Archive for February, 2015

When police kill, many questions must be answered

Tuesday, February 3rd, 2015


When police kill, many questions must be answered



February 3, 2015 Updated 6 hours ago


 Hardly a week goes by without another tragic story about a police shooting. But rarely does one read an explanation of what the law is regarding such distressing events. When may a police officer use deadly force either (1) in personal self-defense or the defense of another, or (2) to apprehend a person suspected of crime? And when is the use of such force unlawful? The fundamental answers are in our Constitution’s Fourth Amendment and in Supreme Court cases interpreting that amendment’s prohibition against “unreasonable seizures” of persons, which govern shooting a suspect or using force to make an arrest.

The general law of self-defense authorizes law enforcement officers to use deadly force against a suspect only to defend either themselves or others against the imminent use of deadly force, defined as force likely to cause death or serious physical injury. To be lawful, an officer’s belief of the need to use deadly force must be objectively reasonable in light of the facts and circumstances confronting the officer. An officer’s good intentions alone will not make an objectively unreasonable use of force constitutional.

What about using force to apprehend a fleeing suspect? The Supreme Court addressed this issue in 1985 in Tennessee v. Garner. The issue in Garner was whether it was a reasonable seizure for police to shoot and kill Garner, an unarmed, nonviolent teenager simply fleeing from the scene of a burglary, a suspect who did not pose an immediate threat to anyone in the vicinity, including the police. The court held that Garner’s deadly seizure under these nonthreatening circumstances was not objectively reasonable, and the court reinstituted the civil lawsuit brought by his father for allegedly violating his son’s civil rights.

In the court’s opinion, Justice Byron White not only explained the court’s cogent reasoning in coming to its conclusion, but then discussed the circumstances under which the use by an officer of deadly force against a fleeing suspect would presumptively be reasonable. Justice White said, “It is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.” The simple act of resisting arrest, or of flight to avoid arrest, does not, without more, justify the use of deadly force.

The Garner rule for apprehending a fleeing suspect sets a minimum constitutional standard. Many states and the federal government have tests that are more stringent, such as forbidding the use of firearms except when necessary to prevent death or grievous bodily harm.

In cases involving Fourth Amendment-based allegations of police misconduct, the Supreme Court has admonished judges to evaluate objectively the reasonableness of an officer-in-the-field’s response “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” The court has also ordered judges to make “allowance for the fact that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving.” The test is not whether “in the peace of a judge’s chambers” it seems that what officers did in the field was unnecessary. “Judges should be cautious about second-guessing a police officer’s assessment, made on the scene, of the danger presented by a particular situation.” These rules recognize the extreme dangers of the profession and allow officers to do their jobs without undue fear of subsequent personal liability, even if they make a mistake – as long as the mistake is objectively reasonable.

Why, you might ask, do so many of these cases never get past the prosecutor’s office? Why do they not all go to a trial jury? The reason is the unique ethical responsibility of a prosecutor not to file charges unless the prosecutor believes that a crime has been committed, that there is competent evidence to prove the charges, and that the evidence is of such a convincing nature to convict the suspect beyond a reasonable doubt. This special ethical responsibility exists because a prosecutor represents the government, and the government has no business prosecuting the innocent. A prosecutor is duty-bound never to make an argument in court that is not supported by the facts and the law. In this respect, a prosecutor at the charging stage is not just an adversary; a prosecutor is also a minister of justice charged with impartially ensuring that the system pursues justice, not just convictions.

Understanding the actual facts of each case is essential to an accurate application of these rules. Each case is different, and it is a serious mistake to rush to judgment one way or the other based upon the melange of inaccurate and misleading information thrown at us while the dust is still settling. As is the case in most circumstances, the conclusions to which one jumps too early leave the jumper on shaky ground.

Stephen S. Trott, of Boise, is a senior circuit judge on the 9th Circuit Court of Appeals. On Sunday, Trott answered the question: What is a grand jury?

Read more here:


Tort Law: The Muscle of Justice

Monday, February 2nd, 2015


Ralph Nadar  Posted: 02/02/2015 2:51 pm EST Updated: 27 minutes ago


The common law of torts, which originated from English common law, has been elaborated in tens of thousands of judicial decisions with one basic message: If a person suffers a wrongful injury or harm, he or she can seek remedy in court with a trial by jury. Through tort law, our civil justice system operates to compensate victims, punish perpetrators and deter future harms. For years this system has been under sustained assault in Congress and state legislatures. Corporations, with their enormous lobbying influence, have few qualms about lobbying to limit Americans’ right to their day in court.

Tort law is one of the major pillars of our legal system. It provides crucial protections for individuals. Tort law has helped people harmed by defective products, medical malpractice, toxic chemical spills and much more. It sees that families are compensated for devastating losses; prevents future injuries, deaths or accidents by deterring dangerous products and practices; and spurs safety innovation and enforceable safety standards. Tort law provides a moral and ethical fiber for our society by defining appropriate norms of conduct and care. The late Peter Lewis, the former chairman of Progressive Insurance, once told me that tort law functions as his industry’s incentive for “quality control.”

The ongoing assault on the civil justice system in our country has resulted in a lessened public appreciation of the law of torts. Now comes the American Museum of Tort Law.

In the planning stages for many years, the museum is set to open in the fall of this year in my hometown of Winsted, Connecticut. The American Museum of Tort Law will be the first law museum in the country. This nonprofit, educational institution will seek to increase citizen understanding of tort law and its pivotal role in the protection of personal freedom and safety of millions of Americans. And it will celebrate the historical and contemporary achievements of the civil justice system.

What one can expect when visiting the museum later this year? Captivating displays will illustrate the history of exemplary cases, incorporating real artifacts and media. The exhibits will tell stories that illuminate the underlying principles of law and appeal to not just members of the legal profession but the many other Americans interested in learning about this important cornerstone of our legal system.

Some notable exhibits are cases that established new precedents for different wrongful injuries, such as the famous T.J. Hooper case. Cases of more contemporary significance range from those harmed by asbestos insulation to those harmed by the tobacco industry and defective motor vehicles.

In addition to housing these and many other physical exhibits, the museum will be an important digital clearinghouse for reports and commentaries on contemporary developments and judicial decisions in tort law. This will be a most valuable resource for students, scholars, the media, and the public.

There are thousands of museums in the United States — ones for every sport, many fruits and vegetables, even 30 timber and lumber museums! But, surprisingly, there are no law museums. The many victories and advancements to health and safety that have come from the law of torts and the constitutional right of trial by jury deserve a serious upswing in public recognition. We hope you will visit this first-of-its-kind institution later this year and be fascinated and enlightened by a unique museum experience.

For more information, visit

Follow Ralph Nader on Twitter:

Kentucky Supreme Court recently issued revised administrative rules governing electronic filing (“eFiling”)

Monday, February 2nd, 2015

By David Kramer

The Kentucky Supreme Court recently issued revised administrative rules governing electronic filing (“eFiling”), effective January 15, 2015. The updated rules, which supersede those issued in May 2014, may be accessed at this link:

Among the revisions are: new rules permitting eFiling in criminal cases; a provision that an error by an eFiler must be corrected within two business days of receipt of a deficiency notice in order to preserve the original timestamp on a NEF (Section 8(3)(b)); a provision that conventionally filed paper documents may be scanned by the clerk and made accessible on CourtNet 2.0 (once the clerk has the technological capability to do so) (Section 8(6)(c)); additional provisions governing disputes to an eFiled document’s authenticity made before and after 14 days of service of the document (Section 10(5)(a) and (b)); a provision for eFiling warning order attorney affidavits (Section 11(2)(a)(v)); and a provision allowing eFiling of proof of service of a subpoena (Section 11(3)).

In separate action, the Administrative Office of the Courts (“AOC”) recently added the following eight Western Kentucky counties to the roster of counties that allow eFiling: Christian, Crittenden, Henderson, Hopkins, McLean, Muhlenberg, Union and Webster. Those counties join the following judicial circuits in permitting eFiling: Boone and Gallatin; Bourbon, Scott and Woodford; Campbell; Clark and Madison; Daviess; Fayette; Franklin; Henry, Oldham and Trimble; Johnson, Lawrence and Martin; and Kenton. AOC’s goal is to have eFiling in all 120 counties by the end of 2015.

To be permitted to eFile, an attorney must be registered to do so after completing certification by attending one of the training sessions periodically put on by AOC.

Practitioners should not confuse eFiling with electronic service under CR 5.02(2), which does not require registration or certification. Rather, the only requirements to make and receive electronic service are having an electronic service address and filing a notice of election of electronic service as provided in CR 5.02(2).

Note: The foregoing post includes commentary reprinted from the forthcoming 2015 supplement to 6 Philipps & Kramer, Rules of Civil Procedure Annotated, 6th ed. (Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2015 Thomson Reuters. For more information about this publication click here.

Court Decisions That Set No Precedent

Monday, February 2nd, 2015


WASHINGTON — In April, a federal appeals court issued a 40-page decision on a serious subject, ruling that a trial judge had unlawfully increased a prison sentence out of vindictiveness.

The decision was a good example of judicial craft, closely reasoned and carefully written. The judges voted 2 to 1, suggesting that the legal question the decision resolved was a hard one.

But the decision was “unpublished,” as are 88 percent of decisions issued by federal appeals courts. That means it set no precedent. It was a ticket good for only one ride.

The decision, from the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., made sure that no one missed this point. Its first word, “unpublished,” was underscored, and it bore a standard legend: “Unpublished opinions are not binding precedent in this circuit.”


Last month, the Supreme Court refused to review the ruling, over the dissenting votes of Justices Clarence Thomas and Antonin Scalia. While explaining why the court should have taken the case, Justice Thomas raised important questions about the vast subterranean body of decisions that do nothing more than resolve one dispute at a time.

“True enough, the decision below is unpublished and therefore lacks precedential force in the Fourth Circuit,” Justice Thomas wrote. “But that in itself is yet another disturbing aspect of the Fourth Circuit’s decision, and yet another reason to grant review.”

He accused the Fourth Circuit of violating its own standards by refusing to publish the decision. He also suggested that the appeals court had acted strategically to avoid review of its ruling.

Supreme Court justices have long been wary of unpublished decisions for that reason. “Nonpublication must not be a convenient means to prevent review,” Justice Harry A. Blackmun wrote in a 1991 dissent joined by Justices Sandra Day O’Connor and David H. Souter.

n a 2006 interview, Justice John Paul Stevens said he was more likely to vote to grant review of such rulings “on the theory that occasionally judges will use the unpublished opinion as a device to reach a decision that might be a little hard to justify.”

These days, technology has turned the term “unpublished” into a misnomer. With the availability of legal databases and websites for courts, almost every decision issued by an appeals court is instantly available. And, because of a 2006 amendment to the federal rules of appellate procedure, lawyers are free to cite unpublished opinions issued after Jan. 1, 2007.

But without the force of precedent to require courts to rule similarly the next time around, these decisions create a sort of lawlessness, Judge Richard S. Arnold of the United States Court of Appeals for the Eighth Circuit wrote in 2000. “We may have decided this question the opposite way yesterday,” he wrote, “but this does not bind us today.”

Judges say that unpublished decisions are a sensible reaction to a crush of work.

“We simply do not have the time to shape and edit unpublished dispositions to make them safe as precedent,” Judge Alex Kozinski of the Ninth Circuitexplained in 2004. “In other words, we can make sure that a disposition reaches the correct result and adequately explains to the parties why they won or lost, but we don’t have the time to consider how the language of the disposition might be construed (or misconstrued) when applied to future cases.”

Erica J. Hashimoto, a law professor at the University of Georgia and a lawyer for the prisoner in the recent case, Plumley v. Austin, No. 14-271, said “requiring courts to author binding precedent in every case is simply unworkable.”

The Fourth Circuit, for instance, decided about 4,000 cases in a recent 12-month period, or 267 for each of its 15 active judges.

“Because published opinions create binding precedent for all other cases considered by that court, those opinions, unless crafted with the utmost care and precision, can have significant unintended consequences for all sorts of other cases,” Professor Hashimoto said. “Anticipating those consequences requires an incredible investment of time.”

Still, it is hardly clear that judges are making the right choices about which opinions to publish, Scott E. Gant wrote in 2006 in the Boston College Law Review.

“The premise that judges can and should make this determination at the moment a ruling is made, and without the benefit of input from others, is seriously flawed,” he wrote.

In a 1977 speech, Justice Stevens said the approach rested on “a false premise,” specifically “that an author is a reliable judge of the quality and importance of his own work product.”

David R. Cleveland, a law professor at Valparaiso University in Indiana who has written extensively on unpublished opinions, said that Justice Thomas’s recent criticism was characteristic of the Supreme Court’s fitful attention to the issue.

“Individual justices have expressed dissatisfaction with the system and individual instances of it,” Professor Cleveland said, “and they should be commended for spotting the problem and speaking out against its harm to appellate justice.”

In a 2009 article in the Marquette Law Review, he calculated that litigants had asked the Supreme Court to consider the “constitutionality or propriety” of designating an opinion as unpublished in at least 36 petitions seeking review. But the court has never ruled on the issue.

“Rather than occasionally expressing disapproval of an individual symptom of the problem,” Professor Cleveland said, “the court should consider addressing the underlying illness.”


Court and Constitution: The Argument Against Judicial Supremacy

Monday, February 2nd, 2015

The GOP often concedes too much to the courts–a notion of judicial supremacy at odds with the best of the Republican Party’s history.

By David Corbin and Matt Parks

FEBRUARY 2, 2015

To their credit, a number of prospective GOP presidential candidates have been thinking critically and speaking publicly about the role of the judiciary in our constitutional system.

Three weeks ago, Rand Paul argued, before a skeptical Heritage Foundation audience, that “judicial activism” wasn’t the threat conservatives, for two generations, have thought it to be. A week and a half ago, Mike Huckabee suggested that a Supreme Court decision purporting to make gay marriage national would do no such thing until the states approved enabling legislation. Both drew heavy criticism for their remarks–some of it, at least, merited.

Republicans, nevertheless, would do well to rethink their general orientation toward the judiciary, which for too long has combined a general lament over its political activism with a general acquiescence in the results of that activism, dressed in the respectable garb of concern for the rule of law.

This is well-illustrated by the responses of several leading GOP candidates to questions regarding federal court action on gay marriage.

Jeb Bush recently released a statement affirming his belief in traditional marriage while calling for respect for the Court’s decision, whatever it may be. Marco Rubio did the same, in more expansive terms: “I wouldn’t agree with their ruling, but that would be the law of the land that we would have to follow until it’s somehow reversed — either by a future Supreme Court, or a U.S. constitutional amendment, which I don’t think is realistic or foreseeable.” Scott Walker too made a similar point after a federal court ruled against Wisconsin’s traditional marriage law last year: “The federal courts have ruled that this decision by this court of appeals decision is the law of the land and we will be upholding it.”

The underlying premise in both Walker and Rubio’s statements is that the courts, in determining a particular case, settles “the law of the land” until and unless the decision is reversed by the Supreme Court or the people. This, however, concedes too much to the courts–a notion of judicial supremacy at odds with republican principles and the best of the Republican Party’s history.

As we’ve noted in a previous essay, Abraham Lincoln, in responding to the Supreme Court’s Dred Scott decision, distinguished the results of the case (i.e. the resolution of the dispute between Scott and Sanford) with the reasoning that informed it (a misreading of the 5th Amendment and the history of American citizenship). While the former could not be gainsaid without endangering the rule of law, the latter did not immediately or automatically bind other office holders, especially in the case where there was good reason to believe politics or ideology, rather than a careful reading of the constitutional text, had guided the Court’s argument.

The underlying premise in both Walker and Rubio’s statements is that the courts, in determining a particular case, settles “the law of the land” until and unless the decision is reversed by the Supreme Court or the people.

Lincoln’s position, however novel it may appear to most today, was thoroughly grounded in the principles of the founding and the specific understanding of the role of the judiciary found in The Federalist (and largely relied upon by Chief Justice Marshall in his Marbury v. Madison decision). The principle stressed by Alexander Hamilton in Federalist 78 is not the special right of the Court to determine the meaning of the Constitution, but the duty of the Court to set aside unconstitutional laws as a means of protecting the Constitution and demonstrating its own submission to the text.

The obvious objection to Lincoln’s position is that it seems to leave the meaning of the Constitution uncertain. The obvious objection to judicial supremacy is that it does what mere judicial review does not: asserts the “superiority of the judiciary to the legislative [and executive] power,” borrowing Hamilton’s language in Federalist 78.

But Lincoln’s position is not that the Constitution is perpetually indeterminate, but rather that no one Court decision settles its meaning. While a constitutional question is open, it is reasonable for all who take an oath to uphold the Constitution to act upon their best judgment of its meaning in exercising the legitimate powers of their office, informed by good arguments wherever they arise.

Thus, although the Supreme Court had affirmed the constitutionality of a national bank in McCulloch v. Maryland (1819), Andrew Jackson vetoed a renewal of the charter for the same bank in 1832 on constitutional grounds (among others). And in recent times, Rand Paul’s father was known for many years as “Dr. No” for refusing to vote for any law he believed to be unconstitutional, despite the many Supreme Court rulings upholding the constitutionality of the programs and appropriations to which he objected. Whatever the merits of President Jackson and Representative Paul’s particular readings of the Constitution, they got an essential point correct: each officeholder is responsible for his own fidelity to the Constitution.

Alexander Hamilton recognizes the difficulty of resolving some constitutional questions at the beginning of Federalist 82–but he doesn’t say that it is the Court’s job to supply the answers. Echoing James Madison’s commentary in Federalist 37 on the challenge of instituting a federal republic that properly grants and divides power between the national government and the state governments, Hamilton writes: “Tis time only that can mature so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent whole.”

How will Americans make progress in reconciling the parts of the Constitution into a “harmonious and consistent whole”? Start with the “natural and obvious sense of its provisions,” Hamilton posits in Federalist 83. However much there is a need for specialized expertise in exercising legal judgment, the Constitution should be interpreted “apart from any technical rules,” in keeping with its nature as a publicly-ratified expression of the fundamental will of the people.

Where questions remain, Hamilton argues, one ought to turn to “commonsense” rules of construction like “a specification of particulars is an exclusion of generals,” which, for example “evidently excludes all pretension to a general [federal] legislative authority, because an affirmative grant of special powers [as in Article I, Section 8, of the Constitution] would be absurd, as well as useless, if a general authority was intended.”

This approach leads him to conclude that:

[T]he States will retain all PRE-EXISTING authorities which may not be exclusively delegated to the federal head; and that this exclusive delegation can only exist in one of three cases: where an exclusive authority is, in express terms, granted to the Union; or where a particular authority is granted to the Union, and the exercise of a like authority is prohibited to the States; or where an authority is granted to the Union, with which a similar authority in the States would be utterly incompatible.

Officeholders committed to following such a procedure in “liquidating” constitutional questions will not always agree, but they will be much less likely to use the Constitution as an ideological cudgel–and they will be much less likely to embrace a doctrine of judicial supremacy so amenable to the judiciary’s pretensions. Rightly understood, state and national courts would view themselves, Hamilton reasons, “as parts of one whole,” carrying out the common task “to unite and assimilate the principles of national justice and the rules of national decisions.”
As might have been expected given human nature, American political history has played out somewhat differently. Many judicial officers, no less ambitious than their executive and legislative counterparts, have acceded to an arrangement in which questions of judgment and policy are turned into constitutional matters. And though it should strike all of us as highly improbable that a 225 year-old government charter, written and ratified by a diverse people and understood according to its plain (historic) meaning guided by “commonsense” rules of construction, would always produce results consistent with the present concerns of libertarians, conservatives, liberals, or progressives, that’s exactly the partisan expectation, by hook or by crook, that’s ruled our day.

A would-be Republican president’s to-do list should be long. But even before we get to energy policy, entitlement reform, and the like, we need institutional reform, bending all three branches back toward their constitutional responsibilities and a healthy, robust politics with room for reasonable debate within the boundaries of our republican system.

That reform will not amount to a new era of conservative or libertarian activism if it means forcing the Constitution to settle our contemporary political debates–as, so often, Progressives have done. Neither will it entail encouraging states to nullify federal court rulings since such counsel undermines “the principles of national justice and the rules of national decisions.” More rightly it will involve advancing an understanding of court and Constitution in which important social questions are not permanently resolved by ideologically-driven Court rulings and officeholder and citizen alike are emboldened to reacquire their independent constitutional judgment.


CastlePost on Versailles Road is now in closer reach of mere mortals

Monday, February 2nd, 2015



January 31, 2015

Call: (859) 879-1000

VERSAILLES — A romantic getaway in an opulent castle might sound like an impractical pipe dream. But it’s actually easier than you’d think to treat yourself and your valentine like royalty, right here in Central Kentucky at CastlePost in Versailles.

The castle has long been a landmark on a drive down Versailles Road, occupying a commanding site in the midst of the equine and commercial landscape on the road out of Lexington. But the castle’s long and somewhat mysterious history has created perceptions that it’s closed or priced well beyond the means of most people.

In reality, CastlePost is a fully functional luxury inn with an upscale restaurant that is open to the public, and owner Tom Post is eager to get the word out about the offerings of the castle.

“We would love to see more couples stay here for anniversaries and weekend getaways,” says Post, a Lexington native and UK alumnus who divides his time between Kentucky and Miami, where he worked as a lawyer for much of his career.

Post purchased the property in 2003 after the death of its initial owner, Rex Martin Sr.

Martin began building the castle in 1969 after he was inspired by a trip to Europe. But the building was never finished and in 1975, Martin and his wife divorced and the property sat abandoned.

A history and architecture buff, Post began restoring the castle when he purchased it, but a fire in May 2004 caused serious damage. Undeterred, Post rebuilt the damaged sections and at long last, the castle was as splendorous on the inside as it was on the outside.

The CastlePost opened in 2008 and included 10 luxury staterooms, 6 self-contained luxury apartments located in the turrets, a grand ballroom, billiard room, music room, several bars and a library. The 55-acre grounds featured a pool, tennis courts, shuffleboard court, jacuzzi and landscaped garden. The rate for one night’s stay at the time — $325 to $1250 — was too pricey for many locals to consider as a nearby romantic retreat.

The cost has since been drastically reduced. With room rentals ranging from $195 to $420 plus tax, the CastlePost is suddenly an attractive “staycation” destination for locals or a quick weekend getaway. Room rates, which do not vary seasonally, include both English and continental breakfast options.

Each of the castle’s turrets are also available to rent from May through October. At $595 per night, each is a self-contained, two-story, fully furnished apartment suite with living room, kitchenette, flat screen tv, wrap around staircase, bedroom and jacuzzi tub.

Christa Pinker, CastlePost’s event coordinator, says the biggest success so far has come from special event rentals, particularly weddings, which can range from $5,000 to $20,000 and more, depending on the number of guests, overnight stays, menu, and other variables. She says that at first, people avoided booking the castle because they assumed it was out of their price range.

“It took a lot of talking and advertising and getting the word out,” says Pinker.

Special event rentals include the entire castle facility, including overnight rooms, which Pinker says is a unique selling point for not only wedding parties but corporate retreats as well.

You don’t have to be an overnight guest to enjoy CastlePost. Its restaurant is open Tuesday through Saturday, unless the facility is booked for a wedding, corporate retreat, or other event.

Pinker’s husband, Chris, is the executive chef, and he prepares a new menu each month. Each includes both a three-course or five-course dinner. The three-course option is $55 and the five course is $65. The restaurant is open to the public, but dinner guests must make reservations in advance. A sampling of Chef Pinker’s current menu includes dishes like South Carolina BBQ Chicken Napoleon, Goat Cheese Parfait and Slow Roasted Veal Grillades on jalapeño parmesan grits.

“We make as much of our food here as we can,” says Chef Pinker, who uses Kentucky Proud products as much as possible. If an item isn’t available by a Kentucky farmer, he uses organic products instead. He also cures his own meats and has seafood flown in fresh from Florida.

“None of our seafood is ever frozen,” says Christa Pinker. “It’s as fresh as we can possibly get it.”

CastlePost will be offering a special dinner on Valentine’s Day. For $100 per person, couples can celebrate with champagne and a five-course meal.

According to the Pinkers, more special dinners are in the works as well. CastlePost will begin to host a themed dinner one night per month in February.

“Our first themed dinner will feature wild game,” says Christa Pinker, who says that future themes might include international fare such as a French “Evening in Paris.”

With the new rates, it will now be easier to feel like you’re spending the night in the other Versailles.

Candace Chaney is a Lexington-based writer and critic.
Read more here:

United States: Supreme Court Applies “Clear Error” To Subsidiary Factual Findings In Federal Circuit’s De Novo Claim Construction

Monday, February 2nd, 2015


Last Updated: February 2 2015

Article by Joseph R. RobinsonRyan A. SchneiderRobert SchafferNicole R. Sullivan Ph.D.John A. Morrissett,Tinh Nguyen and Lindsay Mitchell Henner

Troutman Sanders LLP


Teva Pharm. USA, Inc. v. Sandoz, Inc., No. 13-854, 2015 U.S. LEXIS 628 (Sup. Ct. Jan. 20, 2015) (Breyer, J.) (Thomas, J., dissenting). Click Here for a copy of the opinion.

Teva sued Sandoz for infringing a patent that covers a method for manufacturing Copaxone, a drug for treating multiple sclerosis.  Sandoz argued that the patent is invalid because the claim language, specifying “a molecular weight of 5 to 9 kilodaltons” for the active ingredient, was indefinite under 35 U. S. C. §112 ¶2.  According to Sandoz, The patent did not state which of three different methods was used to calculate molecular weight.  The district court credited Teva’s expert, rejected the indefiniteness defense, and held that the patent is valid.  It concluded that “molecular weight” referred to the most prevalent molecule in the composition (and was neither an average molecular weight nor a weighted average favoring heavier molecules).  On appeal, the Federal Circuit reviewed the district court’s claim construction de novoand reversed.  Teva petitioned for certiorari, which was granted.

In the context of interpreting a patent claim, the Supreme Court considered “what standard the Court of Appeals should use when it reviews a trial judge’s resolution of an underlying factual dispute.”  The Majority concluded that FRCP 52(a)(6) applies to any subsidiary factual findings by the lower court.  This requires “appellate courts to review all such subsidiary factual findings under the ‘clearly erroneous’ standard.”

More specifically:  “When the district court reviews only evidence intrinsic to the patent, the judge’s determination is solely a determination of law, and the court of appeals will review that construction de novo. However, where the district court needs to consult extrinsic evidence in order to understand, for example, the background science or the meaning of a term in the relevant art during the relevant time period, and where those subsidiary facts are in dispute, courts will need to make subsidiary factual findings about the extrinsic evidence.  The district judge, after deciding the factual dispute, will then interpret the patent claim in light of the facts as he has found them.  The ultimate construction of the claim is a legal conclusion that the appellate court can review de novo.  But to overturn the judge’s resolution of an underlying factual dispute, the appellate court must find that the judge, in respect to those factual findings, has made a clear error.”   The Court also instructed that “[a]n issue does not lose its factual character merely because its resolution is dispositive of the ultimate legal question.”

The Supreme Court rejected Sandoz’s argument that factual and legal questions are often difficult to separate, because “Courts of appeals have long found it possible to separate factual from legal matters.”  The Court also was not convinced that “‘clear error review would bring about less uniformity” since “[a]fter all, the Federal Circuit will continue to review de novo the district court’s ultimate interpretation of the patent claims.”  Contrary to the dissent, the Court found that claim interpretation is comparable to the construction of private written instruments such as contracts and deeds,  and is not akin to the interpretation of a statute.

Here, the district court evaluated factual evidence, embodied in expert testimony, to determine how a skilled artisan would use certain chromatogram data, plotted on a curve, to reflect molecular weights.  Based on that factual finding, the court made a legal conclusion that “molecular weight” was not indefinite claim language.  When the Federal Circuit reviewed this decision de novo, it rejected the expert ‘s explanation “without finding that the District Court’s contrary determination was ‘clearly erroneous.’ Thus, the Federal Circuit erred in failing to review this factual finding only for clear error.”

For these reasons, the Supreme Court vacated the judgment and remanded the appeal.

In his dissent, Justice Thomas concluded that the “evidentiary underpinnings” of claim construction are a legal matter and not a factual question.  He argued that “the nature of the legal instrument dictates [the Court's] treatment of subsidiary findings…”  By analogy, a patent resembles a statute, not a private contract, because patents are governmental dispositions and are regulatory in nature.  Since “the ultimate meaning of a patent claim, like the ultimate meaning of a statute, binds the public at large, it should not depend on the specific evidence presented in a particular infringement case.”   The meanings of technical terms in a statute involve only conclusions of law, and the same treatment for claim terms in a patent is warranted.   According to Justice Thomas, the Court has been unwilling to interpret sovereign dispositions in the same way it interprets analogous private conveyances.  Further, “the need for uniformity in claim construction” favors de novo review of subsidiary evidentiary determinations.  The dissent also was concerned that fewer claim construction decisions would be precedential, “thereby injecting uncertainty into the world of invention and innovation.”

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances

Jack Conway’s only opponent in the 2015 democratic primary for the office of Governor has withdrawn

Sunday, February 1st, 2015

Attorney General Jack Conway’s only Democratic opponent for the office of Governor,  , Geoffrey M. Young of Lexington withdrew from the Governor’s race as a Democratic candidate on Jan. 27, 2015 /  Source: Secretary of States office.

U.S. Supreme Court issued a ruling that provides significant protection to whistleblowers who bring potential improprieties within the federal government to light

Sunday, February 1st, 2015


Andrew J. Silver

Tycko & Zavareei LLP

Supreme Court Ruling Provides Significant Protection to Whistleblowers

posted on: Friday, January 30, 2015

In a 7-2 decision last week, the Supreme Court issued a ruling that provides significant protection to whistleblowers who bring potential improprieties within the federal government to light.  Although premised on mere statutory interpretation, the opinion in Department of Homeland Security v. MacLean, ___ S. Ct. ____, No. 13-893, 2015 WL 248560 (Jan. 21, 2015), can also be read as a signal that the nation’s high court believes that whistleblowers of all kinds–whether those who expose fraud on the government, or those reporting on wrongful action within the government–deserve significant legal protection when they bring wrongful actions to light.

In MacLean, the plaintiff, Robert MacLean, was a former federal air marshal who served on domestic flights following the September 11, 2001, attacks. In mid-2003, the Transportation Security Administration (“TSA”) received information about potential plots involving hijackers entering the United States via international flights and then boarding connecting flights in order to use airplanes to attack East Coast targets. Shortly after being briefed on the threat, MacLean and other air marshals were informed that the TSA was temporarily removing air marshals from overnight assignments from Las Vegas. MacLean anonymously informed MSNBC of the TSA’s decision and its relation to the new hijacking threat. Shortly after MSNBC reported the story, the TSA reversed its decision. The TSA did not immediately learn that MacLean was the source of the information, but it eventually did, and in 2006, it fired MacLean for disclosing sensitive security information without authorization.

MacLean challenged his firing to the Merit Systems Protection Board (“MSPB”) under the federal government’s Whistleblower Protection Act (5 U.S.C. § 2302(b)(8)(A)) (“WPA”), which shields federal employees from adverse employment actions in response to an employee’s disclosure of either “any violation of any law, rule, or regulation” or “gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety,” unless the disclosure is “specifically prohibited by law.” The MSPB found that the law authorizing the TSA’s regulations (49 U.S.C. § 114(r)), did, in fact, specifically prohibit the disclosure. In MacLean’s appeal of the MSPB’s decision, the Court of Appeals for the Federal Circuit reversed the MSPB’s decision, finding that the TSA statute did not prohibit anything and that it merely authorized the creation of regulations that could purport to prohibit disclosures. Therefore, because MacLean’s disclosure was prohibited only by a regulation, and not the TSA law itself, the Federal Circuit found that MacLean was protected by the WPA, because his disclosure was not “specifically prohibited by law.”

In the government’s appeal, the Supreme Court agreed with the Federal Circuit and also ruled in MacLean’s favor. Although the decision, authored by Chief Justice John Roberts, was premised on a dry interpretation of the WPA’s statutory language, the Court also made multiple statements supportive of whistleblowers and the purpose of the WPA. In finding that the phrase “specifically prohibited by law” did not extend to regulations created by agencies under authority of laws, the Court observed that “Congress passed the whistleblower statute precisely because it did not trust agencies to regulate whistleblowers within their ranks. Thus, it is unlikely that Congress meant to include rules and regulations within the word ‘law.’” In evaluating whether the TSA statute contained any specific prohibition, the Court found that the stature “affords substantial discretion to the TSA in deciding whether to prohibit any particular disclosure,” and, therefore, did not itself prohibit anything. In short, “It is the TSA’s regulations—not the statute—that prohibited MacLean’s disclosure. And . . . a regulation does not count as ‘law’ under the whistleblower statute.” Armed with the Supreme Court’s ruling, MacLean will now return to the MSPB to once again attempt to gain reinstatement into his former job.

Although MacLean only applied to federal employee whistleblowers reporting on misconduct within the federal government, the Supreme Court’s decision suggests potential friendliness to whistleblowers of all kinds, such as qui tam relators who, via the False Claims Act, expose fraud perpetrated on the federal government by private businesses and individuals. In addition to providing financial incentives to whistleblowers, the False Claims Act contains an anti-retaliation provision (31 U.S.C. § 3730(h)) that protects employees who blow the whistle on their employers from adverse employment actions. Employee whistleblowers that are “discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment” in response to actions taken under the False Claims Act are entitled to relief, including reinstatement, back pay, other damages or compensation, and reimbursement of attorneys’ fees and court costs. In many ways, this anti-retaliation provision is a parallel provision in the False Claims Act that provides similar employee protection to the WPA. And although the Supreme Court’s ruling in MacLean did not provide any additional specific protection to False Claims Act whistleblowers, it can certainly be read as an appreciation of the importance of and a desire to protect all whistleblowers, whether inside or outside the government.

© 2015 by Tycko & Zavareei LLP

Why Judges Tilt to the Right

Sunday, February 1st, 2015



WASHINGTON — LAWYERS on average are much more liberal than the general population, a new study has found. But judges are more conservative than the average lawyer, to say nothing of the graduates of top law schools.

What accounts for the gap? The answer, the study says, is that judicial selection processes are affected by politics.

Judges are, of course, almost without exception lawyers. If judges reflected the pool from which they were selected based on politically neutral grounds like technical skill and temperament, the bench might be expected to tilt left.

But something else is going on.

“Politics plays a really significant role in shaping our judicial system,” saidMaya Sen, a political scientist at Harvard’s Kennedy School of Government and one of the authors of the study. Since judges tend to be more conservative than lawyers, she said, it stands to reason that the officials who appoint judges and the voters who elect them are taking account of ideology. She said the phenomenon amounted to a politicization of the courts, driven largely by conservatives’ swimming against the political tide of the legal profession.

Eric A. Posner, a law professor at the University of Chicago, said the paper might have drawn the wrong conclusion from the right data. “The authors argue that a court is politicized if the judges deviate from the ideology of the underlying ideological distribution of attorneys,” he said. “Maybe.”

But an equally powerful case could be made, he said, for viewing courts as politicized if they failed to reflect the ideology of people generally. “On this view,” Professor Posner continued, “we should congratulate rather than condemn Republicans for bringing much-needed ideological balance to the judiciary.”

Either way, said Tracey George, a law professor and political scientist at Vanderbilt University, the study explored a distinctive feature of American justice. Foreign legal systems tend to be homogeneous, she said, with lawyers and judges closely aligned ideologically.

Liberal Lawyers, Conservative Judges

An analysis of candidate contributions and donors ranks lawyers, judges and politicians on an ideological spectrum.


“You would think there would be a better match” in the United States, she said. “Why would the attorneys facing the bench be so different from the people looking back at them in robes?”

The study is based on an analysis of the campaign contributions of American lawyers, a group that turns out to be exceptionally active in the financial side of elections.

Of the 975,000 lawyers listed in 2012 in the Martindale-Hubbell legal directory, 43 percent had made contributions to state or federal candidates — including state judicial candidates — since 1979. That is about 10 times the rate of the voting-age population.

By examining candidate contributions and donors, as well as the causes some donors supported, the study devised a statistical algorithm that placed various groups of contributors across an ideological spectrum.

Federal judges and many state judges are barred by ethics rules from making contributions, but a majority did write checks to political campaigns before they joined the bench. Indeed, future judges gave at an even higher rate than lawyers generally. About 67 percent of future federal trial judges made contributions. Future state Supreme Court justices gave at the same rate. And 80 percent of future federal appeals court judges wrote checks to politicians.

Those contribution rates still leave gaps in the data, of course, and it may be that those who made no contributions have different ideological profiles from those who did. And not all contributions are made for ideological reasons. Some may be favors to, say, college roommates. Others may be strategic, made in the hope of eliciting a benefit.

But the authors of the study, Professor Sen and Adam Bonica, a political scientist at Stanford, say that their data are consistent with other findings.

The new study considered how judges are selected, not how they rule. It is possible that the political leanings of judges before they took the bench tell us nothing about how they do their jobs. But earlier research on the federal courts has found correlations between the political parties of the presidents who appoint judges and how those judges rule.

“The role of ideology increases as cases move up the judicial ladder,” saidLee Epstein, a law professor and political scientist at Washington University in St. Louis. “That’s because the constraints on judicial discretion lessen as one moves up.” She and two co-authors — William M. Landes, an economist at the University of Chicago, and Judge Richard A. Posner of the federal appeals court in Chicago — documented the trend in a 2013 book, “The Behavior of Federal Judges.”

Comparing votes in the same set of cases heard at all three levels of the federal judiciary from 1995 to 2008, the book found that judges appointed to trial courts by Republican presidents were only slightly more likely to cast conservative votes than those appointed by Democrats. But the disparity grew to almost 2-to-1 on the appeals courts and to 2.5-to-1 on the Supreme Court.

Professor Posner, who is Judge Posner’s son, said the new study made a particular contribution in assessing the political inclinations of the American Bar. “It confirms,” he said, “what everybody always thought: that lawyers are to the left of other professions.”

Every subgroup of practicing lawyers examined by the study was more liberal than the general population. Public defenders and government lawyers generally were particularly liberal, as were women and the graduates of top law schools. But prosecutors and law firm partners were pretty liberal, too.

Law professors, too, are quite likely to lean left, a finding that matched those in earlier studies. Indeed, when Professor Posner and a colleague, Adam S. Chiltontried to assess whether the liberal tilt of the legal academy affected its scholarship, they had a hard time finding law professors at the top 14 law schools who had contributed more to Republican candidates than to Democratic ones.

Why are judges different? After all, they, too, are a subset of a generally liberal legal culture.

Professors Bonica and Sen said that conservatives had worked hard and effectively to ensure representation of their views on the courts. They have cultivated candidates for the bench, notably through the Federalist Society, the conservative legal group active on law school campuses.

But if the numbers of conservative candidates remains small, they wrote, it makes strategic sense to deploy candidates on the courts that matter most. The study’s authors call this “strategic politicization.”

“The most conservative courts (and thus the least representative of the overall distribution of lawyers) are the federal courts of appeals, followed by the state high courts, the federal trial courts and state trial courts,” the study found.

The study did not consider the United States Supreme Court, which is the subject of endless research. But no one seriously disputes that politics played a role in the selection of the current justices.

There may be reasons besides politics for the overrepresentation of conservatives on the courts, at least as compared with the pool of lawyers. Judges do tend to be older than the average lawyer, and older lawyers are more conservative than younger ones. Even so, the study found, judges are more conservative than other lawyers their age.

Adam Liptak is the Supreme Court correspondent for The New York Times.

A version of this news analysis appears in print on February 1, 2015, on page SR6 of the New York edition with the headline: Why Judges Tilt to the Right.


The politics of jurisprudence

Sunday, February 1st, 2015

Conservatives lead upper ranks of judiciary, and liberals fare better in lower ones, research says

February 1, 2015 | Editor’s Pick
By Christina Pazzanese, Harvard Staff Writer

While U.S. Supreme Court opinions are routinely examined through the political lens of the court’s nine justices, far less is known about the ideological makeup of the thousands of judges on the nation’s federal and state benches.

Unlike with politicians, whose views are easily known through public speeches and position papers, voting records, and party affiliations, studying the politics of judges is much more difficult. State and federal codes of judicial conduct prohibit judges from engaging in most political activities or in public discussions of issues or matters that may appear before the court, as a means of preserving an independent judiciary. That stricture limits the data for broad analysis.

Now, research from Maya Sen, an assistant professor of public policy with theAsh Center for Democratic Governance and Innovation at Harvard Kennedy School (HKS), and Adam Bonica, an assistant professor of political science at Stanford University, sheds some light on the opaque world of politics in the judiciary.

Through novel analysis using data from the Martindale-Hubbell (a comprehensive directory of nearly a million lawyers, judges, and law professors) and from Bonica’s Database on Ideology, Money in Politics, and Elections(which scores all individuals and organizations making campaign contributions to state and federal candidates between 1979 and 2012), Sen and Bonica contend in a new working paper that they’re able to measure the politics of judges and attorneys, quantifying what had been known only anecdotally, if at all.

Among the findings:

  • Attorneys as a group are “quite liberal” compared with the general U.S. population; judges, on the other hand, are more conservative than lawyers, despite being drawn exclusively from the existing attorney pool.
  • The median attorney’s politics most closely resemble those of New York Gov. Andrew Cuomo, a center-left Democrat, while the median judge on the U.S. Court of Appeals aligns with a center-right Republican like New Jersey Gov. Chris Christie.
  • In lower courts judges skew more liberal, but they trend increasingly conservative up the ranks of the judiciary to state supreme courts and the U.S. Court of Appeals.

“The higher or more politically important the court, the more conservative it is, especially when compared to the overall population of attorneys,” the paper concludes.