Archive for September, 2008

Congress considers allowing Supreme Court Appeals to members of U.S. Military Convicted of Crimes

Tuesday, September 30th, 2008

by Dan Slater   September 30, 2008 Wall St. Journal blog
Under what circumstances should military members who’ve been convicted of crimes be allowed to file cert petitions with the Supreme Court? That issue — largely upstaged by the congressional vagaries on a certain bailout bill — is now going to the Senate, reports the NLJ.

Over the weekend, the House of Representatives approved, by voice vote, legislation that would open the doors of the Supreme Court to certain petitions by military service members convicted of crimes. Under current law, service members have a direct appeal to the Supreme Court only certain conditions, such as when the U.S. Court of Appeals for the Armed Forces has conducted a mandatory review (death penalty and certified cases) or granted discretionary review of a petition. But if the CAAF has denied a petition for review or a petition for a writ of extraordinary relief, the NLJ explains, Supreme Court review may be obtained only through collateral review, for example, a writ of habeas corpus.

The “Equal Justice for our Military Act” would change that, permitting service members to file high court petitions when the CAAF denies review of their case or their petitions for a writ of extraordinary relief.

“It is unjust to deny the members of our Armed Forces access to our system of justice as they fight for our freedom around the world,” said Susan Davis, D-Calif., the bill’s chief sponsor, at a recent House debate.

On the topic of Supreme Court access, Norbert Basil MacLean III, a dual American-Australian citizen and a U.S. Navy veteran who’s lobbied Congress on behalf of the legislation, recently wrote in a letter to the L.A. Times:

The cornerstone of a true democracy is due process. Currently, our active-duty troops under the [Uniform Code of Military Justice] are treated like second-class citizens when it comes to such due process. It is shameful that even enemy combatants have access to our highest court, but those serving to protect and defend us are shut out. . . It is disingenuous for us as a nation to send our uniformed citizens off to faraway countries to promote our democratic way without affording them a fundamental right of democracy . . .


Remember the Great Depression? It is interesting to review what happened then to understand what can happen today.

Tuesday, September 30th, 2008

 By Stan Billingsley  LawReader Senior Editor                Sept. 30, 2008
The following economic tutorial shows that in the run up to the Great Depression of the 1930’s  we had many of the same conditions we are seeing now in our economy. The number one issue then was loss of liquidity in the credit markets.  That is the problem the Paulson plan seeks to relieve.
The Government did not act to prevent bank failures in the Great Depression, as Hoover stood on doctrinaire grounds and allowed the Free Market to work itself out. This same doctrine was upheld by the House of Representatives yesterday when they failed to pass the Bailout bill.
  The Bailout plan by Treasury Secretary Hank Paulson is an attempt to intervene quickly to prevent an economic collapse similar to that of the 1930’s.
We don’t know if the Paulsen plan is the right one, but we know from history that the Government did very little to save banks, and that in the end lack of consumer confidence in our banking and investment systems caused the problem to snowball. 
Many protections (such as insured bank deposits) are in effect that so far has limited the effect on the consumer, of the half dozen bank failures to date. Whether this is enough to continue to uphold the consumer’s faith in our banking system is debatable.  The reserves held by the government to insure depositors money up to $100,000 per account, is not a endless supply of funds….it can be depleted under a number of scenarios.
Wikepedia excerpts:
Recession cycles are thought to be a normal part of living in a world of inexact balances between supply and demand. What turns a usually mild and short recession or “ordinary” business cycle into a great depression is a subject of debate and concern. Scholars have not agreed on the exact causes and their relative importance.
The search for causes is closely connected to the question of how to avoid a future depression, and so the political and policy viewpoints of scholars are mixed into the analysis of historic events eight decades ago. The even larger question is whether it was largely a failure on the part of free markets or largely a failure on the part of governments to curtail widespread bank failures, the resulting panics, and reduction in the money supply.
Those who believe in a large role for governments in the economy believe it was mostly a failure of the free markets and those who believe in free markets believe it was mostly a failure of government that compounded the problem.
Current theories may be broadly classified into three main points of view.
First, there is orthodox classical economics: monetarist, Austrian Economics and neoclassical economic theory, all of which focus on the macroeconomic effects of money supply and the supply of gold which backed many currencies before the Great Depression, including production and consumption.
Second, there are structural theories, most importantly Keynesian, but also including those of institutional economics, that point to underconsumption and overinvestment (economic bubble), malfeasance by bankers and industrialists, or incompetence by government officials. The only consensus viewpoint is that there was a large-scale lack of confidence. Unfortunately, once panic and deflation set in, many people believed they could make more money by keeping clear of the markets as prices got lower and lower and a given amount of money bought ever more goods.
Third, there is the Marxist critique of political economy. This emphasizes contradictions within capital itself (which is viewed as a social relation involving the appropriation of surplus value) as giving rise to an inherently unbalanced dynamic of accumulation resulting in an overaccumulation of capital, culminating in periodic crises of devaluation of capital. The origin of crisis is thus located firmly in the sphere of production, though economic crisis can be aggravated by problems of disproportionality between spheres of production and the underconsumption of the masses.
Debt is seen as one of the causes of the Great Depression, particularly in the United States. Macroeconomists including Ben Bernanke, the current chairman of the U.S. Federal Reserve Bank, have revived the debt-deflation view] of the Great Depression originated by Arthur Cecil Pigou and Irving Fisher:] in the 1920s, American consumers and businesses relied on cheap credit, the former to purchase consumer goods such as automobiles and furniture, and the latter for capital investment to increase production. This fueled strong short-term growth but created consumer and commercial debt. People and businesses who were deeply in debt when price deflation occurred or demand for their product decreased often risked default. Many drastically cut current spending to keep up time payments, thus lowering demand for new products. Businesses began to fail as construction work and factory orders plunged.
Massive layoffs occurred, resulting in US unemployment rates of over 25% by 1933. Banks which had financed this debt began to fail as debtors defaulted on debt and depositors attempted to withdraw their deposits en mass, triggering multiple bank runs. Government guarantees and Federal Reserve banking regulations to prevent such panics were ineffective or not used. Bank failures led to the loss of billions of dollars in assets. Outstanding debts became heavier, because prices and incomes fell by 20–50% but the debts remained at the same dollar amount. After the panic of 1929, and during the first 10 months of 1930, 744 US banks failed. (In all, 9,000 banks failed during the 1930s). By 1933, depositors had lost $140 billion in deposits.
Bank failures snowballed as desperate bankers called in loans which the borrowers did not have time or money to repay. With future profits looking poor, capital investment and construction slowed or completely ceased. In the face of bad loans and worsening future prospects, the surviving banks became even more conservative in their lending. Banks built up their capital reserves and made fewer loans, which intensified deflationary pressures. A vicious cycle developed and the downward spiral accelerated. This kind of self-aggravating process may have turned a 1930 recession into a 1933 great depression
Monetarists, including Milton Friedman and current Federal Reserve System chairman Ben Bernanke, argue that the Great Depression was caused by monetary contraction, the consequence of poor policymaking by the American Federal Reserve System and continuous crisis in the banking system. In this view, the Federal Reserve, by not acting, allowed the money supply as measured by the M2 to shrink by one-third from 1929 to 1933. Friedman argued that the downward turn in the economy, starting with the stock market crash, would have been just another recession. The problem was that some large, public bank failures, particularly that of the Bank of the United States, produced panic and widespread runs on local banks, and that the Federal Reserve sat idly by while banks fell. He claimed that, if the Fed had provided emergency lending to these key banks, or simply bought government bonds on the open market to provide liquidity and increase the quantity of money after the key banks fell, all the rest of the banks would not have fallen after the large ones did, and the money supply would not have fallen as far and as fast as it did. With significantly less money to go around, businessmen could not get new loans and could not even get their old loans renewed, forcing many to stop investing. This interpretation blames the Federal Reserve for inaction, especially the New York branch.
One reason why the Federal Reserve did not act to limit the decline of the money supply was regulation. At that time the amount of credit the Federal Reserve could issue was limited by laws which required partial gold backing of that credit. By the late 1920s the Federal Reserve had almost hit the limit of allowable credit that could be backed by the gold in its possession. This credit was in the form of Federal Reserve demand notes. Since a “promise of gold” is not as good as “gold in the hand”, during the bank panics a portion of those demand notes were redeemed for Federal Reserve gold. Since the Federal Reserve had hit its limit on allowable credit, any reduction in gold in its vaults had to be accompanied by a greater reduction in credit. Several years into the Great Depression, the private ownership of gold was declared illegal, reducing the pressure on Federal Reserve gold.

Inequality of wealth and income

Marriner S. Eccles, who served as Franklin D. Roosevelt‘s Chairman of the Federal Reserve from November 1934 to February 1948, detailed what he believed caused the Depression in his memoirs, Beckoning Frontiers (New York, Alfred A. Knopf, 1951)[21]:
As mass production has to be accompanied by mass consumption, mass consumption, in turn, implies a distribution of wealth — not of existing wealth, but of wealth as it is currently produced — to provide men with buying power equal to the amount of goods and services offered by the nation’s economic machinery. [Emphasis in original.]
Instead of achieving that kind of distribution, a giant suction pump had by 1929-30 drawn into a few hands an increasing portion of currently produced wealth. This served them as capital accumulations. But by taking purchasing power out of the hands of mass consumers, the savers denied to themselves the kind of effective demand for their products that would justify a reinvestment of their capital accumulations in new plants. In consequence, as in a poker game where the chips were concentrated in fewer and fewer hands, the other fellows could stay in the game only by borrowing. When their credit ran out, the game stopped.
That is what happened to us in the twenties. We sustained high levels of employment in that period with the aid of an exceptional expansion of debt outside of the banking system. This debt was provided by the large growth of business savings as well as savings by individuals, particularly in the upper-income groups where taxes were relatively low. Private debt outside of the banking system increased about fifty per cent. This debt, which was at high interest rates, largely took the form of mortgage debt on housing, office, and hotel structures, consumer installment debt, brokers’ loans, and foreign debt. The stimulation to spending by debt-creation of this sort was short-lived and could not be counted on to sustain high levels of employment for long periods of time. Had there been a better distribution of the current income from the national product — in other words, had there been less savings by business and the higher-income groups and more income in the lower groups — we should have had far greater stability in our economy.
Had the six billion dollars, for instance, that were loaned by corporations and wealthy individuals for stock-market speculation been distributed to the public as lower prices or higher wages and with less profits to the corporations and the well-to-do, it would have prevented or greatly moderated the economic collapse that began at the end of 1929.
The time came when there were no more poker chips to be loaned on credit. Debtors thereupon were forced to curtail their consumption in an effort to create a margin that could be applied to the reduction of outstanding debts. This naturally reduced the demand for goods of all kinds and brought on what seemed to be overproduction, but was in reality underconsumption when judged in terms of the real world instead of the money world. This, in turn, brought about a fall in prices and employment.
Unemployment further decreased the consumption of goods, which further increased unemployment, thus closing the circle in a continuing decline of prices. Earnings began to disappear, requiring economies of all kinds in the wages, salaries, and time of those employed.
And thus again the vicious circle of deflation was closed until one third of the entire working population was unemployed, with our national income reduced by fifty per cent, and with the aggregate debt burden greater than ever before, not in dollars, but measured by current values and income that represented the ability to pay. Fixed charges, such as taxes, railroad and other utility rates, insurance and interest charges, clung close to the 1929 level and required such a portion of the national income to meet them that the amount left for consumption of goods was not sufficient to support the population.

House Rejects Bailout Package, 228-205

Monday, September 29th, 2008

In a moment of historic drama in the Capitol and on Wall
Street, the House of Representatives voted on Monday to
reject a $700 billion rescue of the financial industry. 


Attempts are being discussed to attempt another vote likely to come early next week.

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October term of U.S. Supreme Court term set to begin

Monday, September 29th, 2008

Court may hear cases on federal preemption of local zoning laws, employment discrimination, search and seizure and sentencing

KIMBERLY ATKINS  Lawyers USA   September 29, 2008

WASHINGTON — The U.S. Supreme Court could decide Monday whether it will hear Baltimore County’s appeal of a lower court ruling that the county violated the federal Natural Gas Act by banning the construction of liquefied natural gas terminals in coastal areas. AES Corp., which seeks to build an LNG terminal at Sparrows Point, has challenged the legality of the county’s prohibition.

U.S. District Court Judge Richard D. Bennett of Maryland had upheld the county’s ban. But the 4th U.S Circuit Court of Appeals reversed that decision, saying the federal law pre-empts the county’s prohibition and gives the Federal Energy Regulatory Commission exclusive authority over the placement of LNG terminals.

The high court will hold a conference today at which the justices will consider whether to accept for argument appeals submitted to them this summer, including Baltimore County’s.

The Court’s docket for the October 2008 term is far from complete, but already a number of highly anticipated cases are set to be argued and decided.

The cases deal with a number of topics of interest to practicing attorneys, including federal pre-emption, employment law, criminal procedure, sentencing and punitive damages.

Pre-emption and punitives

This term, the Court is set to determine whether plaintiffs have a right to sue pharmaceutical and tobacco companies over the safety of their products.

In Wyeth v. Levine, 06-1249, the Court will revisit the issue of whether the Food and Drug Administration’s authority precludes state tort actions — a decision that will determine if tort claims against drug companies seeking billions of dollars in damages in can proceed in state court.

The plaintiff in the case, Diana Levine, lost an arm to gangrene after an injection of the nausea drug Phenergan. She claims that method of using the drug wasn’t reasonably safe under state law. The drug company contends that the claims are pre-empted by the federal Food, Drug and Cosmetic Act. Oral arguments are schedule for Nov. 3.

Cecelia Prewett, a spokeswoman for the trial lawyers’ group American Association for Justice, said the state law claims should be allowed.

“Congress has been clear that it never intended to pre-empt state law regarding either drugs or devices,” Prewett said.

But Randall Lutter, the FDA’s deputy commissioner for policy, recently told members of Congress that limits on state-law tort claims are necessary in order to ensure patient safety.

He said that the agency undergoes a careful risk-benefit analysis for its approved drugs, and can help create a single standard for drug makers. If states intervene, companies will be less likely to market potentially life-saving drugs for fear of being sued.

“The FDA is the scientific regulatory body that is publicly accountable for effectively executing its mission of protecting and promoting the public health,” said Lutter, echoing the argument put forth in the amicus brief submitted on the agency’s behalf in support of Wyeth. “[State] court actions that undermine FDA decisions may have the consequence of serving to hinder, rather than help, public health.”

The case comes after last term’s decision in Riegel v. Medtronic, 128 S.Ct. 999, which held that federal law pre-empted state claims alleging tortious use of medical devices. Signaling the importance the plaintiffs’ bar has placed on the Levine case, attorneys from the legal advocacy group Public Citizen — which handled the Medtronic case before the high Court — were replaced in April by veteran Supreme Court litigator David Frederick. Frederick’s fees are being paid by the AAJ.

The first day of oral arguments, Oct. 6, will feature another highly anticipated pre-emption case: Altria Group v. Good, No. 07-562. In that case, the Court will consider whether plaintiffs — specifically a class of Maine smokers — can bring state law consumer protection claims against Philip Morris’s parent company.

The plaintiffs allege the defendant deceptively marketed “light” and “lowered tar nicotine” cigarettes they claim are just as unhealthy. The defendant argues these claims are pre-empted by the Federal Cigarette Labeling and Advertising Act of 1965.

In another case arising from tobacco litigation, Philip Morris USA v. Williams, No. 07-1216, the Court will consider whether a punitive damages award that is nearly 100 times higher than the compensatory damages award may be justified by the reprehensibility of a defendant’s conduct, despite the constitutional requirement that punitive damages be reasonably related to the plaintiff’s harm.


After two terms in which the Court issued a number of pivotal employment law decisions, the justices are poised to tackle more this term.

In Crawford v. Nashville and Davidson County, No. 06-1595, the Court will consider whether the anti-retaliation language in Title VII protects workers from dismissal for voluntarily providing information about alleged discrimination as part of an internal company investigation.

Last term the Court handed down rulings expanding the scope of retaliation claims under the Age Discrimination in Employment Act and §1981.

Attorneys general in 19 states and Puerto Rico filed amicus briefs in the Crawford case, urging the Court to allow such retaliation claims.

The move was praised by Marsha Greenberger, co-president of the National Women’s Law Center.

“For women to be truly protected from sexual harassment, they must receive effective protection against retaliation,” said Greenberger. “It is crucial that the Supreme Court reverse the lower court’s decision in this case.”

But some business and employer groups have urged the Court that a ruling in favor of such retaliation claims would hamstring employers’ efforts to investigate sexual harassment by putting them at a higher risk of lawsuits.

Francisco M. Negrón, Jr., general counsel for the National School Boards Association, said such a ruling is unnecessary and would have a serious effect on school districts, which collectively make up the country’s largest employer.

“Extending the protection of Title VII to those merely participating in an investigation is a redundant and unnecessary burden to place on school districts,” said Negrón, whose group submitted an amicus brief. “The law protects those employees who complain of harassment and policies are already in place in school districts across the country to ensure such protection.”

In another employment case, AT&T v. Hulteen, No. 07-543, the Court will consider whether pregnancy leave taken before the passage of the Pregnancy Discrimination Act of 1978 must be taken into account in the calculation of pension and other employment benefits.

In Huber v. Wal-Mart Stores, No. 07-480, the Court will determine whether the Americans with Disabilities Act requires employers to reassign a disabled employee to a vacant, equivalent position for which he or she is qualified, or whether it merely allows the employee to apply and compete with other applicants for the vacant spot.

Search, seizure and sentencing

It will be a busy term for criminal cases as well, with the Court set to take on a host of Fourth Amendment search and seizure cases.

In one case — Pearson v. Callahan, No. 07-751 — the Court took to the unusual step of asking the parties to argue whether past precedent should be overturned.

That case raises the question of whether police officers may enter a home without a warrant immediately after an undercover informant buys drugs inside, and whether qualified immunity protects officers from civil rights claims arising from such searches.

In addition, the Court asked the parties to argue whether it should overrule the 2001 decision in Saucier v. Katz, 533 U.S. 194, and thus create a new test for determining when qualified immunity may be asserted.

The Court will also take on a number of Fourth Amendment cases involving automobiles.

In Arizona v. Gant, No. 07-542, the Court will consider whether the Fourth Amendment requires law enforcement officers to demonstrate a threat to their safety or a need to preserve evidence related to the crime before conducting a warrantless search of a car after the occupants have been detained and removed from the vehicle.

In Arizona v. Johnson, No. 07-1122, the justices will decide whether an officer conducting a pat-down after a stop for a minor traffic violation can search a passenger he believes to be armed and dangerous, even if he has no basis for believing the passenger is committing, or has committed, a criminal offense.

In Herring v. U.S., No. 07-513, the Court will consider whether evidence must be suppressed when an officer obtained the evidence in an arrest and car search relying solely upon seemingly credible —but factually erroneous — information negligently provided by another law enforcement agent.

In a case that will address the scope of the Confrontation Clause, Melendez-Diaz v. Massachusetts, No. 07-591, the Court will determine if lab reports prepared for trial by state forensic analysts constitute “testimonial” evidence.

The Court will also take up a number of sentencing issues this term, including whether the failure to report to prison is a “violent felony” qualifying for an increased sentence under the Armed Career Criminal Act (Chambers v. U.S., No. 06-11206) and whether facts necessary for imposing consecutive sentences must be found by a jury or admitted by the defendant (Oregon v. Ice, No. 07-901).

Daily Record reporters Steve Lash and Danielle Ulman contributed to this story. Kimberly Atkins writes for Lawyers USA, a sister publication of The Daily Record.

Are you familiar with the legal term EJUSDEM GENERIS…this may be useful someday.

Sunday, September 28th, 2008

 There are hundreds of legal terms defined and discussed in LawReaders DOCTRINES & RULES   LawReader subscribers can find this resource on the left hand column of the home page.


One of the rules discussed is Ejusdem Generis:
Gries v. Louisville-Jefferson County Metropolitan Government, No. 2007-CA-001416-MR (Ky. App. 7/11/2008) (Ky. App., 2008)
The rule of ejusdem generis is used to determine (and usually to limit) the scope of a general term when it follows a list of specific objects. For example, KRS 189.020, which states as follows:
        Every vehicle when on a highway shall be so equipped as to make a minimum of noise, smoke or other nuisance, to protect the rights of other traffic, and to promote the public safety. Application of the rule of ejusdem generis meant that “other nuisance” “should be interpreted as including only those nuisances of a similar kind as noise and smoke.” Garcia, 185 S.W.3d at 664. On that basis, the court concluded that the term “other nuisance” did not encompass a cracked windshield.
Gwen Billingsley

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Bailout bill advances – See current draft

Sunday, September 28th, 2008
The federal government would provide as much as $700 billion in a far-reaching plan to rescue the nation’s troubled financial system, according to a bill posted online by Democratic lawmakers. House Speaker Nancy Pelosi said she hopes the House will take up the bill on Monday.
See pdg draft of the 110 page bill, that last week was only three pages long:

Police charge flatulent DUI suspect for Battery for passing gas and fanning it towards a policeman.

Saturday, September 27th, 2008


We don’t make this stuff up…..


CHARLESTON, West Virginia  -(AP) – A West Virginia man accused of passing gas and fanning it toward a police officer no longer faces a battery charge.


The Kanawha County prosecutor’s office requested that the charge be dropped against 34-year-old Jose Cruz.


According to a criminal complaint, Cruz passed gas and made a fanning motion toward patrolman T.E. Parsons after being taken to the police station for a Breathalyzer test.

Cruz denies fanning the gas and says that his request to use a restroom when first arriving at the station was denied.


An assistant says Magistrate Jack Pauley signed a motion to dismiss the charge Thursday.

Cruz, who was arrested Tuesday, still faces driving under the influence and other charges.


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Survey USA poll on Kentucky Senate Race – Another poll shows dead heat

Saturday, September 27th, 2008


Sept. 28- 3:00 p.m. –
LawReader has just learned from a source very close to the Lunsford campaign that a poll will be published Sunday Sept. 29 showing a dead heat in the Kentucky senatorial election. 
Week of Sept. 24-

Dramatic Shift in McConnell’s KY Senate Re-Elect; Women, Voters Focused on Economy, Move to Democrat Lunsford:

42 days until votes are counted in the race for United States Senator from Kentucky, incumbent Republican Mitch McConnell’s once double-digit lead is eroding, according to this SurveyUSA poll conducted exclusively for WHAS-TV Louisville, WLEX-TV Lexington, and WCPO-TV Cincinnati. Today, it’s McConnell 49%, Lunsford 46%. Compared to an identical SurveyUSA poll released six weeks ago, Lunsford is up 6 points, McConnell is down 3.
Interviews for this survey occurred at a time of economic turbulence. 6 in 10 voters tell SurveyUSA they are focused on the economy, ahead of all other issues. Among voters focused on the economy, McConnell went from a 6-point lead 6 weeks ago, to a 9-point deficit today, a 15-point swing to the Democrat. Lunsford, a Louisville businessman who ran in the Democratic primaries for Kentucky Governor in 2003 and 2007, also gained ground among women, where 6 weeks ago McConnell led by 11, but today the contest is tied. In Western KY, McConnell had led by 20 points, now leads by 11. In North Central KY, McConnell had led by 12, now leads by 2. In Eastern KY, McConnell had led by 26, now leads by 11. Among voters 50+, McConnell’s lead has been cut by two-thirds. Among wealthier voters, McConnell’s lead has been cut in half.

To put these numbers into context, it is critical to note that the identical survey that polled Kentucky voters on the US Senate race also asked about the Presidential contest. The same respondents rethinking McConnell are sticking with John McCain. McCain led by 18 points 6 weeks ago, leads by 19 points today. At a time when McConnell is struggling with women, McCain is gaining ground with women. Complete SurveyUSA results of McCain-Obama in Kentucky are here.
Filtering: SurveyUSA interviewed 900 Kentucky adults 09/21/08 through 09/22/08. Of the adults, 835 identified themselves as registered voters. Of them, 672 were determined by SurveyUSA to be likely to vote in the general election on 11/04/08.

Conservative judges fault Scalia opinion on guns

Saturday, September 27th, 2008

WASHINGTON (AP) — Supreme Court Justice Antonin Scalia is no stranger to criticism. He gives as good as he gets. 

But two recent critiques of his opinion in the landmark decision guaranteeing people the right keep guns at home for self-defense are notable because they come from respected fellow conservative federal judges. 

The judges, J. Harvie Wilkinson of the 4th U.S. Circuit Court of Appeals in Richmond, Va., and Richard Posner of the 7th U.S. Circuit Court of Appeals in Chicago, take Scalia to task for engaging in the same sort of judicial activism he regularly disdains. 

Wilkinson was interviewed by President Bush in 2005 for a Supreme Court vacancy. His article strongly suggests that the 5-4 decision in Heller v. District of Columbia would have come out differently if he had been chosen for the court. Bush’s appointees to the high court, Chief Justice John Roberts and Justice Samuel Alito, joined Scalia’s opinion. 

The district’s elected government is trying to figure out how to maintain restrictions on gun possession in the wake of the court ruling that struck down its 32-year-old ban on handguns. The D.C. council voted this month to let residents own most semiautomatic pistols and eliminate a requirement that guns be stored unloaded or secured with trigger locks. 

Congressional critics said the city did not go far enough. The House passed a bill, backed by the National Rifle Association, that broadens the rights of city residents to buy and own firearms. The Senate has yet to act. 

Wilkinson said elected officials are in a better position to determine gun laws than the courts. He compared the gun case to Roe v. Wade, the abortion rights decision that conservatives consider among the court’s worst. 

“Heller represents a triumph for conservative lawyers. But it also represents a failure — the Court’s failure to adhere to a conservative judicial methodology in reaching its decision,” Wilkinson wrote in an article to be published next year in the Virginia Law Review. “In fact, Heller encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts.” 

The guns case was easily the most significant opinion Scalia has written in his 22 years on the court. Yet Wilkinson faults the justice for falling victim to the same criticism Scalia leveled in a scathing dissent in the court’s 1992 decision that reaffirmed the right to an abortion. 

“I cannot help but recall Justice Scalia’s lament … that ‘by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish,’” Wilkinson said, quoting from Scalia’s dissent. 

“Yet, sixteen years later, the court now takes an issue about which the nation is deeply divided and narrows democratic outlets, overlooks regional differences, and imposes a rigid national rule,” he said. 

Posner, writing in The New Republic last month, said of Scalia’s work in Heller: “The decision … is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology.” 

He called on the justices to practice “judicial modesty” and resist the temptation to put a glaze of history on decisions that reflect their personal values and policy preferences. “It would go some distance toward depoliticizing the Supreme Court,” said Posner, a prolific writer who frequently comments on key issues. 

Scalia has said on many occasions that ideology does not enter into his decisions. Instead, he is a proponent of determining what the words of the Constitution meant when they were written, a concept called originalism. 

Just this past week, speaking at the University of Montana, Scalia repeated his claim that the court is divided between justices who believe in originalism and those such as Justice Stephen Breyer, who believe that judges sometimes must be guided by more than the language of laws, if the words are ambiguous or embody a value that must be applied to specific circumstances. 

“It’s not a conservative-liberal fight on the court,” Scalia said. “It really isn’t. It has to do with what your view of the Constitution is.” 

In the guns case, however, Justice John Paul Stevens performed his own analysis of the original meaning of the Second Amendment and dissented, suggesting that divining the meaning of the amendment when it was written is a close call. 

Judges, Wilkinson said, “should be modest in their ambitions and overrule the results of the democratic process only where the constitution unambiguously commands it.” 


New York Times Article Published in 1999 details beginning of housing sub prime problem

Friday, September 26th, 2008
 This article was originally published on September 30, 1999 “In a move that could help increase home ownership rates among minorities

and low-income consumers, the Fannie Mae Corporation is easing the

credit requirements on loans that it will purchase from banks and other


The action, which will begin as a pilot program involving 24 banks in 15

markets — including the New York metropolitan region — will encourage

those banks to extend home mortgages to individuals whose credit is

generally not good enough to qualify for conventional loans. Fannie Mae

officials say they hope to make it a nationwide program by next spring.

Fannie Mae, the nation’s biggest underwriter of home mortgages, has been

under increasing pressure from the Clinton Administration to expand

mortgage loans among low and moderate income people and felt pressure

from stock holders to maintain its phenomenal growth in profits.

In addition, banks, thrift institutions and mortgage companies have been

pressing Fannie Mae to help them make more loans to so-called subprime

borrowers. These borrowers whose incomes, credit ratings and savings are

not good enough to qualify for conventional loans, can only get loans

from finance companies that charge much higher interest rates –

anywhere from three to four percentage points higher than conventional


”Fannie Mae has expanded home ownership for millions of families in the

1990′s by reducing down payment requirements,” said Franklin D. Raines,

Fannie Mae’s chairman and chief executive officer. ”Yet there remain

too many borrowers whose credit is just a notch below what our

underwriting has required who have been relegated to paying

significantly higher mortgage rates in the so-called subprime market.”

Demographic information on these borrowers is sketchy. But at least one

study indicates that 18 percent of the loans in the subprime market went

to black borrowers, compared to 5 per cent of loans in the conventional

loan market.

In moving, even tentatively, into this new area of lending, Fannie Mae

is taking on significantly more risk, which may not pose any

difficulties during flush economic times. But the government-subsidized

corporation may run into trouble in an economic downturn, prompting a

government rescue similar to that of the savings and loan industry in

the 1980′s.

”From the perspective of many people, including me, this is another

thrift industry growing up around us,” said Peter Wallison a resident

fellow at the American Enterprise Institute. ”If they fail, the

government will have to step up and bail them out the way it stepped up

and bailed out the thrift industry.”


Under Fannie Mae’s pilot program, consumers who qualify can secure a

mortgage with an interest rate one percentage point above that of a

conventional, 30-year fixed rate mortgage of less than $240,000 — a

rate that currently averages about 7.76 per cent. If the borrower makes

his or her monthly payments on time for two years, the one percentage

point premium is dropped.

Fannie Mae, the nation’s biggest underwriter of home mortgages, does not

lend money directly to consumers. Instead, it purchases loans that banks

make on what is called the secondary market. By expanding the type of

loans that it will buy, Fannie Mae is hoping to spur banks to make more

loans to people with less-than-stellar credit ratings.

Fannie Mae officials stress that the new mortgages will be extended to

all potential borrowers who can qualify for a mortgage. But they add

that the move is intended in part to increase the number of minority and

low income home owners who tend to have worse credit ratings than

non-Hispanic whites.

Home ownership has, in fact, exploded among minorities during the

economic boom of the 1990′s. The number of mortgages extended to

Hispanic applicants jumped by 87.2 per cent from 1993 to 1998, according

to Harvard University’s Joint Center for Housing Studies. During that

same period the number of African Americans who got mortgages to buy a

home increased by 71.9 per cent and the number of Asian Americans by

46.3 per cent.

 In contrast, the number of non-Hispanic whites who received loans for

homes increased by 31.2 per cent.

 Despite these gains, home ownership rates for minorities continue to lag

behind non-Hispanic whites, in part because blacks and Hispanics in

particular tend to have on average worse credit ratings.

In July, the Department of Housing and Urban Development proposed that

by the year 2001, 50 percent of Fannie Mae’s and Freddie Mac’s portfolio

be made up of loans to low and moderate-income borrowers. Last year, 44

percent of the loans Fannie Mae purchased were from these groups.

 The change in policy also comes at the same time that HUD is

investigating allegations of racial discrimination in the automated

underwriting systems used by Fannie Mae and Freddie Mac to determine the

credit-worthiness of credit applicants.

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A Second U.S. Supreme Court Justice Opts Out of a Longtime Custom: The ‘Certiorari Pool’

Friday, September 26th, 2008

By ADAM LIPTAK September 25, 2008 

WASHINGTON — Justice Samuel A. Alito Jr. is getting out of the pool. 

Skip to next paragraph For almost 20 years, eight of the nine justices on the Supreme Court have assigned their law clerks to a shared legal labor pool that streamlines the work of reviewing incoming cases. 

Only Justice John Paul Stevens has declined to participate. He relies on his own clerks to help cull perhaps 80 worthy cases from the thousands of appeals, called petitions for certiorari, that reach the court each year. The justices who participate in the arrangement, known around the court as the “cert. pool,” receive a common “pool memo” on each case from a single clerk. The memo analyzes the petition and makes a recommendation about whether it should be granted. 

Justice Alito has said nothing publicly about his decision to exit the pool. His move was confirmed by Kathleen Arberg, the court’s public information officer. 

Students of the court say there are costs and benefits to relying on pool memos, which are prepared by smart but relatively inexperienced law clerks. 

“The benefit is efficiency,” said David R. Stras, a law professor at the University of Minnesota who has studied the subject and reviewed many of the pool memorandums released with Justice Harry A. Blackmun’s papers. The pool, he said, avoids the time-consuming duplication of efforts that would result from having a clerk in each justice’s chambers consider every petition. 

But the pool system “does put enormous influence and power in a single clerk,” Professor Stras said, adding, “I’m quite sure there are cases that fall through the cracks.” 

Some argue that having several sets of eyes review each petition — the pool clerk, along with clerks from the chambers of Justice Stevens and now Justice Alito — may serve as a valuable check. The pool system, though, has the virtue of ensuring that at least one clerk will give each petition a careful look, which might not be possible were each justice’s clerks to review every petition. (Justices typically have four clerks each.) 

Critics of the cert. pool say it has led to homogenization and a lack of candor, a consequence of writing for an audience broader than only the clerk’s own justice. But the pool memorandums are often only a starting point, with each justice’s own clerks sometimes reviewing, highlighting and annotating the more important ones. 

Todd C. Peppers, a professor of public affairs at Roanoke College and the author of “Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk,” said the importance of the pool memo could be overemphasized. 

“Because of concerns about quality of the memos and the honesty of the analysis,” Professor Peppers said in an e-mail message, “former law clerks told me that some justices — such as Ruth Bader Ginsburg, Anthony Kennedy, Harry Blackmun, and Lewis Powell — have had their law clerks review the cert. pool memoranda prepared by other chambers, add their own written comments and suggestions, and occasionally write a new cert. memo.” 

Justice Alito’s move reverses a trend lasting decades. The pool had grown steadily since it was conceived in the early 1970s at the suggestion of Justice Powell, who prized efficiency. At first, five justices participated. 

“In true Washington, D.C., fashion,” Kenneth W. Starr wrote of the cert. pool in the Minnesota Law Review in 2006, “this modest government program has grown significantly and now possesses great power.” 

Mr. Starr, the dean of the Pepperdine University School of Law, is a former federal judge, independent counsel in the Whitewater investigation and law clerk to Chief Justice Warren E. Burger, one of the first participants in the pool. In the law review article, he lamented “the unjustifiable influence of the cert. pool” and, in particular, “a hydraulic pressure to say no.” 

A petition accepted that must later be dismissed as “improvidently granted” is a significant embarrassment to the clerk in question. On the other hand, it is hard to get into trouble, Mr. Starr said, by recommending a denial. “The prevailing spirit among the 25-year-old legal savants, whose life experience is necessarily limited in scope, is to seek out and destroy undeserving petitions,” he wrote. 

The justices decided 67 cases last term, about half the number in an average year two decades ago. But Justice Alito has said the rise of the pool and the size of the docket are unrelated. 

“I don’t think the cert. pool is responsible,” he told Tony Mauro of Legal Times last year. “There are plenty of cases where the clerks recommend a grant, and we deny, and plenty where they recommend we deny, and we grant.” 

Justice Alito joined the court in 2006 and is its most junior member. “Alito is starting to feel more comfortable and willing to rethink the way he does things,” said Richard J. Lazarus, a law professor at Georgetown. Professor Lazarus said he welcomed the justice’s move, partly because it suggests that the court should reconsider how it decides which cases to hear. “It’s the court’s most vulnerable point,” Professor Lazarus said of the decision to hear or turn down a petition. 

Justice Ginsburg, who remains in the pool, has cautioned against overstating the role of clerks and of pool memos. “We read pool memos with care and the judgment that comes with experience,” she once told Docket Sheet, a newsletter published for Supreme Court employees. “And when in doubt, we do read the petitions and responses.” 

“The law clerks are highly intelligent, very able, uncommonly diligent,” she said. “They save us hours upon hours of labor. But most of them are also young and in need of the seasoning that experiences in life and in law practice afford. Whenever I think a case may be cert. worthy, I will do the homework required and will not rely solely on a pool memorandum.” 

Employment discrimination plaintiffs fare poorly in federal courts

Thursday, September 25th, 2008



Employment discrimination plaintiffs fare poorly in federal courts, study finds

Newly analyzed data from federal court records show that workers bringing employment discrimination lawsuits increasingly fare poorly in the federal courts, according to a report to be published by the Harvard Law & Policy Review and released September 18, 2008, by the American Constitution Society for Law and Policy (ACS).


“We are pleased to release this significant new study that raises serious questions about the administration of justice,” said ACS Executive Director Lisa Brown. “We look forward to a robust debate about these important findings.”


Studying data from the Administrative Office of the United States Courts, authors Stewart J. Schwab, dean of the Cornell Law School, and Kevin M. Clermont, law professor at the Cornell Law School, find that “the federal courts disfavor employment discrimination plaintiffs, who are now forswearing use of those courts.” The authors conclude that they have “unearthed an anti-plaintiff effect that is troublesome.”

The findings of the study will also be a subject of a Senate Judiciary Committee hearing on the federal courts scheduled for next Tuesday, September 23, 2008. Cyrus Mehri, of the law firm Mehri & Skalet, will testify about the details of the study alongside Lilly Ledbetter, the plaintiff in the recent 5-4 Supreme Court decision Ledbetter v. Goodyear Tire, whose equal pay claim was turned aside by the high court.


Highlights from the study, “Employment Discrimination Plaintiffs In Federal Court: From Bad To Worse?” include:


As a result of the likelihood of unfavorable rulings in employment discrimination cases, more employees are declining to bring actions in federal court. Over seven years, 1999-2007, there has been a drop of 37 percent in the number of cases brought by plaintiffs.

Employment cases fare much worse than other types of cases that are filed. Between 1979 and 2006, the win rate for plaintiffs in job discrimination cases in the federal court system was 15 percent, in contrast to 51 percent for non-job related cases.


Employment discrimination plaintiffs are not likely to experience any greater success at the appeals court level. Data reveal that plaintiffs who lose at trial achieve reversals in less than nine percent of their cases. In contrast, defendants who lose at the trial court level are granted reversals in 41 percent of their cases.


In conclusion, the authors suggested, “Perhaps the plaintiffs’ lawyers are now recognizing their low chances for success in federal court and thereby becoming less inclined to venture into the court system.”


A panel discussion following the release was moderated by Judge Nathaniel R. Jones, of Blank Rome LLP, and a former judge on the U.S. Court of Appeals for the Sixth Circuit and included Eric Dreiband, of Jones Day, and former General Counsel, U.S. Equal Employment Opportunity Commission (2003-05); Wade Henderson, the President and CEO of the Leadership Conference on Civil Rights; Cyrus Mehri, a Founding Partner of Mehri & Skalet, PLLC; and Stewart J. Schwab, the Allan R. Tessler Dean and Professor of Law, Cornell University Law School.


The American Constitution Society for Law and Policy is a progressive legal organizations, comprised of lawyers, judges, students and policy makers committed to promoting the vitality of the Constitution and the fundamental values it expresses. The views of the authors are their own and should not be attributed to ACS.


Source: American Constitution Society for Law and Policy


For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.


Visit our News Library to read more news stories.


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If Jim Bunning had been President – Don McNay opines…

Thursday, September 25th, 2008


 By Don McNay

If I were the king of the world, I’d tell you what I’d do.  



Hoyt Axton (Three Dog Night) 


I’ve been watching the economic meltdown and the guy who keeps echoing my thoughts is Kentucky Senator Jim Bunning.     

 That is not normal.  Bunning and I don’t agree on  most issues.  I met Bunning in my childhood.  We were on opposite sides of the political spectrum then  and nothing has  changed in the past 30 years.

  Expect Bunning has a handle on the economy.  A handle that no one else in Washington seems to have.

 Bunning opposed Ben Bernanke as Chairman of the Federal Reserve Board.  He also opposed Alan Greenspan, at a time when the media savvy Greenspan (Greenspan is married to Andrea Mitchell at NBC News) was given   God like status from the main stream media.

God’s gone down a peg lately but it took some guts to oppose Greenspan at the time. Bunning did.  For that Bunning named one of the “10 worst Senators” by Time Magazine.

  Bunning was rapped for messing with a well connected guy.  I wonder if Time wants to have a recount.  They could let all the Senators who cooed about Greenspan explain their votes.

  If they were re taking that vote today, Jim would have some allies. 

  As it was, he as a lone voice.  Like he has been on many things.

   He was in the minority when President Bush decided that the way to revive the economy was by wasting $300 billion dollar on “rebate” checks to taxpayers.

  I’d like to ask the President,   how did that work for you?   Obviously not so well.   $300 billion went straight down the drain.

  That a lot of money where I come from.


Beshear Chief of Staff, Adam Edelen, scores national award as one of top ten young americans

Thursday, September 25th, 2008

FRANKFORT, Ky. – Gov. Steve Beshear today announced that Adam H. Edelen, his chief of staff, has been named one of the 2008 Ten Outstanding Young Americans by the United States Junior Chamber (Jaycees). The presentation of the 70th annual black-tie awards ceremony will be held Sept. 27, 2008, in San Diego.

“I’ve known for some time that Adam is an outstanding young Kentuckian and American,” said Gov. Beshear. “The energy and leadership he has brought to my administration has been invaluable, and I congratulate him on this well-deserved honor.”

Many notables have been honored as Outstanding Young Americans in the past including Presidents John Kennedy, Richard Nixon, Gerald Ford and Bill Clinton, and Vice Presidents Al Gore, Dan Quayle and Richard Cheney. Also honored were Howard Hughes, Orson Wells, Elvis Presley, Nelson Rockefeller, Ted Kennedy and Christopher Reed.

Edelen, 33, has served in many important leadership roles. From his previous government experiences as one of the youngest-ever aides to a governor and his tenure as the executive director of the Kentucky Office of Homeland Security to his career as a business executive, a commitment to service is the defining characteristic of his career.

As a two-term gubernatorial appointee to the board of Kentucky Educational Television, Edelen was the driving force behind the “Be Well Kentucky” initiative—an acclaimed effort which addresses Kentucky’s public health crisis. While vice-president of the Lexington Chamber, Edelen was responsible for the nationally recognized New Century Lexington Reports on Community Livability, which used private sector inspired metrics as a model for measuring Lexington’s quality of life. Edelen, who also chaired the United Way of the Bluegrass Annual Campaign, currently serves as vice-chair of the Urban League and is a member of the Prichard Committee for Academic Excellence.

Edelen has received many awards and recognitions. In 2002 he was a recipient of the Lexington Young Professionals Association “Rising Star” award. He was named a Young Leader by the American Swiss Foundation in 2007 and was the presented the 2008 Outstanding Young Kentuckian Award by the Kentucky Junior Chamber of Commerce.

Edelen and his wife Catherine live in Lexington with their twin sons.

The Ten Outstanding Young Americans program (TOYA) is one of the oldest and most prestigious recognition programs in America. Annually since 1938, The United States Jaycees has sought out the ten young men and women who best exemplify the finest attributes of America’s youthful achievers.

The TOYA selection process begins in the spring of each year. Following the submission deadline, all nominations are forwarded to a panel of screening judges who, working independently, select and rank their top twenty choices. The top twenty point getters become the finalists. The finalists’ nominations are forwarded to a panel of finalist judges who rank their top ten choices. The task of judging the nominations is arduous.

Each nominee’s accomplishments and contributions are also judged in relation to the Jaycee Creed: “…That earth’s great treasure lies in human personality, and that service to humanity is the best work of life.” Nominees also must meet certain qualifications: age (18-40, inclusive), American citizenship (or application therefore), and agree to attend the TOYA Awards Ceremony.


A Bailout Bill Takes Shape – See draft of Current Bailout Bill

Thursday, September 25th, 2008


By Steven M. Davidoffprofessor at the University of Connecticut School of Law 


We have obtained a draft of the current version of the Wall Street Bailout Bill that is being considered by Congress.


Scope of the Bailout


The bill attributed to Mr. Dodd would allow the Treasury secretary to purchase “troubled assets,” defined as “residential or commercial mortgages, and any securities, obligations, or other instruments that are based on or related to such mortgages, that in each case were originated or issued on or before March 14, 2008.”


This provision is generally what the Paulson bill proposed, although Mr. Paulson’s version would set the outside origination date at Sept. 17, 2008.

The definition of “troubled assets,” however, also includes “any other financial instrument, as the secretary determines necessary to promote financial market stability.” The Treasury secretary is required to consult with the chairman of the Federal Reserve in making this determination, but still, this is an incredibly broad grant of power.

It could allow this program to expand to credit card debt, student loan debt, market purchases of equity and even the debt of the big automakers.


Basically, the entire financial system.




Nowhere in the bill’s 44 pages is there any mention of what price will be paid for these assets. This is still the $700 billion dollar question, as what Treasury pays for these assets will determine the subsidy Wall Street obtains and how much the bailout ultimately costs.

Since both Democrats and Republicans appear to be punting on this, this is most likely what we are going to get. I find it incredible that the most important part of the process is basically being punted to Mr. Paulson. It may be the case that legislating a price mechanism is impossible, but I would be more comforted if at least the reasons for that were explained to the public, along with some outline of what Treasury will do.



In the bill from Senator Dodd, the Treasury secretary still has discretion to purchase and sell these assets at the prices he deems appropriate, with only a few new limitations.

The primary one is that the program must go through a new Office of Financial Stability, headed by an assistant secretary of the Treasury. In addition, the bill establishes an Emergency Oversight Board, comprising the chairs of the Fed, the Securities and Exchange Commission and the Federal Deposit Insurance Corporation, as well as two nongovernmental members appointed by Congress.

The board is merely that, an oversight board, and does not have power to control the program. In addition, the fleshed-out bill requires monthly reporting to Congress. It is being reported that these provisions are in the current draft of the bill.



The longer version of the bill contains a mandatory provision that “the secretary may not purchase, or make any commitment to purchase, any troubled asset unless the secretary receives contingent shares in the financial institution from which such assets are to be purchased equal in value to the purchase price of the assets to be purchased.”

This would require that the government take warrants to purchase shares in any financial institution from which it purchases assets. If that provision is adopted, the United States would obtain a possible equity stake in broad swaths of the entire financial sector. It would also chill use of the bailout fund, because only the most desperate banks would resort to it.


There are reports that in the course of negotiations, this requirement has turned into a mere option for the Treasury secretary, which is probably the prudent decision. Mr. Paulson has been rather vehement on this issue anyway, demanding warrants from Fannie Mae, Freddie Mac and American International Group, so this may be the case where “trust me” has credibility.




The bill that Politico posted tweaks the maximum limit on outstanding funds. It now states that:


The authority of the secretary to purchase troubled assets under this act shall be limited to $700,000,000,000 outstanding at any one time, by aggregating the purchase prices of all troubled assets held and any expenditures made under section 10(a).


The language tries to put a cap on total expenditures at $700 billion. It does not speak about expenditures, however, but measures costs. (I talked about the problems with this approach on Monday in “How Much Will It Really Cost?”)


In addition, the 44-page draft bill also tries to further restrict the costs of the bailout by placing administrative costs under this limit. This bill will generate probably substantial revenue on Wall Street, as Treasury turns to financial firms to help run the program. It is unclear what the state of this provision is in the current version of the bill.




The bill from Mr. Dodd would eliminate the bar on judicial review and instead place the following standard on the secretary of the Treasury:


Any determination of the secretary with regard to any particular troubled asset pursuant to this act shall be final, and shall not be set aside unless such determination is found to be arbitrary, capricious, an abuse of discretion or not in accordance with the law.

That is rather high standard to meet in any judicial challenge, but still, as David Zaring over at The Conglomerate predicts, “a judicial review donnybrook; Dodd looks for [Administrative Procedures Act] review instead of no review. Quite a radical difference, but courts did hear a lot of [Resolution Trust Corporation] appeals.” It is being reported that this provision is in the current draft of the bill.




The Dodd Bill includes relief for housing owners in Article 9. Remember that with the conservatorship of Fannie Mae and Freddie Mac and the purchases under this bill, the government will own or guarantee a majority of the mortgages in the United States. For any loans that the government actually controls (a subset of the foregoing), under the Dodd bill the government can modify the loan to prevent foreclosure. There are also provisions allowing for modification of homeowner loans in bankruptcy, a hotly contested issue. Apparently, the bill currently has some form of the former provision and the latter is still being negotiated.


Executive Compensation


The Dodd bill has a provision that all entities seeking to sell assets to the Treasury meet “appropriate standards for executive compensation and shareholder disclosure which standards shall include […] a claw-back provision for incentive compensation paid to a senior executive based on earnings, gains or other criteria that are later proven to be inaccurate [… and] such limitations on the entity paying severance compensation to its senior executives as are determined to be appropriate in the public interest in light of the assistance being given to the entity.”


This is another remarkable provision. It basically puts the Treasury Department in the business of setting compensation and disclosure policies for much of financial America. Besides definitional issues — what exactly is meant by inaccurate? — this is the wrong place to be setting these standards, and the broad scope of this mandate could create some big problems. If this survives, I would expect the provision to be clarified and limited to claw-backs alone, which are more justifiable.


State of Play


Things are still moving fast, so expect this to change somewhat. Still, while this bill would provide at least some oversight, the lack of clarity on pricing is a problem. Also, the stretched definition of “troubled assets” is going to result in bailout creep and provide this and any future administration ample room to move this program to other industries. Here come the automakers.


Americans Oppose Mandatory Minimum Sentencing, Will Vote for Candidates Who allow juries to impose sentences

Wednesday, September 24th, 2008

FAMM Poll:


Sept. 24, 2008
WASHINGTON,, Sept 24, 2008 /PRNewswire-USNewswire via COMTEX/ — A new poll released today by Families Against Mandatory Minimums (FAMM) shows widespread support for ending mandatory minimum sentences for nonviolent offenses and that Americans will vote for candidates who feel the same way.
– Fully 78 percent of Americans (nearly eight in 10) agree that courts – not Congress – should determine an individual’s prison sentence.
– Six in 10 (59 percent) oppose mandatory minimum sentences for nonviolent offenders.
– A majority of Americans (57 percent) polled said they would likely vote for a candidate for Congress who would eliminate all mandatory minimums for nonviolent crimes.
“Politicians have voted for mandatory minimum sentences so they could appear ‘tough on crime’ to their constituents. They insist that their voters support these laws, but it’s just not true,” says Julie Stewart, president and founder of FAMM. “Republicans and Democrats support change and that should encourage members of Congress to reach across the aisle next year and work together to reform mandatory minimums. Mandatory sentencing reform is not a partisan issue, but an issue about fairness and justice that transcends party lines.”
During a time of financial crisis and uncertainty in the United States, reviewing current criminal justice policies and reforming mandatory minimums for nonviolent drug offenders is an option that Democratic and Republican lawmakers are considering. Although neither is endorsing FAMM’s poll or report, Senator Jim Webb (D-Va.) and Rep. Bob Inglis (R-S.C.) are both concerned about America’s prison and sentencing system.
“America is locking up people at astonishing rates. In the name of ‘getting tough on crime,’ there are now 2.2 million Americans in federal, state, and local prisons and jails and over 7 million under some form of correction supervision, including probation and parole. We have the largest prison population in the world,” says Senator Jim Webb (D-Va.), who is chairing a symposium on criminal justice and prison issues in October. “This growth is not a response to increasing crime rates, but a reliance on prisons and long mandatory sentences as the common response to crime. It is time for America’s leadership to realize what the public understands – our approach is costly, unfair and impractical.”
“Mandatory minimums wreak havoc on a logical system of sentencing guidelines,” says Rep. Bob Inglis (R-S.C.). “Mandatory minimums turn today’s hot political rhetoric into the nightmares of many tomorrows for judges and families.”
“This poll suggests that a majority of Americans are open to re-examining this issue and moving to a court-driven sentencing model,” said Sparky Zivin, Research Director at StrategyOne.
The poll bolsters the findings of FAMM’s comprehensive new report, Correcting Course: Lessons from the 1970 Repeal of Mandatory Minimums, which describes how Congress repealed mandatory minimum sentences for drug offenses in 1970 – and had no trouble getting reelected.
“Our report and poll show that lawmakers can vote to reform mandatory minimums for nonviolent offenses and live to tell the story. Republicans and Democrats alike don’t want these laws. They don’t work, they cost taxpayers a fortune, and people believe Courts can sentence better than Congress can. Another repeal of mandatory drug sentences isn’t just doable, it’s doable right now,” says Molly Gill, author of Correcting Course.
The report details how Congress created mandatory minimum prison sentences for drug offenders in 1951 and repealed them in 1970 because the laws failed to stop drug abuse, addiction and trafficking. It also finds that after 20 years of experience, current mandatory minimums have failed as badly as those enacted in the 1950s.
Eric Sterling, counsel to the House Judiciary Committee when mandatory sentences were enacted, says, “In 1986, we got stuck with some of the most punitive, least effective criminal sentencing laws ever created. Mandatory minimums haven’t stopped the drug trade. They haven’t locked up the big dealers and importers. They’re applied to small fries, not kingpins. It’s a waste of taxpayer dollars to lock up a street-level dealer for 10 years when that money could be spent on treatment, drug courts, or going after the people bringing in boatloads of drugs every year. Getting rid of mandatory minimums is about getting our priorities straight.”
Correcting Course includes comprehensive strategies for how Congress can repeal these ineffective laws today and better reflect the popular attitude among Americans, as brought out in the findings of the poll.
“Mandatory minimums are among the worst criminal justice policies ever adopted in this country. They treat all offenders the same, when the most sacred principle of American sentencing law is that punishment should fit the individual and the crime. Repealing these laws isn’t impossible – it’s been done before. The next Congress should do it again,” says FAMM founder and president Julie Stewart.
To read the poll and report, visit
SOURCE Families Against Mandatory Minimums


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Deadline Extended for Food Stamp Clients to Apply for Replacement Benefits; Customers have until Oct. 3 to make claim for groceries destroyed after wind storm

Wednesday, September 24th, 2008

September 24, 2008 

FRANKFORT, Ky. (Sept. 24, 2008) – Kentuckians who lost perishable groceries purchased with food stamp benefits after the recent wind storm have extra time to apply for replacement benefits.


Clients in counties affected by the wind storm whose food was spoiled because of power outages have until Friday, Oct. 3, to apply for replacement benefits at their local Department for Community Based Services (DCBS) family support offices.


DCBS Commissioner Patricia R. Wilson said that the United States Department of Agriculture’s (USDA) Food and Nutrition Service, which oversees and funds the food stamp program, agreed to Kentucky’s request to extend the application period.

“With several hundreds of families still without power, we wanted to be sure every food stamp client who lost groceries and needs replacement benefits has the chance to apply,” she said.


Replacements are provided in the amount of the loss to the household, up to the household’s full monthly allotment. Customers must sign a statement that they lost food during a power outage and are requesting replacement funds. They also need some form of verification, such as a statement from a neighbor, verifying that they lost electricity. Elderly and handicapped clients may contact their food stamp workers by phone to have an affidavit sent to them to sign and return.


The requests will be processed as they are received. DCBS staff continues to receive a high volume of reimbursement requests and is processing the information as quickly as they are able.


Customers can find the address of their local DCBS family support offices online at

More information about food stamp eligibility is online at

Clients in the following counties are eligible for the replacement benefits:

─ Ballard
─ Boone
─ Breckinridge
─ Bullitt
─ Caldwell
─ Campbell
─ Carlisle
─ Carroll
─ Christian
─ Crittenden
─ Daviess
─ Gallatin
─ Grant
─ Graves
─ Hancock
─ Hardin
─ Henderson
─ Henry
─ Hopkins
─ Jefferson
─ Kenton
─ Livingston
─ Lyon
─ McCracken
─ McLean
─ Marshall
─ Meade
─ Muhlenberg
─ Ohio
─ Oldham
─ Owen
─ Shelby
─ Spencer
─ Trimble
─ Union
─ Webster

– 30 –


Eligible for Justice: Guidelines for Appointing Defense Counsel

Monday, September 22nd, 2008

By The Access to Justice Program – 09/16/08
Download PDF of Executive Summary
Download PDF of Full Report
View Recommendations
About the Access to Justice Program
For more than four decades, the Supreme Court has been clear: the Constitution requires states to provide a lawyer to people facing criminal charges who are unable to afford their own counsel. Unfortunately, neither the Supreme Court, nor any other source, has detailed how communities should determine who can afford counsel and who cannot. As a result, eligibility is determined differently almost wherever one looks: some communities don’t have any official screening processes at all, while others apply widely varying criteria and procedures.
The result has been a policy disaster.
Without fair standards for assessing eligibility, some people who truly cannot afford counsel without undue hardship are turned away. This may be because a relative posted bond for them, or they have a house or a car that they could sell to pay for a lawyer. Yet these arbitrary assumptions about who can pay and who cannot are devastating to families and communities. Families that truly cannot afford to pay for counsel may have to go without food in order to pay legal fees. Wage-earners forced to sell the vehicle they use to commute to work, in order to pay for counsel, may lose their jobs. People who simply cannot come up with the necessary resources end up trying to represent themselves, often pleading guilty because they are not aware of their rights.
On the other hand, some individuals receive counsel who should not. In these times of fiscal austerity, every dollar spent representing someone who can afford to pay for counsel robs resource-poor indigent defense systems of money that could be better spent representing people who are truly in need. The result is that indigent defense systems already stretched to their breaking points—with enormous caseloads for each attorney, and no funding for essential functions such as investigators and experts—are stretched further. This, too, results in constitutional violations, as people entitled to adequate representation end up getting a lawyer who cannot provide them with a meaningful defense.

Finally, without clear guidelines for how to determine who should be appointed counsel, decisions whether to appoint counsel hang on the serendipity of where an individual lives, the personal characteristics of the decision-maker, institutional conflicts of interest, or any of the other improper factors that substitute for more reliable standards and procedures.


In this report, the Brennan Center for Justice at New York University School of Law presents information about best practices for determining financial eligibility for free counsel. The report gathers, in one place, existing standards and procedures, relevant judicial precedent, and the specific views of many defenders in communities around the country. The report then makes six recommendations:  

  • First, screening—determining who can and who cannot afford private counsel—is a critical step for almost every jurisdiction. Well-designed screening can save money by ensuring that communities provide counsel only to individuals who are unable to afford their own lawyers. It can also raise the quality of defense services by concentrating communities’ limited resources where they are truly needed. And it can usefully reduce the risk of backlash against the public defense system fueled by perceptions that taxpayer money is used to represent wealthy defendants
  • Second, communities should establish uniform screening criteria, in writing. Uniform, written requirements would greatly reduce the dramatically inconsistent treatment of individuals that we found in our investigation.
  • Third, communities should protect screening from conflicts of interest. Prosecutors, defense attorneys, and presiding judges all have interests—for example, in controlling their workloads by resolving cases—which conflict with their need to be objective when deciding who should receive free counsel. Decisions about eligibility should be made by those who are not involved with the merits of individuals’ cases.
  • Fourth, to evaluate genuine financial need, screening must compare the individual’s available income and resources to the actual price of retaining a private attorney. Non-liquid assets, income needed for living expenses, and income and assets of family and friends should not be considered available for purposes of this determination.
  • Fifth, people who receive public benefits, cannot post bond, reside in correctional or mental health facilities, or have incomes below a fixed multiple of the federal poverty guidelines should be presumed eligible for state-appointed counsel. Such presumptions are useful shortcuts that can save money by streamlining the screening process. Each should be subject to rebuttal upon evidence that a defendant can in fact afford a private attorney.
  • Finally, screening processes must provide procedural protections, including a guarantee of confidentiality, the right to appeal determinations of ineligibility, and a promise not to re-examine determinations of eligibility absent compelling reason. Existing systems give useful examples of these protections and offer helpful guidance for jurisdictions looking to improve their screening processes.

None of these recommendations would be expensive to implement. And, once in place, these recommended practices can save money, improve the quality of public defense services, and promote compliance with the Constitution. We invite policymakers and other public defense system stakeholders to take advantage of these practical recommendations to preserve taxpayer money and protect constitutional rights in an equitable and consistent way.
>>Download PDF of complete report… 

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Justice Scott Named in Perry County lawsuit claiming Nepotism – Trial Court has no jurisdiction to rule on this claim. Code of Judicial Conduct permits a judge to make job reccomendations.

Monday, September 22nd, 2008

 A fired AOC employee claims in a Perry County lawsuit that Justice Will T. Scott of Pikeville acted “unethically” in allegedly calling the AOC director, and recommending his son Andrew Scott for a job.

 We don’t know if Justice Scott made such a recommendation, but even if he did, this does not provide a legal remedy for relief in a lawsuit.  The trial court in which this claim was brought does not have the jurisdiction to sanction a Judge for “nepotism”.  The sanctioning of judges for alleged “unethical” acts, is a job reserved exclusively  for the Judicial Conduct Commission.  The Perry Circuit Court has no jurisdiction to make any ruling on whether or not acts of a judge are in violation of the Code of Judicial Conduct.

The Code of Judicial Conduct forbids “nepotism” in Canon 3 Section (4) where it states:
“(4) A judge shall not make unnecessary appointments. A judge shall exercise the power of appointment impartially and on the basis of merit. A judge shall avoid nepotism and favoritism.”

Under the facts of this lawsuit, Justice Scott is not alleged to have made any “unnecessary appointments.  He did not exercise “the power of appointment”.   All he is alleged to have done is to make a job reference.

The commentary to the Code of Judicial Conduct says a Judge may make job recommendations to others. 

The commentary to Canon 2 of the Code of Judicial Conduct says: 

“a judge may, based on the judge’s personal knowledge, serve as a reference or provide a letter of recommendation.”

With regard to the nepotism charge, we note that there is an important distinction between the judge making a hiring decision regarding a job in which he has the power of appointment , and the judge giving a recommendation to an employer over which he has no administrative control.  

The Code prevents a Judge who has the authority to make a hiring or appointment decision to practice nepotism.  However that does not prevent a judge from making a job recommendation when someone else is doing the hiring.

We express no opinion about the claims of Ms. Combs in her lawsuit other than our observation that her assertion that Justice Scott acted “unethically” by making a job reference for his son (and we don’t know that he did) was “unethical”, is on its face unsupported by rule or law.

We note that as a Justice of the Ky. Supreme Court, Justice Scott has no direct control over the Administrative Office of the Courts, and has no authority to hire or fire the Director of AOC.  Those administrative powers are granted exclusively to the Chief Justice. (See Ky. Constitution Section 110 (5)(b) below.)

If the AOC director did receive a job reference from Justice Scott, he is clearly entitled to ignore it, and there is no administrative authority inherent in Justice Scott’s position on the Supreme Court that could interfere with the AOC Director’s decision.

We find no conduct alleged in the lawsuit that justifies the claim of unethical conduct by Justice Scott.


Excerpts from Herald-Leader article:
“Fired court employee accuses Justice Scott of nepotism
A fired court system employee, Ruth Ann Combs, has filed a lawsuit accusing Justice Will T. Scott of unethically intervening to get his oldest son a promotion.
The former Administrative Office of the Courts employee claims she was fired in January so that Andrew H. Scott could have her job.
The lawsuit claims that Will T. Scott spoke to AOC Director Jason Nemes to get Andrew Scott a promotion.
The lawsuit, filed against the AOC and “unknown agents” who participated in her firing, comes on the heels of an internal administrative appeal that found that Combs’ claim had “no merit whatsoever.”
The suit was filed Aug. 27 in Perry Circuit Court.”


C. Administrative Responsibilities.
(1) A judge shall diligently discharge the judge’s administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration, and should cooperate with other judges and court officials in the administration of court business.
(2) A judge shall require a judge’s staff and those subject to the judge’s direction and control and should encourage other court officials to observe the standards of fidelity and diligence that apply to the judge and to refrain from manifesting bias or prejudice in the
performance of their official duties.
(3) A judge with supervisory authority for the judicial performance of other judges shall take reasonable measures to assure the prompt disposition of matters before them and the proper performance of their other judicial responsibilities.
(4) A judge shall not make unnecessary appointments. A judge shall exercise the power of appointment impartially and on the basis of merit. A judge shall avoid nepotism and favoritism. A judge shall not approve compensation of appointees beyond the fair value of services rendered.
Appointees of a judge include assigned counsel, officials such as referees, commissioners, special roasters, receivers and guardians and personnel such as clerks, secretaries and bailiffs. Consent by the parties to an appointment or an award of compensation does not relieve the judge of the obligation prescribed by Section 3C(4)
A. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
D. A judge shall not allow family, social, political or other relationships to impair the judge’s objectivity. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.

Although a judge should be sensitive to possible abuse of the prestige of office, a judge may, based on the judge’s personal knowledge, serve as a reference or provide a letter of recommendation.

Section 110 Kentucky Constitution
(5) (a) The Justices of the Supreme Court shall elect one of their number to serve as Chief Justice for a term of four years.
(b) The Chief Justice of the Commonwealth shall be the executive head of the Court of Justice and he shall appoint such administrative assistants as he deems necessary. He shall assign temporarily any justice or judge of the Commonwealth, active or retired, to sit in any court other than the Supreme Court when he deems such assignment necessary for the prompt disposition of causes. The Chief Justice shall submit the budget for the Court of Justice and perform all other necessary administrative functions relating to the court.

(5) (a) The Justices of the Supreme Court shall elect one of their number to serve as Chief Justice for a term of four years.(b) . He shall assign temporarily any justice or judge of the Commonwealth, active or retired, to sit in any court other than the Supreme Court when he deems such assignment necessary for the prompt disposition of causes. The Chief Justice shall submit the budget for the Court of Justice and perform all other necessary administrative functions relating to the court.Merriam-Webster Dictionary:
 Main Entry:
French népotisme, from Italian nepotismo, from nepote nephew, from Latin nepot-, nepos grandson, nephew — more at
: favoritism (as in appointment to a job) based on kinship

Online help for judges in election lawsuits

Friday, September 19th, 2008

Sept. 20, 2008

WASHINGTON (AP) — An unpleasant Election Day scenario: A heavy turnout and a close election lead to a flood of court challenges. Legal groups are offering local judges new online resources to prepare for such a deluge. 

“These are things lawyers and judges do not deal with on a day-to-day basis,” American Bar Association president H. Thomas Wells Jr. said Friday. “We are not necessarily predicting more disputes, but we just wanted to be as prepared as possible.” 

The ABA has created a state-by-state list of election laws, providing basic information about who may cast a ballot and when votes can be challenged. The National Center for State Courts, working with the College of William & Mary law school, has put together video lectures and a manual on election law with chapters devoted to tallying the ballots and recounts, as well as post-election challenges. 

The number of election lawsuits has risen dramatically in recent election years, according to research by Richard Hasen, an election-law expert at Loyola Law School in Los Angeles. There were 361 cases in 2004, the last presidential election year, up from 197 in 2000 and 108 in 1996, Hasen found. The bulk of the challenges are filed in state court. 

John Hardin Young, a Washington lawyer who represents Democrats in recounts, said training and expertise of elections officials varies across the thousands of voting jurisdictions in the United States. 

“Things happen so quickly on Election Day that getting the facts and the law right to arrive at a reasoned, fair result is put to the test,” said Young, who worked on the ABA project. 

The Justice Department also is planning to dispatch hundreds of federal monitors to make sure voters aren’t unfairly kept from the polls. 

On the Net: 


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