


Saturday, February 20th, 2016

Today, the body of Justice Antonin Scalia’s was carried up the steps of the Supreme Court, past the eight sitting justices, and to the Court’s Great Hall. A solemn tradition that dates back to 1873, Scalia’s body will lie in repose surrounded by the marble busts of former chief justices until his funeral this Saturday.

A life long Catholic, Scalia’s funeral service will be held at the Basilica of the National Shrine of the Immaculate Conception in Washington, D.C. In our own remembrance, The Takeaway has asked legal experts and Scalia’s colleagues to reflect on some his best—and worst—moments from his 30 years on the high court.

“[His] best opinion is probably Hamdi v. Rumsfeld, the case dealing with the detention of an American citizen, where both Scalia and Justice Stevens pointed out that the government had two choices: Treason or suspend habeas corpus,” says Mark Graber, professor at the University of Maryland Law School. “It was a nice opinion. It made very clear what the constitutional rules were. I think it was creative, it was something very few people saw, but when you read it it was rather convincing.”

Graber says Scalia’s worst opinion, in his view, was in Obergefell v. Hodges.

“In his last years on the bench, Scalia increasingly turned to insult rather than argument,” says Graber. “Obergefell has a great many insults, but it really does not engage with Justice Kennedy’s arguments. There are weaknesses in the argument, but Scalia preferred to write for the 5 o’clock news rather than engage in a way that lawyers might appreciate.”

Lee Liberman Otis clerked for Justice Scalia after his appointment to the Supreme Court and is now the senior vice president of the conservative Federalist Society. She believes the 1988 decision Morrison v. Olson, which ruled that the Independent Counsel Act was constitutional, was one of Scalia’s finest opinions. A decade later, the case opened the door for Kenneth Starr to investigate President Bill Clinton.

“At the time it looked like a big loss for the separation of powers but, over time, I think it came to be accepted as correct by people across the political spectrum and played a significant role in Congress’ decision not to reauthorize the Independent Counsel statute,” Otis says.

She continues: “The opening of that opinion, which begins, ‘This case is about power,’ then goes on to say that cases like this often come as very small initial intrusions—coming, as it were, as a wolf in sheep’s clothing. But then he goes on to say, in one of the best lines in judicial opinion, I think, ‘But this wolf comes as a wolf.’”

Mary Anne Franks is a professor of law at the University of Miami. She believes that Scalia was at his best when he was ruling on defendants rights.

“Among the best: Scalia’s dissenting opinion in the 2000 case Dickerson V. The United States, which declined to allow Congress to overrule the Court’s famous Miranda decision,” she says. “However one feels about the importance or necessity of Miranda rights, the argument that they are required by the Constitution is shaky at best. Scalia ruthlessly pointed out how no less an authority than Chief Justice Rehnquist, the author of the majority opinion, had previously stated that Miranda rights were not constitutionally required.”

Franks argues that Scalia was at his worst when he was ruling on domestic violence protections, specifically in the 2005 case Castle Rock v. Gonzales.

“[It] shows the deeply unprincipled side of his much celebrated textualism,” she says. “Jessica Gonzales argued that her local police department violated her constitutional rights by failing to enforce the plain terms of the protective order she had against her estranged husband. The police ignored her repeated pleas for help after her husband abducted the couple’s three children, who were later found dead in his truck.”

She continues: “Scalia maintained that the words ‘shall arrest’ in the protective order did not in fact mean ‘shall arrest’—that the police were not obligated to act. This opinion was devastating for domestic violence victims, as it meant that protection orders—one of the only forms of legal protection that victims have against abusers—were quite literally not worth the paper they were printed on.”

In 1996, the court ruled on the no-women policy at the Virginia Military Institute. Michael McConnell, a former circuit court judge on the U.S. Court of Appeals for the 10th Circuit and a current Stanford Law School professor, says cited United States v. Virginia is one of Scalia’s best opinions. McConnell specifically points to this passage written by Scalia:

“Much of the Court’s opinion is devoted to deprecating the closed mindedness of our forebearers with regard to women’s education, and indeed with regard to the treatment of women in areas that have nothing to do with education.”

Scalia later continued: “So to counterbalance the Court’s criticism of our ancestors, let me say a word in their praise: They left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter majoritarian preferences of the society’s law trained elite) into our basic law.”

McConnell says his least favorite Scalia opinion is from the 1990 case Employment Division v. Smith.

“It pays very little attention to the text of the Free Exercise Clause of the First Amendment, and absolutely no attention to its history, and it plays fast and loose with the precedent,” McConnell says. “But that only goes to show that Justice Scalia had clear understandings of how to interpret the Constitution, [something] that we can hold up and say, on some of occasions, that we disagree with how he applied them.

McConnell continues: “That’s certainly better than justices who have no clear approach to begin with, other than to tell us the result that they want to see. Justices who just have a result that they want to see are never wrong by their own opinions, so to be able to say that Justice Scalia got one wrong by his own lights is actually quite a compliment.”


Friday, February 19th, 2016

Additional in-person attorney eFiling training sessions have been scheduled in Maysville.

eFiling is not mandatory, but attorneys wishing to eFile must attend training in order to be authorized to file. The in-person training sessions are free and have been approved by the Kentucky Bar Association for 2.0 CLE credit hours. A paralegal, secretary or other support staff is welcome to register along with an attorney. To view training times and register, please visit

If you have questions, please contact


Friday, February 19th, 2016

Toxicology Laboratories, Inc.
11726 West Dodge Road
Omaha, Nebraska 68154, USA
P: (402) 935-0401
F: (402) 504-9999

February 18, 2016

Dear Attorney:

Dr. John Vasiliades, PhD, DABFT, DABCC, laboratory director and chief consultant at Toxicology Laboratories, Inc., of Omaha, Nebraska, will teach a day course in forensic toxicology for attorneys titled “Forensic Toxicology for Attorneys 2016: Alcohol, Drugs, and How to Use an Expert” in Cincinnati, Ohio.

The course focuses on: (a) urine analysis alcohol and drug testing; (b) blood and breath alcohol testing; (c) hair drug testing; (d) National Academy of Sciences reports; (e) alcohol and drug litigation package materials; (f) Melendez-Diaz v. Massachusetts (2009), Bullcoming v. New Mexico (2011), Nebraska v. Richardson (2013), Cincinnati v. Ilg (2014); (g) discovery requests; (h) trial preparation.

The course will be held on Friday, May 20, 2016, from 9:00 AM to 5:00 PM Eastern Daylight Time at the Hilton Cincinnati Airport in Cincinnati, Ohio.

This course is approved for 7.25 Continuing Legal Education (“CLE”) credit hours in Ohio. This course is approved for CLE credit in these states: Alabama (7.20); Alaska (7.00) (0.50 ethics); Arizona (7.00); Arkansas (7.25); California (7.00) (1.25 ethics); Delaware (7.30) (0.50 ethics); District of Columbia (7.00); Florida (9.00 general & 7.00 criminal trial law certification credits); Georgia (7.50) (1.00 ethics & 1.00 trial); Hawaii (7.00) (1.25 ethics) (not approved, qualifies through reciprocity); Idaho (Pending); Indiana (7.20); Kansas (8.00); Kentucky (6.75); Maine (7.10) (0.50 ethics); Mississippi (7.00) (0.50 ethics); Missouri (8.00); Montana (7.00) (0.50 ethics); New Hampshire (7.00); New Jersey (Pending); North Carolina (Pending); North Dakota (7.25) (0.50 ethics); Ohio (7.25); Oklahoma (8.50); Pennsylvania (7.00) (0.50 ethics); South Carolina (7.16); Tennessee (7.25); Texas (6.75); Utah (Pending); Vermont (7.25); Virginia (Pending); Washington (7.00); West Virginia (8.60) (0.60 ethics); Wisconsin (7.00); Wyoming (7.00) (0.50 ethics).

The day course in forensic toxicology will be held at:

Hilton Cincinnati Airport
7373 Turfway Road
Florence, Kentucky 41042-1356
P: (859) 371-4400
*Special sleeping room rate of $95.00 per night available under “Tox Labs, Inc.” group.
*Free self-parking; free hotel shuttle to and from Cincinnati / N. Kentucky International Airport (CVG).

Dr. Vasiliades possesses over thirty (30) years of practical toxicology and clinical chemistry experience, and has testified or provided litigation support in over one thousand (1000) legal cases.

Dr. Vasiliades is a Diplomat of the American Board of Forensic Toxicology (DABFT) (1993) and a Diplomat of the American Board of Clinical Chemistry (DABCC) (1980).

The unique and intensive day course in forensic toxicology shows the litigator how to effectively utilize a forensic toxicology expert in criminal and civil court cases in order to prevail.

An assortment of academic articles, case law, and technical course materials, including alcohol and drug litigation packages from actual cases, will supplement the course instruction and may prove useful to the litigator in his or her legal practice.

The course enrollment fee is Two Hundred Seventy Five Dollars ($275.00) for attorneys, and Two Hundred Dollars ($200.00) for new attorneys admitted to practice law in their respective jurisdiction one (1) year prior to the date of course enrollment.

The course enrollment fee includes a seat at the course, all course materials, refreshments, and a personalized certificate of completion for CLE.

Attorneys can register for the course with a credit card online or over the telephone (402) 935-0401. Or, attorneys can mail a completed registration form and check payment to our office.

Attorneys that cannot attend the course but are interested in the content of the course can purchase a prerecorded video presentation of the course on DVD with supplemental course materials on CD for a fee. The DVD and CD materials are approved for CLE credit in several jurisdictions.

Attorneys that want to attend the course at another location can access our full-year course schedule at

Please contact Dr. Vasiliades directly with questions at (402) 935-0401 or

Please join us in beautiful Cincinnati, Ohio on Friday, May 20, 2016 for this special event.


Evan Vasiliades
Toxicology Laboratories, Inc.