Archive for September, 2014

Law school dean to the Supreme Court: This love affair is over

Monday, September 29th, 2014

After nearly four decades as a lawyer and 30 years teaching would-be lawyers, and after writing a leading textbook on constitutional law and helping establish a law school, and after standing before the justices five times on behalf of his clients, Erwin Chemerinsky has fallen out of love with the Supreme Court.


Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006. View Archive

His break-up note runs for 342 pages and is called “The Case Against the Supreme Court.” The book makes its regretful message clear at the very beginning:

“We should realize that this is an emperor that truly has no clothes. For too long, we have treated the Court is if they are the high priests of the law, or at least as if they are the smartest and best lawyers in society.”

His conclusion? “The court has frequently failed, throughout American history, at its most important tasks, at its most important moments. This is not easy for me to conclude or to say.”

Erwin Chemerinsky, dean of U.C . Irvine’s new law school, is photographed in his office at the Irvine campus on August 18, 2009. (Robert Lachman/Los Angeles Times)

In an interview, Chemerinsky, 61, an unapologetic liberal and dean of the law school at the University of California at Irvine, seems a bit surprised at himself.

“My nature is to be very optimistic and upbeat,” he says. Indeed, he has a reputation for trenchant and clear scholarship about the court. And his personal demeanor is unfailingly polite and soft-spoken; he is the kind of man who praises an interviewer’s questions.

He says there is nothing personal about his critique of the current court and that all of the justices are “incredibly talented individuals.”

But the justices could be forgiven for thinking that should be taken with a grain of salt.

Chemerinsky testified against Justice Samuel A. Alito at the justice’s confirmation hearings. He wrote last spring that Justice Ruth Bader Ginsburg should resign so that President Obama could appoint her successor. He told Justice Stephen G. Breyer he should be the next to pack up.

Scalia has a secrecy problem: Hiding and hypocrisy at the Supreme Court

Monday, September 29th, 2014

The court plays a growing activist role in our politics and lives — yet all nine justices hide in the shadows


Judge Richard Posner of the United States Court of Appeals for the 7th Circuit saidrecently, “I don’t understand why the judiciary should be the most secretive branch of government. The public probably knows more about the CIA than about the judiciary.”

Now that the United States Supreme Court’s 2014-15 term is about to begin, we should again ask ourselves about that court’s near-total lack of transparency.

During the last week of June every year, the Supreme Court takes over the news cycle with the announcement of blockbuster cases.  That’s great, but June only highlights the secrecy that exists at the court during the rest of the year.  For example, only a handful of people get to see those cases argued by some of the best (and increasingly specialized) advocates in the country.  Why?  Because the court refuses to allow the American people to watch oral arguments on television, or even listen to them live over the Internet.

What’s more, even if the justices had non-frivolous reasons to prohibit cameras at the court’s oral arguments (they don’t), none of those reasons would apply to decision announcement days when lawyer showboating is not possible (they don’t talk, and they often aren’t even there, as the court does not announce ahead of time which decisions it will hand down on which days).  Oh, and the justices have complete and total control over the “hand down” script. But the announcements of decisions like Hobby Lobby (religious freedom) and Citizens United (First Amendment campaign speech) are major moments in American history, and only about 250 lucky folks who happen to be at the court are allowed to witness historical moments in person, in the courtroom.

Recently, Justice Stephen Breyer was asked about the court’s reluctance to enter the 21st century and allow a broad segment of the American people to observe what the lucky few who are actually in the courtroom are allowed to see. He had no specific objections but simply said that “all of us are conservative where the court is concerned. We are trustees … So I’ll say we’re nervous about it. And probably that’s the most favorable you’ll get. I mean, nervous, uncertain, not aware of what’s going to happen. And as long as we’re uncertain … it’s tough.”


With respect to Justice Breyer, this decision shouldn’t be tough at all. State supreme courts, lower federal courts and supreme courts in other countries like Canada and the U.K. televise their public hearings with great success. It is well past time for our Supreme Court to do the same.

The lack of cameras at the Supreme Court is only one of many ways the justices hide their work from the American people. When deciding whether to recuse themselves from a given case (not participate because of a conflict of interest), the justices rarely explain their decisions or hold hearings to hear arguments on the motion to recuse. Last term, for example, Justice Samuel Alito first recused himself without any explanation from an important case concerning new live-streaming technology, and then reversed himself right before the oral arguments, again without any explanation. His initial reasons and his change of mind remain a mystery.

Justice Elena Kagan has recused herself from more than 100 cases, presumably because of her prior work as solicitor general, but without issuing a single written word explaining why. This silence became especially problematic when she refused to recuse herself in the challenge to the Affordable Care Act (despite a formal motion) after recusing herself in a huge Arizona immigration case and an important affirmative action case. The difference in her mind?  We have no idea.  Neither she nor any other justice is required to tell us.

And if Justice Kagan told her colleagues on the court why, perhaps by inter-chambers memorandum, we won’t get to see that explanation, either, even though every single pencil, piece of paper and computer at the Supreme Court is paid for by American taxpayers who, of course, must abide by the court’s decisions. Unlike the federal lawgoverning the president’s papers, which deems those papers public property subject to record-keeping requirements, no rules dictate what happens to the official papers of the justices after they retire.

This lack of regulation has led to some inconsistent and perhaps questionable decisions: For example, now-retired  Justice David Souter unilaterally sealed his papers for 50 years; we still have not glimpsed former Chief Justice Warren Burger’s papers even though he retired when Reagan was president, there was still a moderate wing of the Republican Party, and the Religious Freedom Restoration Act (RFRA, now the subject of much Supreme Court controversy after Hobby Lobby) wasn’t even a twinkle in Orrin Hatch’s eyes.

Were we to see these papers, we might also have a better idea of how the justices agree to hear a case, any case.  As of now, in those rare circumstances when The Nine decide to take a case (only four have to agree), no one other than the justices and their clerks, not the public, not the attorneys, not even the parties to the case, have any idea which justices voted to hear the controversy. Which 80 cases out of the 7,000 or 8,000 requesting review are worthy of the court’s attention – that’s a big decision.  And yet the justices keep their decision-making secret, allowing no one (not even court staff) into the room where they meet and deliberate.

The result?  American people have no way to keep track of a particular justice’s voting record on petitions for certiorari. Especially in cases where Justice Anthony Kennedy is likely the swing vote (he was in the majority in every 5-4 vote case the court decided last term), it would be helpful information to the parties, the public and the media to know if he was one of the four who wanted to hear the case. Yet, the court never officially reveals which justices voted to hear which cases.

There are indeed compelling reasons for the CIA to act with great secrecy.  Our national security may well depend upon it.  But our Supreme Court? Even though Lady Justice wears a blindfold, the justices should not force one on the American public.  Our belief and trust in the rule of law are simply too important for our justices to continue to insist on being as secretive as our spies.

Eric Segall is the Kathy & Lawrence Ashe Professor of Law at Georgia State University College of Law. He is the author of “Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices are Not Judges,” and with Lisa McElroy, co-author of “Supreme Secrecy,” which will be published next year by Stanford University Press. He has written numerous law review articles on constitutional law and other legal topics. He appears regularly on “StandUp With Pete Dominic” on XM Radio and tweets at @espinsegall.


Monday, September 29th, 2014
September 27, 2014 6:00 am  •  By Dylan Woolf Harris

ELKO — As the election rolls near, northeastern Nevada voters will continue to hear about ballot questions with  significant tax ramifications for businesses, as well as mining companies specifically.

Grabbing fewer headlines, however, is a measure to alter Nevada’s judicial system — which, argues Nevada Supreme Court Justice James Hardesty, could be a “sea change” to ensure swifter justice by the state’s highest court.

“I can’t think of a more important moment for the judicial system, for our citizens and our state,” he said.

After a slim defeat in 2010, the ballot question that asks for the creation of a court of appeals is back in the hands of voters. Hardesty, who drafted the latest version, Question 1, that outlines in detail the plan for implementing and running the court, is campaigning on its behalf and made a couple stops in Elko on Friday.

Nevada is with a minority of states that doesn’t have appellate courts. The result, coupled with Nevada’s population explosion over the last few decades, is that the supreme court has a higher caseload — more than 350 cases per justice each year — than any other state supreme court.

But Hardesty said the court of appeals isn’t needed to ease the justices’ workloads and clear their dockets. The real benefit, he said, will be to the citizens whose appeals are languishing in an extensive backlog, costing them time and money.

“This has to be addressed, or justice in Nevada isn’t just going to be delayed. It is being denied,” he said. “That’s not just a trite phrase; it is a fact in our state.”

Around 56 percent of the Nevada Supreme Court cases take six months just to be heard, 29 percent take more than a year and the rest take two to three years.

“That is an inefficient system of justice,” he said.

The supreme court will continue to hear many appeals for precedential cases. But an appeal over a driver’s license revocation, for example, or an inmate’s complaint about prison food would go before the appellate court.

“I wouldn’t suggest for a moment that those people aren’t entitled to pursue an appeal, but not in front of the highest court in the state.” he said. “… Those are issues that are important to the people in the case, but not important to the system generally or the law generally.”

The measure has been estimated to cost about $1.5 million — which will cover the salaries for the three judges, three secretaries and about six law clerks. Because all appeals will continue to go first to the Nevada Supreme Court, processing costs should remain the same, and there will be no need for additional clerks and staff. The judges will also use existing facilities and new capital projects won’t be required.

Hardesty also said the Supreme Court routinely kicks back unused funds to the state’s general fund — at least one year that amount topped $2.5 million.

The emotional cost for litigants, whether it’s a criminal case, child custody case or personal injury case, waiting for a ruling, he added, are incalculable.

According to Hardesty, a recent survey revealed that state judicial systems are a top 10 concern for businesses that are considering relocation.

If approved, a judicial panel will review applicants and forward three names to the governor for approval. In the following election cycle, the appellate judges would be up for election to serve a six-year term. The Legislature already approved the expected costs during the 2013 session.

A number of neighboring states have intermediate appellant courts, Hardesty said, but that isn’t what Question 1 proposes.


Monday, September 29th, 2014


 Premises Liability, Slip and Fall, “Open and Obvious”; Post-Shelton & Post-McIntosh
COA, Published 9/26/2014 –PJ Thompson


THOMPSON, JUDGE: The matter before us is on remand from the Kentucky Supreme Court. Our Supreme Court vacated this Court’s to be published opinion rendered on June 15, 2012, and directed we consider the issue relating to the open and obvious doctrine in light of its decisions in Dick’s Sporting Goods, Inc. v. Webb, 413 S.W.3d 891 (Ky. 2013), and Shelton v. Kentucky Easter Seals Soc., Inc., 413 S.W.3d 901 (Ky. 2013).

We hold Smith did not have sufficient control and supervision of the Speedway premises to be individually liable and, therefore, the action against her must be dismissed. Likewise, the claim against Speedway must be dismissed because the condition of the parking lot was open and obvious and was not a condition that created an unreasonable risk of harm.

Based on the foregoing, we reverse the findings of fact, conclusions of law, and judgment of the Clay Circuit Court and remand for proceedings consistent with this opinion.

 Criminal Law, Diversion Revocation
COA, Published 9/26/2014 Dismissing.  Opinion by PJ Vanmeter

VANMETER, JUDGE: Raychel Stilgenbauer appeals from the Boyd Circuit Court’s order revoking her diversion, adjudicating her guilty of first-degree possession of a controlled substance, and imposing a five-year sentence of imprisonment. For the following reasons, we affirm.

Upon review of the record and applicable law, we are unable to say that the trial court exceeded its authority by modifying the diversion agreement to include completion of drug court as a condition.  Moreover, the trial court did not abuse its discretion by revoking Stilgenbauer’s diversion for failure to complete drug court as ordered.

COA, Affirming Trial Judge’s Dismissal in Boone County

As a threshold matter, in order for this Court to find that MQH and the Diocese owed a duty to the Chances under premises liability law, the injuries in question must have occurred on their property. As noted, the trial court found that the pedestrian/vehicle accident occurred off MQH’s premises. Consequently, under a premises liability analysis, neither MQH nor the Diocese had any control over Kyle and Brooke Chance’s decision to park and walk on or adjacent to Donaldson Highway, a public thoroughfare outside its premises.

Reimbursable court costs to prevailing party does not in cost of copies of deposition transcripts;  nor does it include costs of “expedited transcripts” as an extraordinary service that can be ordered by the court

Unearth truth when prosecution’s conduct suspect, SC tells trial courts

Saturday, September 27th, 2014

Unearth truth when prosecution’s conduct suspect, SC OF INDIA tells trial courts

New Delhi, Sep 27 (IANS): The Supreme Court has said that trial courts were expected to perform their duties of dispensing justice effectively and in line with the spirit of the authority they wield, unearth the truth when the conduct of prosecution is suspect or appears to be hand in glove with the accused.

“The courts are expected to perform its duties and functions effectively and true to the spirit with which the courts are sacredly entrusted with the dignity and authority…” said a bench of Justice M.Y.Eqbal and Justice Abhay Manohar Sapre in their judgment pronounced Friday.

Speaking for the bench, Justice Eqbal said: “Court has a greater duty and responsibility i.e. to render justice, in a case where the role of the prosecuting agency itself is put in issue and is said to be hand in glove with the accused, parading a mock fight and making a mockery of the criminal justice administration itself.”

The court’s observation came as it dismissed appeals by Maheshbhai Ranchodbhai Patel and his parents against their conviction for the death of his wife Renukaben Maheshbhai Patel in Gujarat’s Mehsana district. They were convicted by the high court, which reversed the session court’s acquittals, for inflicting harassment and cruelty including physical assault leading to her committing suicide on Dec 16, 1997.

The sessions court had, in just a nine-day trial, acquitted both the in-laws. Though the husband was convicted, he was let off with the three days sentence that he had already undergone.

The apex court said that the trial court has failed to perform its duties to reach to the real truth and to convict the accused.

“Besides the dying declaration, there was available evidence on record to prove the factum of cruelty and death of Renukaben, but it was not brought on record by the prosecuting agency. Instead, all concerned were in hurry to finish the case in a day,” the court said in its judgment.

Out of the prosecution’s list of 17 documents to be produced and exhibited, the trial judge exhibited only four but the prosecution did not raise any objection, the court noted.

Referring to an earlier apex court judgment in a 2002 Gujarat riot case, the court said: “The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness.”

“If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil trying to hide the realities or covering the obvious deficiencies, courts have to deal with the same with an iron hand appropriately within the framework of law,” the court said.

Putting onus of successful conclusion of trial on the prosecution, the court said that “it is as much the duty of the prosecutor as of the court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice”.

It noted that the high court had correctly re-appreciated the evidence on record and reversed the trial court’s acquittal.

Concurring with the high court’s findings, the court said that “in the present case, prime duty of the trial court to appreciate the evidence for search of truth is abandoned and in a hurry to dispose of the case or for some other reason, the sessions judge had disposed of the trial and acquitted the accused”.

Dismissing the appeals, the court said the accused shall surrender forthwith to serve out the remaining period of the sentence, failing which the trial court is directed to take appropriate steps.

Legal Fees in Declaratory Judgment Actions Against Insurers

Saturday, September 27th, 2014


Eric Dinnocenzo, New York Law Journal    | 0

Eric Dinnocenzo

It’s not often that judges encourage litigants to appeal their decisions so they will be reversed. But Manhattan Supreme Court Justice Shirley Kornreich did just that in an April 8, 2014, decision in Madison 96th Associates v. 17 East Owners Corporation, which denied an attorney fee award to a prevailing plaintiff in a declaratory judgment action against its insurer, due to its wrongful refusal to provide it with a defense in a third-party action.1

From the perspective of this author, who is an insurance policyholder advocate, Kornreich was correct—her decision should be reversed. Her invitation highlights an oddity in New York law that a prevailing insured in a declaratory judgment action against its insurer for a breach of the duty to defend is only entitled to an attorney fee award if it is a defendant in the case. This is known as the “Mighty Midgets” rule, having been established by the Court of Appeals in a 1979 decision Mighty Midgets v. Centennial Insurance Company, 47 N.Y.2d 12 (1979).

In short, whether an insured can receive an attorney fee award in a declaratory judgment action is dependent on which side of the “v.” it finds itself. This sounds rather arbitrary, and in fact, Kornreich pointed out that Southern District Magistrate Judge James Francis has observed that this rule “has its peculiarities….[i]t seems anomalous for the entitlement to fees to turn on the fortuity of whether a party to an insurance contract is cast as the plaintiff or defendant.”2

To be clear, the focus of the Mighty Midgets rule (and this article) is on insurance coverage for third-party actions in terms of an insurance company’s duty to defend and indemnify its insured. First-party insurance claims, such as for refusal to pay benefits directly to an insured under a life, disability, or property insurance policy, are a different matter.

Misplaced When Applied

In rationalizing the rule it crafted in Mighty Midgets, the Court of Appeals found it important that in our American system, litigants customarily pay their own legal fees as it provides “freer and more equal access to the courts.”3 But the court carved out an exception for when an insured “has been cast in a defensive posture by the legal steps an insurer takes in an effort to free itself from its policy obligations.”4

While the logic of the American rule is sensible in the abstract, it is misplaced when applied to an insurance company that disclaims coverage and then faces a declaratory judgment action from its insured. It can fairly be said that keeping an insurance company in breach of its duty to defend from paying its insured’s legal fees does not contribute to the goal of “freer and more equal access to the courts.”

Kornreich pointed out that, “Over the years, countless insureds have sought to challenge the logic of this rule—which creates a perverse incentive, because allowing fees under these circumstances would create an incentive for the insurer to refuse to defend in the underlying suit, thereby leaving it up to the insured to bring a declaratory action seeking coverage.”5

Indeed, the one-sided nature of the Mighty Midgets rule encourages insurers to send out disclaimer letters and leave their insureds on their own to defend against third-party actions, instead of filing declaratory judgment actions to seek a court ruling on their obligations. After all, if they take the latter course, they might have to pick up the tab for their insureds’ legal fees.

Kornreich summed up this incentive as follows:

The court is mindful of the strong policy reasons against adopting a rule of law that would reduce the incentives for insurance companies to defend in the underlying tort actions and that would likely shift the burden of obtaining a declaratory judgment from the insurance company to the insured. Insurers could simply deny defense as a matter of course, and wait for impending actions by their insureds, without risk of incurring any liability for the insureds’ defense costs in resulting litigation. There is the potential that insurers might shrink from their defense obligations under their policies and categorically deny their insureds’ tenders of defense in an effort to reduce their financial exposure, without risk of incurring any additional liabilities or expenses associated with issuing and maintaining policies. However, until the legislature determines otherwise, this court is constrained to interpret the law as it currently stands.

Of course, a cautious insurance company may still file a declaratory judgment action in certain cases, cognizant that if it disclaims coverage and a hefty judgment is entered against its insured in the third-party action, it may ultimately be responsible for payment. But this is more the exception than the rule, at least if one assumes that insurance companies are generally of the belief that their disclaimers are valid. Thought of another way, if an insurer thinks it has a strong or perhaps even clear cut right to disclaim coverage, it does not make much sense from an economic standpoint to pay a law firm to file a declaratory judgment action to confirm that its decision is correct—especially when the insurer could be on the hook for legal fees if it loses.

Precarious Position

So where does the Mighty Midgets framework leave insureds? They are placed in the precarious, not to mention often financially untenable position of having to pay out of pocket for both the defense of the third-party action and a declaratory judgment action against their insurers. Most small businesses and regular folks do not have the financial resources to litigate on two fronts, never mind just one. So much for “freer and more equal access to the courts,” it would seem.

Some may argue, why should these cases be any different than others under the American rule? In other words, the Mighty Midgets rule gives an advantage to insureds in a specific context that other kinds of litigants do not share, and so why should they receive yet another advantage?

One response is that an insured who is wrongfully disclaimed against has not received the benefit for which it contracted. The insured purchased a policy, dutifully paid premiums, and when it needed coverage its insurer left it unprotected. Even if the insured ends up prevailing in a declaratory judgment action, it has suffered harm in the form of paying legal fees to get what it should have had in the first place.6 The insured is simply not made whole.

Then there is the important consideration that when an insurance company wrongly refuses to provide coverage, an innocent injured party may be harmed because he or she will have no way to obtain compensation.

Moreover, as opposed to a typical contract for money, the insured is not paying for something of value, but instead for a safeguard against an unfortunate event that may or may not occur in the future. As put by the Court of Appeals, insurance coverage provides “peace of mind, or comfort, of knowing that [the insured] will be protected in the event of catastrophe.”7 This is fundamentally different than a regular consumer transaction such as buying a car or hiring a house painter that does not entail the possibility of such dire consequences.

In addition, there is the unilateral aspect to how insurance companies may fulfill or not fulfill their policy obligations in this context. They either do or do not provide coverage for a third-party action. In contrast, in most consumer transactions there is often at least a partial or substantial performance which can alleviate the hardship incurred. For instance, if you buy a used car and the brakes do not work, it is not a total loss—you still have a car with value—but this is not so for an insurance disclaimer.

There is also a stark difference in economic resources between insurance companies and most of their customers, such as individuals and small businesses, who often are unable to challenge disclaimers unless they can be reimbursed for their legal fees if they prevail.

The insured in the case before Kornreich made an interesting argument for the expansion of the Mighty Midgets rule to encompass insureds who affirmatively file declaratory judgment actions against their insurance companies. Contending that the legal landscape for bad-faith insurance denials in New York has and continues to evolve based on the Court of Appeals decisions in Bi-Economy Market v. Harleysville Insurance Company of New York, 10 N.Y.3d 187 (2008) and Panasia Estates v. Hudson Insurance Company, 10 N.Y.3d 200 (2008), which allowed for an award of consequential damages to an insured that was greater than the policy limits, the insured suggested that the Mighty Midgets rule should also evolve to encompass insureds who file declaratory judgment actions, because the foreseeable result of a disclaimer is that the insured is forced to file the action.

Kornreich rejected this argument on the more technical grounds that the insured had failed to properly raise this theory in the complaint. But significantly, the judge went on to state that: “even absent bad faith, public policy strongly militates in favor of forcing [the insurer] to pay the DJ fees…The court encourages [the insured] to appeal this decision so its counsel can find out if its purported foresight is correct or if the penumbras of Bi-Economy and Panasia are illusory.”

The word “penumbra” of course hearkens back to how Justice William O. Douglas famously used it in the 1965 Supreme Court decision, Griswold v. Connecticut, 381 U.S. 479 (1965), which expanded our notions of privacy as well as the method and technique for interpreting the Bill of Rights—suggesting the law of bad faith in New York, which has historically been less consumer-friendly than in other states, can be more broadly interpreted.

It is noteworthy that some states take a more pro-consumer position. For instance, New Jersey allows an insured to recoup its legal fees if successful in a declaratory judgment action against its insured, no matter who is the plaintiff or defendant.8 In fact, New Jersey even allows injured persons to recover counsel fees if successful in a coverage action against a tortfeasor’s insurer.9

In conclusion, from a policyholder perspective, while the Mighty Midgets rule is better for insureds than no possibility of recovering legal fees in declaratory judgment actions, the shortcoming of the rule is that it does not discourage meritless disclaimers. The critical question comes down to whether the goal of “freer and more equal access to the courts” is directed to insurance companies or their insureds.


1. 43 Misc. 3d 1210(A).

2. Danaher Corp. v. Travelers Indemn. Co., 10-cv-0121, 2013 U.S. Dist. LEXIS 27214, at *10 (S.D.N.Y. Jan. 31, 2013) (quotation omitted).

3. 47 N.Y.2d at 22 (citation omitted).

4. Id. at 21 (citations omitted).

5. Quoting Folksamerica Reinsurance Co. v. Republic Ins. Co., 2004 U.S. Dist. LEXIS 21703, at *6-7 (S.D.N.Y. Oct. 29, 2004) (Baer, J.) quoting U.S. Underwriters Ins. Co. v. City Club Hotel, 369 F.3d 102, 110 (2d Cir. 2004).

6. Liberty Village Assoc. v. West American Insurance Co., 308 N.J.Super. 393, 406, 706 A.2d 206 (App.Div.), certif. denied, 154 N.J. 609, 713 A.2d 500 (1998).

7. Bi-Economy Market, Inc. v. Harleysville Ins. Co. of N.Y., 10 N.Y.3d 187, 194 (2008).

8. See Myron Corp. v. Atlantic Mut. Ins. Corp., 407 N.J. Super. 302, 311, 970 A.2d 1083, 1088 (N.J. App. Div. 2009).

9. Id. citing Sears Mortgage Corp. v. Rose, 134 N.J. 326, 356 (1993).

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Why You Can’t Trust The Supreme Court, In Three Quotes

Friday, September 26th, 2014


Why You Can’t Trust The Supreme Court, In Three Quotes


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Lawyers who are hoping to bring a case to the Supreme Court typically claim that the law is on their side, and they generally rely on citations to legal authorities and doctrines to prove this point. It’s not every day that an attorney states openly to a reporter that he thinks he’s going to win his case because he expects the justices to behave like partisan hacks.

And, yet, that’s more or less what Michael Carvin, the lead attorney behind a last ditch effort to gut the Affordable Care Act, told Talking Points Memo’s Sahil Kapur on Wednesday. According to Kapur, Carvin expects the Supreme Court to take up his case because there will be four justices — the amount needed for the Court to take a case — who aren’t “going to give much of a damn about what a bunch of Obama appointees on the D.C. Circuit think.” He added that he does not expect to “lose any Republican-appointed judges’ votes” in the D.C. Circuit, an appeals court that is currently considering the case, and that he expects the Republicans on the Supreme Court to follow their fellow Republicans’ lead.

When asked if he thinks he could lose any of the Supreme Court’s five Republicans, Carvin “smiled and said, ‘Oh, I don’t think so.’”

Last July, two Republican members of the United States Court of Appeals for the District of Columbia Circuit ordered much of Obamacare defunded at Carvin’s request. The full DC Circuit withdrew this decision earlier this month, and announced that the case would be heard again by the full court in December.

Although Carvin attributes this fact to “a bunch of Obama appointees on the D.C. Circuit,” the truth is that the Obama appointees on this court could have only played a partial role in the decision to withdraw the two GOP judges’ decision. All eleven of the DC Circuit’s active judges considered whether to rehear the case, and a majority of six was required to withdraw the two Republicans’ decision. President Obama, however, appointed only four members of the court. Thus, even if all four of the Obama appointees voted to rehear the case, at least two judges who were appointed by a different president must have agreed with them or the original decision would not have been withdrawn.

The DC Circuit does not announce how each judge votes when a request to rehear a case is filed, so, while it is likely that President Obama’s four appointees disagreed with the legally doubtful reasoning in the two Republican judges’ decision, no one except the judges themselves and some members of the court’s staff are aware of how the court’s members voted on this matter. Carvin’s claim that the Obama appointees voted against him is speculation.

Carvin is correct, however, that his best chance of winning this case is to hope that the justices will place their partisan preferences before the law, as the legal arguments presented in his briefs are weak. As ThinkProgress previously explained, Carvin’s legal theory misreads the Affordable Care Act by fixating on one line of the statute to the exclusion of other text that cuts against his claim that the law should be defunded. This method of reading a statute defies the Supreme Court’s command that “a reviewing court should not confine itself to examining a particular statutory provision in isolation” as the “meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.”

Carvin also asks the courts to read Obamacare in a way that would render much of its language virtually meaningless. As we explained in a lengthy examination of the flaws in his lawsuit, Carvin “expect[s] the courts to believe that Obamacare is supposed to create barren health exchanges where little or no health insurers offer exorbitantly priced insurance that hardly anyone can afford.” This claim, among other things, cannot be squared with the law’s declaration that it will achieve “near-universal coverage by building upon and strengthening the private employer-based health insurance system.”

Nevertheless, the fact that Carvin’s legal arguments lack merit does not necessarily mean that he is wrong about how the justices will view his case. In August, the Washington Timesexamined the voting patterns of judges in cases involving the Affordable Care Act. They found that “Democratic appointees ruled in favor of Obamacare more than 90 percent of the time, while Republican appointees ruled against it nearly 80 percent of the time.” Pure partisanship, not the merits of a particular legal argument, has been the greatest predictor of how judges will decide cases involving this politically charged law.

But if judges cannot set aside their partisan preferences, then that is an indictment of the very legitimacy of the judiciary. Elected officials are empowered to govern because their authority flows from the will of the people. Federal judges, by contrast, enjoy no popular mandate and they cannot be removed from office in a future election if they abuse their power or otherwise to harm to the law. Nevertheless, the Constitution entrusts them with significant authority because it expects judges to objectively apply the law regardless of their political views.

Yet, if judges behave just like ordinary politicians, then the case for giving them any power whatsoever breaks down. Between giving an elected official who can be removed from office the power to set policy based solely on that official’s own political views, and giving that same power to an unelected official who serves for life, it is better to leave that kind of power in the hands of people who are actually accountable to the people. Placing that kind of power in the hands of unelected officials with life tenure, at least if those officials do not restrain themselves by following objective legal principles, is akin to oligarchy.

So Carvin’s prediction that Republican justices can be trusted to advance Republican policies even in a case such as this one, where the legal arguments for doing so are weak, may in fact prove correct. Should Carvin be vindicated, however, the justices will deal a grievous self-inflicted wound to their own institution.

Why the Supreme Court keeps smacking down America’s top patent court

Friday, September 26th, 2014

Updated by  on September 26, 2014, 10:40 a.m. ET

The CLS v. Alice decision was written by Justice Clarence Thomas.Alex Wong/Getty Images


If there’s one institution responsible for the state of patent law today, it’s the United States Court of Appeals for the Federal Circuit.

In 1982, Congress created the Federal Circuit and gave it jurisdiction over all patent cases. It was an unusual arrangement — most other areas of law are overseen by a dozen generalist appeals courts whose jurisdiction is based on geography, not subject matter. Federal Circuit decisions are subject to review by the Supreme Court, but in the early years, the Supreme Court gave the Federal Circuit a long leash. The high court rarely reviewed Federal Circuit decisions, making the lower court the de facto “Supreme Court of patent law.”

The results haven’t been pretty. During the 1980s and 1990s, the Federal Circuit made patent law increasingly favorable to patent holders. This produced a rapid increase in the number of patents and a surge in litigation. In recent years, patent litigation has become such a pervasive problem that the term “patent troll” has entered the public lexicon.

These developments have not escaped the attention of the Supreme Court, which has shown increasing interest in patent law in recent years. In a new essay, University of California, Hastings law professor Robin Feldman writes about the Supreme Court’s increasingly blunt efforts to force the Federal Circuit to respect the high court’s own precedents, which generally place stricter limits on patent rights.

In the most recent Supreme Court term, the high court reviewed a record six Federal Circuit rulings. In all of these cases, Feldman told me, ”the Supreme Court soundly and unanimously rejected the Federal Circuit’s logic.” Feldman believes that this heavy-handed approach was necessary because the Federal Circuit had “failed to take the hint” from previous Supreme Court rulings.

The most consequential of the Supreme Court’s rulings this term was CLS Bank v. Alice, the first Supreme Court ruling on the patentability of software in 33 years. Not only did the patent in Alice get struck down, but in the 3 months since then the precedent has led to at least 11 lower court rulings invalidating other software patents. Experts expect a lot more software patents to be invalidated in the coming years.

We spoke by phone on Tuesday afternoon. The interview has been edited for length and clarity.

Timothy B. Lee: You note in your paper that the Federal Circuit seems to be more favorable to the interests of patent holders than the Supreme Court. Do you have any idea why that is? One theory that some people have advanced is a capture theory — that the Federal Circuit has become unduly influenced by the ideology of patent lawyers, who tend to have a strongly pro-patent outlook.

Robin Feldman: I think the Supreme Court sees itself as sending strong messages to both the Federal Circuit and to the patent bar. For example, in the Alice decision, the Supreme Court five times referred to “draftsmen’s art” or “drafting efforts.”

These are strong messages not just to the bench but also to the bar that business as usual must change. In other words, there’s certainly a perception that the Federal Circuit and the patent bar are closely tied.

In my view, the stronger problem is an isolated court. Without the disciplining effect of frequent supervision or dialogue among other circuits, it’s difficult to avoid becoming insular. In other words, problems at the Federal Circuit are structurally predictable.

TBL: Why do you think the Federal Circuit’s approach to patent issues seems so different from that of the Supreme Court?

RF: For decades, the Federal Circuit operated with little oversight from the Supreme Court. For example, in the first 15 years [after 1982], the Supreme Court decided a total of only five cases from the Federal Circuit. That’s a remarkably small number compared to cases the Supreme Court took from other circuits. In addition, other circuits have the disciplining effect of different judges, different circuits coming to different opinions and conclusions. The Federal Circuit acted alone.

In that time, it developed a habit of relying on rules of convenience. That is, they may have reached the right result for the particular case, but they lacked a coherent logical base. With little oversight from the Supreme Court, little dialog from other circuits, it was easy for the Federal Circuit to operate in that manner.

Eventually, observations from various commentators and academics created interest at the level of the Supreme Court. And since the turn of the millennium, the Supreme Court has increasingly taken cases out of the Federal Circuit. This culminated in the last term, in which the Supreme Court took more cases than any other year since the founding of the Federal Circuit in 1982.


In all six patent cases decided last year by the Federal Circuit, the SC soundly and unanimously rejected the Federal Circuit’s logic. That has been a consistent pattern for the Supreme Court to the Federal Circuit in recent years.

In the article, I describe a pattern in which the Supreme Court initially tries to suggest the type of approach it would like to see, without specifying the approach, remands to the Federal Circuit, the Federal Circuit fails to take the hint, and eventually the Supreme Court slams down even harder.

TBL: It seems like since Alice, the Federal Circuit has seemed a little more motivated to follow the Supreme Court’s guidance. Do you think there’s a generational aspect to this? Are younger judges less resistant to following the Supreme Court’s direction?


RF: I have not looked at the different judges’ opinions in a careful, empirical manner. i would say that when a court is shifting direction, it may be easier for judges who are newer to the court to adapt to the shifting winds. It’s more difficult for those who have been on the court for longer to operate in a different fashion.

TBL: Is that because the older judges have opinions on the books that they’d have to repudiate?

RF: Old habits die hard.

The lower courts have invalidated about a dozen software patents since Alice came down a few months ago. Two of those decisions came from the Federal Circuit. The language of both decisions gave careful deference to the Supreme Court.

TBL: Some people, have proposed changing the rules to give jurisdiction over some patent appeals to courts other than the Federal Circuit. Do you think reforms like that would be a good idea?

RF: I haven’t read the proposal you’re talking about so it would be difficult for me to comment on it. But I suspect we are a long way from major changes in the Federal Circuit’s jurisdiction. Enthusiasm for those proposals will depend significantly on how the Federal Circuit itself reacts to the latest round of Supreme Court pronouncements.

The public is increasingly focused on patents and patent law. If public perception about the Federal Circuit becomes unfavorable, those proposals may gain credibility.

TBL: How big of a shift will the Federal Circuit need to make on patent law to satisfy the Supreme Court?

RF: The Supreme Court can only take a limited number of cases each year. The Federal Circuit continues to have significant latitude. To me, the question will be whether the court appears to be making an effort to conform to the spirit of Supreme Court pronouncements.

I read one commentator who noted essentially that patent lawyers have survived other decisions like Alice by simply shifting the way they write patent claims, and they will respond precisely the same way. If that happens, I suspect the Supreme Court will not take kindly to it.

In taking so many cases this year, the Supreme Court demonstrates remarkable focus on patent law. I would not expect that to change any time soon.


Why do so many patent lawsuits involve software?

Research shows that patents on software are particularly prone to litigation. There are several reasons for that:

  • Software patents can be extremely broad. For example, a famous patent covers the concept of purchasing products online with one click. Another patent owned by a troll called MPHJ has a patent that covers the concept of scanning documents to an email address. This kind of broad patent makes it easy for businesses to infringe by accident.
  • Most companies aren’t just users of software, they also have IT departments and web developers that produce it. So firms that wouldn’t otherwise have to worry about patent law are at risk of infringing software patents.
  • Software is extremely complex. Computer programs contain thousands, and sometimes millions, of lines of code. Since patents can be infringed in just a few lines of code, there’s no practical way for companies to figure out which patents their software products might be infringing.
Everything you need to know about patents17 CARDS / EDITED BY TIMOTHY B. LEE UPDATED JUL 1 2014, 11:40A
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Is ‘annoying’ too vague for public drunkenness law?

Thursday, September 25th, 2014


Tim Evans, tim.evans@indystar.com9:10 a.m. EDT September 18, 2014


(It takes more than just being drunk to get convicted of public intoxication in Indiana.

The law says you also have to be annoying.

The Indiana Court of Appeals ruled in February thatthe term is unconstitutionally vague.

Attorneys for the state will try this morning to convince the Indiana Supreme Court that the term is not.

The attorney general’s office, which is responsible for defending court challenges to state law, requested the high court’s review.

The challenge comes after the appeals court overturned the conviction of Rodregus Morgan, an Indianapolis man whose alcohol-induced public conduct was found annoying by a police officer.

When the high court announced it was taking up the case, Attorney General spokesman Bryan Corbin laid out the state’s argument: “The statute was not unconstitutionally vague as applied to Morgan because a person of ordinary intelligence would know that lying drunk in a public bus shelter that the general public uses throughout the day for transportation constitutes conduct that would annoy others — especially when the intoxicated person angrily and continually refuses to move when asked to do so by another person.”

A three-judge panel from the court of appeals, however, still found the “annoying” standard unconstitutionally vague. A criminal statute “must include some ‘scientifically objective measurement for compliance’ so that the public is aware of the conduct that will subject them to arrest,” the appeals opinion said.

The Supreme Court will hear oral arguments in the case at 9:45 a.m. The panel has two basic options: uphold the appeals court ruling or reverse that decision with a finding that the term annoying is not too vague.

It won’t be the first or last time a high court has taken up the issue of vagueness in the law. Most famous is the U.S. Supreme Court’s 1964 take on obscenity that included former Justice Potter Stewart’s oft-repeated “know it when I see it” standard.

“I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description … (of what is and is not obscene),” Stewart explained.

Perhaps, Stewart admitted, he could “never succeed in intelligibly” defining obscenity.

“But,” he was clear, “I know it when I see it.”

This story will be updated.

Call Tim Evans at (317) 444-6204. Follow him on Twitter:@starwtatchtim

Shakespeare Didn’t Really Want To Kill All The Lawyers, But We Should Deregulate Their Profession

Thursday, September 25th, 2014


Forbes - LAW & REGULATION 9/18/2014 

One of the Bard’s often-quoted lines is Dick the Butcher’s admonition in Henry VI, Part 2, “The first thing we do, let’s kill all the lawyers.”

That idea, argues lawyer David Epstein, is mistakenly thought to mean that Shakespeare was antagonistic toward the legal profession. Instead, as we read in this Wall Street Journal piece, Shakespeare actually meant “to portray lawyers as the guardians of the rule of law who stand in the way of a fanatical mob.”

Whether you agree with Epstein’s interpretation or not, more than four centuries after Shakespeare’s time, we should do something about lawyers, something that entails no violence.

That something is to deregulate the legal profession.

To repeat a point I have made here before, most companies and professions like regulation. They seek it, happily trading off some freedom for security from the blustery winds of wide-open competition. One of the organized interest groups that has been very successful in getting government to stifle competition so it can act like a cartel is the legal profession.

It used to be egregiously cartel-like, requiring that members adhere to fee schedules, thus shutting down price competition, and forbidding lawyers from advertising. Both of those strictures, embodied in the Canons of Legal Ethics, have been wiped away, though. The Supreme Court ruled that mandatory fee schedules violated the Sherman Act in Goldfarb v. Virginia State Bar in 1975 and the prohibition against advertising was similarly struck down by the Court in Bates v. State Bar of Arizona in 1977.

Those decisions whittled away the profession’s internal rules against competition, allowing lawyers to compete with each other. Still standing, however, is the bar’s defense against external competition: the prohibition against “unauthorized practice of law.” Only individuals who hold a license to practice law in a state may do so and anyone who does not hold a license is guilty of “unauthorized practice” should he or she venture to do anything that might be considered “practice of law.”

It doesn’t matter in the least how competent the individual may be to do the task, how expertly it was done, or how satisfied the other person was with the work. Unauthorized practice is strictly forbidden. And because exactly what constitutes the “practice of law” is not precisely defined, the effect (and the purpose) is to scare those who are not members of the bar from coming anywhere near “lawyers’ turf.”

With the high licensure barrier to entry into the market for legal services (in most states, only people who have graduated from an American Bar Association accredited law school are eligible to take the bar exam), lawyers can charge more. Owing to the great cost of getting into the guild, few lawyers can even think about taking cases from poor people who can’t afford to pay substantial fees.

Among the many who have noticed that problem are Brookings Institution scholars Robert Crandall and Clifford Winston, whose 2011 book First Thing We Do, Let’s Deregulate All the Lawyers makes a strong case in favor of a laissez-faire approach to the legal profession. They write, “The reality is that many more people could offer various forms of legal services today at far lower prices if the American Bar Association did not artificially restrict the number of lawyers…Occupational licensing limits competition and raises the cost of legal services.”

The profession’s licensure system is enforced through unauthorized practice of law (UPL) prohibitions. If it weren’t for them, people could enter the market without having first spent three largely useless but extremely expensive years in law school.

It is because of those prohibitions that many Americans can’t afford an attorney. As law professor Laurel Rigertas writes in her recent Fordham Law Review article The Legal Profession’s Monopoly: Failing to Protect Consumers, “Much of the public is left wandering around the self-help section of bookstores and self-help kiosks in courthouses trying to figure out how to handle matters on their own.”

Too bad about those Americans who are priced out of the market, but the ABA insists that its restrictions are only there to protect the public against incompetence. Some people might get bad advice from inadequately trained legal practitioners, so organized bar says it has to step in and ensure competence by keeping law students in approved law schools for three years.

The problem with that rationale is that spending all that time in law school is neither a necessary nor a sufficient condition for competence in performing legal tasks. Stanford Law School professor Deborah Rhode has been attacking that notion since 1981. She and Lucy Buford Ricca (also at Stanford) write in their Fordham Law Review article Protecting the Profession or the Public: Rethinking Unauthorized-Practice Enforcement,

“In other nations that permit nonlawyers to provide legal advice and to assist with routine documents, the research available does not suggest that their performance has been inadequate. In a study comparing outcomes for low-income clients in the United Kingdom on a variety of matters such as welfare benefits, housing, and employment, nonlawyers generally outperformed lawyers in terms of concrete results and client satisfaction….In the United States, studies of lay specialists who provide legal representation in bankruptcy and administrative agency hearings find that they generally perform as well or better than attorneys. Extensive formal training is less critical than daily experience for effective advocacy.”

If the market for legal services were deregulated, practitioners would quickly figure out the optimal kind and duration of training for them to succeed in business. It isn’t the years of law school classes (almost all of which is quickly forgotten) that make one competent, but instead the need to build your reputation through good service.

In short, the licensing regulations in the legal profession don’t protect the public, but merely raise the cost of services, doing the most harm to those who can least afford to pay.

But even if we could persuade a lot of legislators that UPL is nothing but anti-competitive turf protection, we would confront the further difficulty that UPL enforcement is mostly in the domain of the judicial branch. Professor Rigertas observes in the article cited above, “With rare exceptions, legislatures cannot authorize nonlawyers to engage in acts that are considered the practice of law, so any changes to the scope of the legal profession’s monopoly must come from the state supreme courts….”

She points out a few, small steps that have been taken in that direction. The Supreme Court of Washington has, for example, decided to permit Limited License Legal Technicians to do work in the area of family law.  The small steps these few courts have taken have been opposed by the organized bar. Trying to get to a deregulated profession through incremental liberalizations authorized by justices willing to joust with their compatriots in the profession would take forever. Or at least half of forever.

I don’t think that is necessary. State Supreme courts may have “inherent” control over the legal profession, but that should not mean that they get to create and enforce a new victimless crime on their own. The legislative branch shouldn’t sit around like potted plants while the judicial branch abuses citizens.

State legislators – a coalition of conservatives who believe in free markets and liberals who actually put the interests of poor people above lawyer campaign support – could pass statutes providing that no one will be fined or imprisoned for the rendering of any legal service except upon proof of fraud. Consumers who could prove they’d been defrauded by someone falsely claiming to have legal credentials could take action, but bar associations trying to stifle competition could not.

If that were the law of a state, all of which judges are sworn to uphold, we would probably never see any more cases where paralegals, secretaries, or family members are attacked merely for having trespassed on lawyers’ turf.

Why Every Single Supreme Court Justice Got Hobby Lobby Wrong

Thursday, September 25th, 2014

Thursday 18 September 2014  ETedited by Alex Ferraro

JURIST Guest Columnist Ron Fein, of Free Speech for People, discusses the Supreme Court’s recent Hobby Lobby decision …

The Supreme Court’s majority opinion [PDF] inHobby Lobby made a serious mistake about the nature of corporate religious claims. But so did the dissent.

As Hobby Lobby’s case worked its way through the courts, both sides took one thing for granted: they assumed that the Supreme Court had already extended the religious freedom protections of the First Amendment and theReligious Freedom Restoration Act (RFRA) to nonprofit corporations. Under that assumption, the next question was whether that supposed rule should be extended to for-profit corporations. But what if the assumption is wrong: what if nonprofit corporation—even churches—don’t themselves independently hold religious free exercise rights?

When we think of corporations, we usually think of businesses, like ExxonMobil, Wal-Mart—or Hobby Lobby. But there are also nonprofit corporations, like the Sierra Club and the National Right-to-Life Committee. Many religious congregations, such as churches, synagogues or mosques, find it useful for legal purposes to incorporate.

That brings us to Hobby Lobby. In the past few decades, there were a handful of Supreme Court cases involving religious claims where the named plaintiff was an incorporated church. But does that mean that the church corporation itself had religious rights?

Nearly everyone reading these cases assumed that the nonprofit corporations themselves have religious freedom rights. And so the argument in Hobby Lobby was about whether for-profit corporations also have religious rights.

But this assumption is wrong. Incorporated nonprofit religious institutions—including churches—don’t have, and never had, their own independent religious rights. They come into court as representatives of their members.

Let’s look at some of those cases. In Hobby Lobby, Justice Alito wrote: “[w]e have entertained RFRA and free-exercise claims brought by nonprofit corporations.” His first example was Gonzales v. O Centro Espírita Beneficiente União do Vegetal, a 2006 decision involving a request for a RFRA exemption from federal anti-drug laws by a small (incorporated) church whose members sought to use a hallucinogenic tea in religious ceremonies.

But the O Centro decision doesn’t say anything about religious rights for nonprofit corporations; it doesn’t even mention the word “corporation.” Rather, the opinion explained that RFRA should yield an “exception for the 130 or so American members of the [church] who want to practice” their religion. Members of the church: that’s people, not corporations.

It turns out that the church, which is incorporated, filed its RFRA suit as “a New Mexico corporation on its own behalf and on behalf of all its members in the United States.”

Their case was based on a legal concept known as associational standing. To file a case in federal court, you must show that you suffered harm from whatever the defendant did or didn’t do, and this violated your legal rights. This is called standing. And to have standing, you have to argue your own rights; you can’t come into court and argue that the defendant violated someone else’s legal rights.

But there are exceptions, and one of the most important is associational standing. This means that an association can bring a claim that really belongs to its members. Let’s take environmental law. Suppose a factory pollutes a river and the Sierra Club wants to sue the factory under the Clean Water Act [PDF]. But how is the Sierra Club harmed? The polluted water isn’t coursing through the Sierra Club’s San Francisco headquarters. Instead, the Club needs to identify a few members who regularly kayak through that river. Those members fill out affidavits saying that they can’t kayak the river any more because the pollution is making it so bad. And then—here’s the legal device—the Sierra Club can bring the lawsuit on its members’ behalf, because people pay dues to the Sierra Club to do exactly this sort of thing, and the Sierra Club’s lawyers can present the case in court more effectively than a few individual kayakers could.

That’s the magic of associational standing: it lets an association that has no injury or legal right of its own file a lawsuit on behalf of its members.

Let’s return to O Centro. The church’s lawyers were apparently worried that the government might pull some clever maneuver to get the case kicked out of court, because they came up with every possible plaintiff you could imagine: the church on its own behalf; the church using associational standing to argue on behalf of its members; and then 15 of those members (more than 10 percent of its total membership!) as individual plaintiffs.

And because of this abundance of plaintiffs, none of the courts involved spent too much time worrying about whether the church corporation itself had religious rights. After all, at least one of the plaintiffs could raise the claim for a RFRA exemption, so why quibble over who gets to be a plaintiff?

Something similar happened in another case that Alito mentioned, Church of the Lukumi Babalu Aye, Inc. v. Hialeah, involving a ban on animal slaughtering practices that was targeted at the Santería religion. The case is named after the first plaintiff on the complaint: the church corporation. But it could just as easily been calledPichardo v. Hialeah, after the other plaintiff: Ernesto Pichardo, a Santería priest, who was listed second. And the religious rights of Santería practitioners like Ernesto Pichardo, not any corporation’s rights, were at stake in the case. Indeed, the Supreme Court opinion focused on the “religious exercise of Santería churchmembers.” Same with another case that Alito cited, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, which held that churches are exempt from discrimination law when hiring and firing ministers. The problem with applying discrimination law to ministers isn’t that the government is forcing a minister on the church corporation, but on its congregants.

We can now understand the court’s previous cases in a new way. When an incorporated church challenges a restriction on its members’ right to engage in religious activities, it can do so not because the corporation itself has any religious rights, but because its members have religious rights.

So both the majority and the dissent in Hobby Lobby got it wrong: O Centro and similar cases don’t establish that nonprofit corporations have a special status under the law of religious exercise. Rather, they’re just examples of an associational standing concept that applies across many different areas of law. The church corporations didn’t have, and didn’t need, their own religious rights; they were just asserting the rights of their members using associational standing.

Once we understand O Centro and related cases in this way, we see that both Alito’s majority opinion and Justice Ginsburg’s dissent asked the wrong question in Hobby Lobby. The question shouldn’t be whether the court’s “tradition” of “special solicitude” for nonprofit corporations raising religious freedom claims should be extended to for-profit corporations. Rather, we start with the baseline assumption that corporations don’t have religions and ask whether for-profit corporations can use associational standing to represent their investors’ religious claims in court.

The Supreme Court has addressed this issue in other contexts. Membership-oriented nonprofit organizations, the court has explained, can typically rely on associational standing because “the primary reason people join an organization is often to create an effective vehicle for vindicating interests that they share with others.” And with a nonprofit, we rarely worry about whether an organization seeking a religious exemption is truly representing the religious interests of its members, or whether it’s all a money-making ruse, since the nonprofit can’t distribute extra funds as profits.

That’s not true of business corporations. They don’t have members—they have investors. They aren’t associations of individuals joined together for a common religious purpose—they’re separate legal entities that are authorized by state law to issue stock to be purchased by stockholders. These corporations can’t raise associational standing claims on behalf of their stockholders.

That’s not to say that for-profit business corporations can never raise someone’s religious claims. In some cases, a business can argue that the rights of a third party are being violated, but the third party isn’t in a good position to bring the case directly. For example, if the government banned kosher slaughter, a kosher food company could challenge the law by arguing that its customers’ religious rights were at stake. The company might argue that it could hire fancier lawyers than individual customers and it would have factual information about slaughterhouse practices that customers wouldn’t have. And it would be arguing for a well-established standing exception, not a radical extension of the law.

But in Hobby Lobby, these factors didn’t apply. The company didn’t bring its claims on behalf of its customers, or employees—indeed, it essentially brought its claim against its employees’ interests.

So the question that the court should have asked was whether Hobby Lobby—a corporation with no religion, which has special state-granted privileges that (unlike a nonprofit) enable it to accumulate much more wealth for its investors than would be possible without the privileges of incorporation—should be able to use associational standing to raise those investors’ claims. And under traditional rules of both standing and corporate law, corporations aren’t associations of their stockholders and can’t raise these types of claims.

Why does this way of thinking about corporate rights claims matter?

First, this approach will help us think more clearly about religious nonprofit organizations that aren’t churches, like religiously-affiliated hospitals. It forces us to ask: exactly whose religious rights are they claiming?

Second, the court often works out its corporate rights thinking with non-profits and then extends those rights to business corporations. For example, consider Citizens United, which allows unlimited corporate spending in elections. The court started by describing Citizens United itself (a nonprofit) as an “association of citizens” and then generalized to all corporations, including multinational conglomerates. Similarly, in Hobby Lobby, the majority started by wrongly assuming that O Centro and similar cases had already established that nonprofit corporations could raise religious claims (when in fact the better analysis involved associational standing) and then generalized to for-profit corporations. The more the justices do this, the easier they’ll find it to blur the differences between a citizens’ association and a for-profit business corporation.

In Hobby Lobby, a misinterpretation of a few cases involving churches and their worshippers led to 13,000 employees of a for-profit retail enterprise losing insurance coverage, as will many thousands more working at other companies trying to claim this new exemption. To fix this, we must start with one basic premise: corporations, no matter what type, are not people.
Ron Fein is the Legal Director for Free Speech for People. He submitted an amicus brief to the Supreme Court in the Contestoga Wood Specialties Corporation case.

Suggested citation: Ron Fein, Why Every Single Supreme Court Justice Got Hobby Lobby Wrong, JURIST- Hotline, Sep. 18, 2014,


KY Human Rights Commission rules on discrimination complaints at its September 2014 meeting

Thursday, September 25th, 2014


Press Release Date: Thursday, September 18, 2014
Contact Information: Victoria Stephens
Commission Headquarters: 1.800.292.5566
Stephens’ Mobile telephone: 502.641.0760

Sept. 18, 2014, Louisville, Kentucky USA– The Kentucky Commission on Human Rights Board of Commissioners met today to rule on discrimination complaints for the people of Kentucky. The meeting was held at commission headquarters in downtown Louisville, Ky.

The commission ruled to approve one conciliation agreement; it approved two case withdrawals that were resolved with private settlements after it was known the commission had filed the complaint. It approved three case withdrawals, giving complainants the right to file private suits. The board ruled to dismiss nine complaints with findings of no probable cause to evidence that discrimination occurred and dismissed three complaints without prejudice.

Conciliation agreements are similar to settlement agreements and are negotiated by commission representatives. Respondents participating in the agreements deny any allegations of unlawful discrimination and violations of civil rights law. Following is a summary of the conciliation agreement approved at the meeting:

Carolyn Sheffer v. Western Kentucky Senior Citizens Union Labor Housing Inc., doing business as, Jackson House Apartments, Linda Williams, Michelle Powell and Shannon Tutor., in Paducah, Ky.: Carolyn Sheffer complained to the commission on June 4, 2014, that she was discriminated against by the landlords where she lived based on disability in the area of housing. This would be a violation of the Kentucky Civil Rights Act (Kentucky Revised Statutes Chapter 344) and the U.S. Fair Housing Act. Sheffer claimed that at the rental property where she lived located at 301 South Ninth Street, in Paducah, the respondents regularly supplied a van for residents who wanted to travel to town for shopping and activities. She said she was denied boarding the van because she uses a wheelchair and needed assistance from others to board the van.  The respondents denied all allegations of unlawful discrimination and asserted that is the tenants’ responsibility to board the van under their own power, and if the tenant cannot board the van, then the respondents cannot take them on the trip. Prior to a determination, the commission was able to assist the parties in resolving the matter with a conciliation agreement. The respondents agreed to provide additional transportation for tenants who cannot board the respondents’ van without assistance. They agreed to undergo fair housing training and submit to compliance monitoring and compliance reporting to the commission.

The Kentucky Commission on Human Rights is the state government authority that enforces the Kentucky Civil Rights Act, and through its affiliations with the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Dept. of Housing and Urban Development (HUD), enforces the United States Civil Rights Act.

The Kentucky Civil Rights Act makes it illegal to discriminate against people in the areas of employment, financial transactions, housing and public accommodations. Discrimination is prohibited based on race, color, religion, national origin, gender, and disability. In employment, discrimination is further prohibited on the basis of age (40-years and over) and tobacco-smoking status. In housing, discrimination is further prohibited based on familial status, which protects people with children in the household under the age of 18-years old and protects women who are pregnant.

For more information, contact the commission at 1.800.292.5566. For details about civil rights and commission activities, visit the website at For news about civil rights and information pertaining to protected classes, visit the Kentucky Commission on Human Rights Facebook and Twitter sites.

Grand Rapids lawyer hopes to defend Sherlock Holmes’ copyrights in case before U.S. Supreme Court

Thursday, September 25th, 2014


By Jim Harger | 

on September 22, 2014 at 7:30 AM, updated September 22, 2014 at 7:33 AM



John M. Bursch, a partner with the Grand Rapids law firm of Warner Norcross & Judd, is appealing a copyright case for the estate of Sir Arthur Conan Doyle to the U.S. Supreme Court.Jim Harger | Mlive Media Group

GRAND RAPIDS, MI – Call it the “Case of the Missing Copyright.”

Sherlock Holmes may not be around to solve it, but John J. Bursch, a Grand Rapids lawyer representing the estate of Sir Arthur Conan Doyle hopes he can convince the U.S. Supreme Court to protect the copyright surrounding the author’s most famous character.

Bursch, a partner with the Grand Rapids law firm of Warner Norcross & Judd, is leading a team of attorneys that hopes the Supreme Court will grant a hearing to a copyright dispute between the Doyle estate and Leslie Klinger, an author who wants to use the Sherlock Holmes character in a book he has written.

“The estate of Sir Arthur Conan Doyle absolutely has the right to protect the copyrights of the Sherlock Holmes character,” said Bursch, who argues that Doyle’s stories are still protected under a 1919 law that preserves an author’s copyright for 95 years. Doyle published his last 10 Sherlock Holmes stories in 1927.

Bursch said conflicting rulings by several federal appeals courts make this case ripe for the high court’s consideration. While the Doyle family has been agreeable to license references to the famous detective in books, movies and television shows, Klinger has argued he does not need to seek their permission prior to publication.

“This lawsuit affects so much more than 10 Sherlock Holmes stories,” Bursch said. “Other affected characters include such treasures as A.A. Milne’s Winnie the Pooh, Dr. Seuss’ Cat in the Hat, Ian Fleming’s James Bond, DC Comics’ Superman and many others.”

For the Doyle estate, Klinger’s book may not be a big deal, Bursch said. The family has charged Klinger $5,000 plus a small royalty for a previous book that invoked Sherlock Holmes.

But the copyright could become more lucrative for the next movie that refers to the famous character, he said.

Bursch said they hope to learn this fall if the high court will hear their appeal. If the justices grant “certiorari” to hear the case, Bursch will be in familiar territory.

The 42-year-old Caledonia father of five has argued before the U.S. Supreme Court eight times in the past four years as Michigan’s Solicitor General and a Warner partner. The Wall Street Journal estimated Bursch was involved in 30 percent of the cases identified as the “biggest” of court’s last term.

It’s an unusual stage on which to practice law,” Bursch said. While lawyers are given 60 minutes to present their case, most of that time is spent answering questions the justices fire at them.

“It’s an interesting skill you have to develop,” said Bursch. Instead of reading from prepared remarks, the lawyers have to make sure their points are made as they respond to the questions from the bench.

Bursch, who said he had six wins and two ties in his eight appearances before the high court, treasures a handwritten note in which Supreme Court Justice Elena Kagen complimented his work in a note to his former boss, Michigan Attorney General Bill Schuette.

Though he’s a heavy-hitter in the courtroom today, the 42-year-old Grand Ledge native did not start out with a legal career in mind. He graduated from Western Michigan University with a degree in music and mathematics.

He went on to earn a law degree at the University of Minnesota before returning to Michigan and Grand Rapids, located halfway between his parents and his in-laws, Bursch said.

Jim Harger covers business for MLive/Grand Rapids Press. Email him or follow him on Twitter or Facebook or Google+.

Courts Nix More Software Patents Decisions Follow Supreme Court Ruling on Intellectual-Property Protection

Thursday, September 25th, 2014


Sept. 21, 2014 7:48 p.m. ET


It’s open season on software patents. 

That’s the message federal courts have sent in recent weeks after a U.S. Supreme Court ruling in June that tackled the question of whether—and when—computer programs can qualify for intellectual-property protection.

Since the country’s top court struck down patents on a computer program that reduces risk in financial transactions, federal trial courts have rejected software patents in nine cases, according to Lex Machina, which supplies patent data to lawyers. The U.S. Court of Appeals for the Federal Circuit, which sets much of the nation’s patent law, has nixed software patents in three others.

Software Slump

Courts have been taking the ax to software patents.

  • July 8: A U.S. court in New York invalidated a patent for an online dieting tool.
  • July 17: A federal appeals court struck down a patent on the idea of keeping the look of digital photos consistent when moved across devices.
  • Aug. 26: A federal appeals court in Washington nixed a computer-bingo game patent.
  • Sept. 3: A federal court in Texas invalidated a patent on the idea of using a computer to convert one retailer’s reward points to another’s.

Source: WSJ research

Among the invalidated patents was one involving an online dieting tool, another for a computer bingo game, and yet another for using a computer to convert reward points from one company’s loyalty program to another’s.

The trend represents a worst-case scenario for patent-licensing firms, which their detractors call “patent trolls.” In recent years, such firms have bought up masses of patents on software and other technology, hoping to make money by licensing those patents to other companies or suing them for patent infringement.

Knocking down flimsy software patents, some patent experts say, will help keep these licensing firms in check.

But the recent court rulings, including those from the Federal Circuit, which sets much of the nation’s patent law, have also triggered a broader concern.

Some patent experts wonder whether the rationale behind the Supreme Court ruling—that some software patents describe ideas that are too “abstract” to warrant legal protection—might ultimately affect patents in other fields, such as biotechnology and medical diagnostics.

“This is only the beginning of the fallout,” said Mark Lemley, a patent lawyer and law professor at Stanford University.

In the Supreme Court case, known as CLS Bank International v. Alice Corp., the court was asked to consider whether software could be patented at all—a question courts have largely left unanswered for years.

The high court’s unanimous opinion, written by Justice Clarence Thomas, said that for a software patent to be valid, it must describe more than an old idea, such as escrow, simply applied to a computer.

The court “has changed things fundamentally,” said William Lee, a leading patent litigator at Wilmer Cutler Pickering Hale & Dorr LLP in Boston. Mr. Lee said he thinks the CLS Bank ruling, and its aftermath, might prompt some inventors and “endlessly creative lawyers” to rely on trademark or trade-secrets law, rather than patent law, to protect their ideas.

Since mid-June, lower courts have invalidated one software patent after another. In July, the Federal Circuit struck down a patent—originally granted to Polaroid Corp.—on a way to ensure that digital images maintain their original color and proportions when moved from one device to another. This month, the Federal Circuit ruled against a patent that described the process of using a guarantee from a third party to ensure an online transaction.

Some patent lawyers think the reckoning is long overdue. “Many of these patents are just taxes and impediments to those companies that are doing the hard work of building products and putting them in the hands of customers,” said Suzanne Michel, senior patent counsel at Internet giant Google Inc. GOOGL -1.44% ”This is a good thing for innovation.”

In the mid-1990s, the Patent and Trademark Office began granting a flood of patents for computer programs. Many of those patents ultimately ended up in the hands of patent-licensing firms, which used them to file thousands of infringement suits, typically against well-heeled corporate defendants.

Rather than spending the time and money to fight these infringement claims all the way to trial, many companies paid relatively small sums—often in the five-figure range—to settle the suits and put the dispute behind them.

But the CLS Bank ruling, and its aftermath, has raised hopes among some of these repeat defendants that federal courts will continue to crack down on patents used largely in licensing and litigation, especially those related to software.

Others, however, question whether the crackdown on software patents is for the best. Their fear: that courts may start invalidating patents on other ideas, especially those requiring costly research-and-development efforts.

“You need strong legal protections to spur invention, bring ideas to market,” said Timothy Holbrook, a patent expert and law professor at Emory University. “I worry about those protections falling away.”

Write to Ashby Jones at




Who Has Standing?

Thursday, September 25th, 2014

Jurist – Tuesday 23 September 2014 at 2:00 PM ETedited by Michael Finley

JURIST Guest Columnist Omar Subat, St. John’s University School of Law, Class of 2015, is the author of the second article in a twelve-part series from the staffers of the Journal of Civil Rights and Economic Development. Subat discusses the US Supreme Court’s decision in Hollingsworth v. Perry holding that the proponents of Proposition 8 did not have Article III standing to appeal in federal court…

June 26, 2013 was a day of celebration for gay and lesbian advocates across the state of California and the country. In Hollingsworth v. Perry, the Supreme Court declined to overturn a US District Court’s ruling invalidating California’s Proposition 8, which limited the validity and recognition of marriage in California to strictly opposite-sex couples. However, the court’s ruling did not just invalidate Proposition 8; the court reached its decision not by holding that Proposition 8 itself was unconstitutional, but on the grounds that the initiative proponents did not have the standing necessary to have the court litigate the constitutionality of the initiative.

This holding is troubling as it gives state executives like the governor or attorney general, the power to “veto” and undo valid initiatives passed by a majority of voters by simply refusing to defend the initiatives in court. This power undermines the strength and ultimate purpose of the initiative process, which enacts state laws without the approval of the state’s legislature and executive. California and 25 other states use ballot initiatives to enact laws and the Supreme Court’s holding in Hollingsworth compromises the strength and legitimacy of those laws.

The appellants in Hollingsworth filled a void left by then-governor Schwarzenegger and former California attorney general Jerry Brown after a lesbian couple sued the state executives on the grounds that the new law violated the Constitution. Both officials refused to defend Proposition 8 at trial or appeal the district court’s August 2010 ruling in Perry v. Schwarzenegger that overturned it. The ruling also made the 100-year-oldCalifornia initiative power much more vulnerable.

Proposition 8 amended Article I, Section 7.5, of the California Constitution to state that “Only marriage between a man and a woman is valid or recognized in California.” On November 4, 2008, Proposition 8 wasenacted [PDF] with 52.3% of the vote. Kristin Perry and Sandra Stier sued Schwarzenegger and Brown, alleging that Proposition 8 deprived them of “due process and of equal protection of the laws contrary to the Fourteenth Amendment.” Schwarzenegger and Brown refused to defend Proposition 8 in district court, leaving a giant void in the litigation, as there was no remaining defendant willing to defend Proposition 8 and the state’s interest. The official proponents of Proposition 8, led by State Senator Dennis Hollingsworth attempted to intervene and fill that void and were allowed to stand in the place of the state officials who refused to defend Proposition 8.

After a lengthy trial, Chief Judge Vaughn R. Walker held that Proposition 8 was unconstitutional as it violated the Equal Protection Clause of the Fourteenth Amendment. Proposition 8′s sponsors attempted to appeal the decision, leading the US Court of Appeals for the Ninth Circuit to certify a question to the California Supreme Court asking whether the sponsors of an initiative had the authority to assert the State’s interest. The California Supreme Court concluded that the initiative sponsors could assert California’s interest, at least from a state law concept of standing. On February 7, 2012, the Ninth Circuit in Perry v. Brown held Proposition 8 was unconstitutional by a vote of 2-1. Once again, the initiative proponents appealed.

On June 26, 2013, the Supreme Court rendered a 5-4 decision in Hollingsworth v. Perry that the proponents of Proposition 8 did not have Article III standing to appeal in federal court. Chief Justice Roberts, writing the majority opinion, concluded that Proposition 8′s proponents could not invoke the standing afforded to them by California’s Supreme Court because a “litigant must assert his/her own rights and cannot claim relief through intervention of a third party.” Roberts wrote: “standing in federal court is a question of federal law, not state law.” The Supreme Court did not address the underlying substantive merits of Proposition 8. Justice Kennedy dissented, writing: “The very object of the initiative system is to establish a lawmaking process that does not depend upon state officials…Giving the governor and attorney general this de facto veto will erode one of the cornerstones of the state’s governmental structure.”

Even gay marriage advocates voiced concern for the initiative system. California Lieutenant Governor Gavin Newsom, who as mayor of San Francisco oversaw an administration that married thousands of gay couples in contravention of the Proposition 8 ballot initiative, expressed concern over the court’s holding, stating: “You’d be hard pressed to find someone more enthusiastic about the outcome of the Supreme Court decision. But, I do think that the decision raises legitimate questions that are very problematic in the future.” Charles Moran, an openly gay political consultant and chairman of the California Log Cabin Republicans similarly stated: “This could have long-term impacts on elective politics…Anytime somebody has a statewide ballot initiative I think there’s a new question that has to be asked: Will this pass the smell test of the Attorney General and the Governor.”

To eliminate this “de facto veto,” California should enact a law that would require a ballot measure’s proponents to petition the state’s highest court for a special attorney to be appointed when a state’s elected officials refuse to defend a ballot initiative. With this proposed solution, it will still be the state of California defending the initiative, albeit through a Special Attorney of the state. This mechanism will insure that any law enacted through a ballot initiative will be given a full defense on its merits. And once such a defense is made, the law will still have to endure a constitutionality test on appeal. The only requirement would be that the proponents would have to make a preliminary showing to the state’s highest court that the ballot measure did not violate state or federal law. This preliminary showing is analogous to the requirement that a party seeking a preliminary injunction must make, which is demonstrating a substantial likelihood of success on the merits to a court. This law would insure that state executives would not have a de facto veto as described by Justice Kennedy, allowing them to undo state ballot initiatives.
Omar Subat received his B.A. in political science from the University of California, Santa Barbara and is currently a student at St. John’s University School of Law. Subat currently serves as Symposium and Executive Articles editor for the Journal of Civil Rights and Economic Development.

Suggested citation:Omar Subat, Who Has Standing, JURIST – Student Commentary, September 23, 2014,


Thursday, September 25th, 2014


Sept. 22, 2014

A former Lexington attorney was sentenced Monday to 20 years in prison for defrauding more than 250 victims out of $4 million through various schemes, one of which involved the notorious fen-phen diet drug case.

Seth J. Johnston, 35, pleaded guilty in October 2013 to charges of wire, mail and tax fraud and to obstruction of justice and distribution of synthetic marijuana.

U.S. senior District Judge Joseph M. Hood also imposed three years of supervised release once Johnston gets out of prison.

“Mr. Johnston relentlessly pursued a course of criminal conduct that is breathtaking in both its scope and audacity,” said Kerry B. Harvey, U.S. attorney for the Eastern District of Kentucky. “He seemingly missed no opportunity to defraud those with whom he dealt; often abusing his status as an attorney to do so. The sentence imposed today is just punishment for reprehensible conduct that victimized so many who placed their trust in Mr. Johnston.”

Johnston must serve 85 percent of his prison sentence under federal law.

Johnston’s fraud included the following.

â–  Responsible for collecting money for plaintiffs in a civil lawsuit as part of a settlement regarding the diet drug fen-phen. Johnston diverted $14,963 of the collected money for his own use. According to the U.S. Attorney’s Office, “Angela Ford, the Lexington attorney representing the plaintiffs in the lawsuit, hired the law firm where Johnston worked to garnish assets of the defendants in that lawsuit, William Gallion, Shirley Cunningham and Melbourne Mills, Jr. This fraud scheme started in 2008 and continued through 2010.”

â–  Johnston diverted a significant amount of $3.5 million of Ford’s money that she wanted held in multiple corporate accounts. Johnston admitted to taking the money for his personal use and to buy property for other clients.

â–  He diverted about $1.1 million that should have gone to heirs of an estate for which he worked.

â–  He used $100,000 to buy synthetic marijuana to be distributed in Lexington.

â–  He told witnesses to destroy documents investigators wanted.

â–  He reported taxable income in 2011 of $26,372 when his income was $208,950.
Read more here:

SUPREME COURT JUSTICE Roberts on Brief-Writing: ‘Be Concise’

Thursday, September 25th, 2014

Tony Mauro, Supreme Court Brief    |

United States Chief Justice John G. Roberts Jr. speaks at the University of Nebraska College of Law. Roberts participated in a public conversation with the Honorable William Jay Riley, chief judge of the U.S. Court of Appeals for the Eighth Circuit. September 19, 2014.

Craig Chandler / University Communications

A warning to lawyers who are drafting U.S. Supreme Court briefs this fall: Chief Justice John Roberts Jr. would like you to take a red pencil and lop off 15 pages of verbiage.

Roberts did not say this in so many words, but in a question-and-answer session in Nebraska September 19, the chief justice made it abundantly clear that as he enters his tenth year on the court, he is fed up with lengthy briefs. (His comments begin at the 20-minute mark.)

Chief Judge William Riley of the U.S. Court of Appeals for the Eighth Circuit led the conversation at the University of Nebraska College of Law, before a mix of 500 students, lawyers and judges.

When Riley asked the chief justice for tips on writing persuasive briefs, Roberts answered without hesitation: “I know that every judge in this room will agree with me: Be brief! Be concise.”

For most Supreme Court briefs, Roberts said, lawyers are limited to roughly 50 pages. The court’s rules put the limit in terms of words, not pages—15,000 words to be exact—but that works out to between 50 and 55 pages. As a result, Roberts said with a long-suffering tone, “every brief you pick up is 50 pages—every one of them, the next one, and the next one, and the next one.”

But then, he said, “all of a sudden, you pick up a brief that’s 35 pages long. The first thing you do is look at the cover, because you like that lawyer.”

Roberts continued, “The second thing you think is, ‘He may have a good case, if it only takes 35 pages for him to lay out what the argument is.’ And you’re going to read that brief a lot more carefully, frankly, than you do with the one that’s 50 pages where you feel they are filling the brief.”

Once an appellate brief writer himself, Roberts has argued for brevity before. In 2007, he told legal writing expert Bryan Garner drily, “I have yet to put down a brief and say, ‘I wish that had been longer.’”

But his Nebraska comments about brief-writing were more pointed and impassioned than before. And his complaints were not limited to length. Briefs should be balanced as well, he said.

“Put yourself in the judge’s position,” Roberts told the audience. “So many briefs say the case is so clear, that the statute can have no other meaning and … your client should clearly win. You pick up the next brief, and it’s the same on both sides.”

When both sides tell the court that their position is the only possible way to rule, Roberts continued, “They’re telling you basically that you are going to be an idiot whichever way you rule.”

It is far preferable, Roberts said, to read a brief that starts out with, “This case is a very difficult, close question, and there are good arguments on both sides.”

Acknowledging that the opponent has a plausible argument—and then answering it—is the right approach, Roberts said.

“You’re going to read that [brief] more seriously, because here is somebody who understands how hard my job is,” he said.

Read more:

Grant Pays Lawyers to Represent Undocumented Children

Thursday, September 18th, 2014


Karen Sloan, The National Law Journal

September 16, 2014

The arrival this summer of thousands of Central American immigrant children, like these housed at the U.S. Customs and Border Protection Nogales Placement Center in Arizona, exacerbated an existing shortage of lawyers to help process immigration cases for unaccompanied minors. Now the Department of Justice has come up with money to help.Photo: Ross D. Franklin/AP

For unaccompanied children seeking asylum in the United States, having a lawyer can make the difference between winning permission to stay and deportation. That harsh reality was true even before the recent wave of Central American children began surrendering on the Southwest border.

But the crush of new arrivals has inundated immigration courts and led to additional delays for children already here without a legal guardian and awaiting their day in court. Now the U.S. Department of Justice and a coalition of legal aid providers have launched an effort to provide attorneys for these unaccompanied children.

The department has set aside $1.8 million for a new AmeriCorps program that will send approximately 100 lawyers and paralegals into the field for two years each to represent such children in immigration proceedings.

“There is a huge issue with kids who came here a couple of years ago,” said David Stern, executive director of Equal Justice Works, the largest grant recipient. “When their hearings come up, they get deported without their claims being addressed. Having the opportunity to be able to present their claims is so important, and representation is critical.”

The bulk of the Justice Department grant—$1.2 million—Stern’s organization will share with the Catholic Legal Immigration Network Inc.; Kids in Need of Defense; and the U.S. Committee for Refugees and Immigrants. Equal Justice Works is a Washington nonprofit organization that supports public-interest law careers.

The remaining $600,000 will go to six legal aid providers around the country.

According to the Justice Department, the attorneys will serve children in Atlanta, Baltimore, Boston, Charlotte, Chicago, Cleveland, Dallas, Denver, Detroit, El Paso, Las Vegas, Miami, New York, Phoenix, San Antonio, San Diego and Seattle.

By December, Equal Justice Works hopes to recruit 45 young attorneys and 10 paralegals, train them and send them to work at their partner organizations for two-year fellowships.

The fellows primarily will represent children who have been in the country for more than a year and are living with relatives—not those among the border influx who are being housed in government facilities, Stern said.

“The increasing numbers of unaccompanied children appearing in our immigration courts present an urgent challenge: how best to conduct immigration proceedings more efficiently while maintaining our commitment to following the procedures required by law and protecting the rights these children,” Attorney General Eric Holder said.

A study of unaccompanied children in immigration proceedings by Syracuse University’s Transactional Records Access Clearinghouse found that they had legal representation in 52 percent of closed proceedings during the past decade. Less than one-third have been able to consult an attorney in pending cases.

Access to an attorney made a significant difference in outcomes. Children with lawyers were allowed to remain in the country in 47 percent of the cases, the study found. By contrast, only 10 percent of children without a lawyer were allowed to remain.

Deportation hearings can be a matter of life and death for children fleeing countries where they risk being recruited into gangs and face death threats, Stern said.

“Without a lawyer, judges don’t know how to elicit the relevant information and the kids don’t know how to provide it,” he said. “These kids are deer in the headlights in the court system.”

Equal Justice Works aims to recruit law graduates with some experience in immigration law while in law school, who speak Spanish and who want to pursue careers in immigration law. With only weeks to fill its roster of fellows, the organization is spreading the word among law schools and other immigration law programs.

For instance, organizers plan to work with New York City’s Immigrant Justice Corps to identify promising candidates that fledgling program lacked room for.

Stern expects to have far more applicants than the program can accommodate, in part because a large number of young lawyers want to practice immigration law but few positions are available.

The Equal Justice Works fellows will earn about $41,000 a year. The Justice Department covers $19,000 of that amount, but the organization raised an additional $1.7 million in private money for housing, transportation and food allowances. (AmeriCorps rules cap participant salaries at $24,000.)

The program can only recruit top candidates by supplementing the salaries covered by the Justice Department, Stern said. About 50 law schools have agreed to pay $5,000 each to support participating graduates from their own programs.

Fellows are expected to handle about 50 cases per year.

“This issue is huge. One hundred AmeriCorps Justice fellows will not solve the problem, but it will make a dent along with other things such as pro bono representation and reduced-rate representation,” said Jeanne Atkinson, executive director of the Catholic Legal Immigration Network. “We’re delighted with the program and ultimately I think it will save lives.”

Contact Karen Sloan at

Read more:


Wednesday, September 17th, 2014


RICHMOND, Va. (AP) — A federal appeals court heard arguments Wednesday on whether jailers should be allowed to strip search people who are arrested but still awaiting arraignment.

The cases out of West Virginia and Maryland pit individual privacy rights against the security needs of jails. A decision by the three-judge panel of the 4th U.S. Circuit Court of Appeals, which conducted back-to-back hearings on the issue, is expected in a few weeks.

Both lawsuits were filed before the U.S. Supreme Court’s 2012 ruling that jailers may perform invasive strip searches on people arrested even for minor offense. However, plaintiffs’ attorneys said that 5-4 decision dealt with a person who was placed in the general jail population after arraignment. They also pointed to concurring opinions by two justices who questioned whether the ruling in the New Jersey case should apply to detainees held apart from other inmates.

But appeals court Judge J. Harvie Wilkinson III noted that those two justices ultimately joined in a majority opinion that discussed at length the discretion that should be afforded correctional officers, the difficulty in classifying inmates and the dangers posed by contraband smuggled into jails.

“I worry that if we go too far in your direction, we leave people vulnerable and exposed,” Wilkinson told Elmer Robert Keach III, attorney for two men who unsuccessfully sued theWest Virginia Regional Jail and Correctional Facility Authority after they were strip-searched and subjected to genital delousing.

David Mincer, attorney for the regional jails, said jailers have a virtually unlimited right to conduct strip searches — including visual body cavity searches — because it’s almost a certainty that anyone arrested will be detained with other inmates.

“In our system, there is not the potential for a detainee to be isolated,” he said.

Keach said he shares the concern about contraband, but blanket strip searches go too far.

“This case has caused me to have caution about sending my children to college in West Virginia, that’s for sure,” he said.

The Maryland case also challenged the strip searches of people arrested on minor charges and detained in an area separate from the general jail population. A judge ruled in favor of Baltimore officials, including the warden of the Baltimore Central Booking and Intake Center.

Barrett S. Litt, attorney for the plaintiffs, noted that detainees are booked on a floor separate from the general jail population. He said court precedent at the time the lawsuit was filed prohibited strip searches when a person is arrested on a minor charge and there is no “reasonable suspicion” that the detainee has contraband.

William F. Brockman of the Maryland attorney general’s office argued that the prevailing law at the time was not clear, which is why the Supreme Court took the New Jersey case.

He also said “reasonable suspicion” is not a workable distinction in a booking facility that processes up to 400 people some days.

Appeals court Judge James A. Wynn suggested something more important than workplace convenience is at stake.

“We’re talking constitutional rights here,” he said.


Ginsburg: Marriage rulings in 6th Circuit likely to dictate high court’s urgency

Wednesday, September 17th, 2014


Tuesday, September 16, 2014


U.S. Supreme Court Justice Ruth Bader Ginsburg

MINNEAPOLIS — People seeking clues about how soon the Supreme Court might weigh in on states’ gay marriage bans should pay close attention to the 6th Circuit Court of Appeals, Justice Ruth Bader Ginsburg told a Minnesota audience Tuesday.

Ginsburg said cases pending before the circuit covering Kentucky, Michigan, Ohio andTennessee would probably play a role in the high court’s timing. She said “there will be some urgency” if that appeals court allows same-sex marriage bans to stand. Such a decision would run contrary to a legal trend favoring gay marriage and force the Supreme Court to step in sooner, she predicted.

She said if the appeals panel falls in line with other rulings there is “no need for us to rush.”

Ginsburg didn’t get into the merits of any particular case or any state’s gay marriage ban, but she marveled at the “remarkable” shift in public perception of same-sex marriage that she attributes to gays and lesbians being more open about their relationships.

Same-sex couples can legally wed in 19 states and the District of Columbia. Bans that have been overturned in some other states continue to make their way through the courts.

“Having people close to us who say who they are – that made the attitude change in this country,” Ginsburg said at the University of Minnesota Law School.

The Supreme Court returns from a summer recess in early October. Ginsburg wasn’t the only justice on the lecture circuit Tuesday; Justice Clarence Thomas was addressing a gathering in Texas.

Thomas, one of the court’s conservatives, expressed his firm belief in the strict construction of the Constitution during his appearance at the University of Texas at Tyler. As a judge, Thomas said, he’s “not into creative writing,” the Tyler Morning Telegraph reported.

And Thomas said he’s motivated by the belief that if the country “is not perfect, it is perfectible.”

Fifteen months ago, the high court struck down a provision of the federal Defense of Marriage Act that denied a range of tax, health and veterans benefits to legally married gay couples. Rulings invalidating state gay marriage bans followed in quick succession.

Ginsburg spent 90 minutes before an audience of hundreds discussing her two decades on the Supreme Court as well as her days as anAmerican Civil Liberties Union lawyer. In a question-and-answer period, she predicted that cases dealing with the environment and technology would make for watershed decisions in years to come.

Privacy of information carried on smartphones in the context of criminal searches could be particularly big, Ginsburg said. “You can have on that cellphone more than you can pack in a file cabinet,” she said.

The liberal justice said the court is the most collegial place she has worked as she fondly described her close relationship with conservative Justice Antonin Scalia. She made sure to plug a comic opera about the two of them – “Scalia/Ginsburg” – that will debut next year in Virginia.

And the 81-year-old Ginsburg elicited plenty of laughter by highlighting a Tumblr account about her called the “Notorious R.B.G.” and a never-realized dream job.

“If I had any talent God could give me, I would be a great diva,” she said.

© 2014, Associated Press, All Rights Reserved.