FedSoc Blog

The Blog of Legal Times reports that Justice Elena Kagan has indicated that she will recuse herself in a twelfth case set to come before the Supreme Court, Bruesewitz v. Wyeth, after having announced during the confirmation process that she would recuse herself in eleven pending cases. The reason for the recusal appears to be that she signed a brief filed by the Solicitor General's office in a related case on vaccine liability called American Home Products v. Ferrari. On the other hand, Chief Justice Roberts, who had recused himself in earlier stages of Bruesewitz, may once again be participating in the case.

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Eugene Volokh has a post on Volokh Conspiracy this morning noting a contracts decision in the 7th Circuit Court of Appeals in which Judges Eastebrook, Posner, and Wood debated the way in which foreign law is interpreted in U.S. courts. Judges Easterbrook and Posner argue that courts should rely on English-language translations and treatises to determine what the foreign law actually is, whereas Judge Wood contends that such a method could lead to mistakes in interpretation and thus that judges can allow the parties to use experts to offer potentially competing interpretations of foreign law.

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The Florida Supreme Court ruled Tuesday that a state ballot initiative purporting to give residents the right not to buy health insurance, in light of the federal individual mandate passed in March, is "misleading" and contains "ambiguous language," and that it therefore cannot be placed on the ballot for the next election, reports International Business Times. Missouri has already voted for such a measure, and Arizona, Oklahoma, and Colorado will still vote in November on state constitutional amendments attempting to block the federal mandate provision from taking effect.

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As the U.S. Department of Justice continues to investigate Sheriff Joe Arpaio's office in Maricopa County, Arizona, the Blog of Legal Times reports that DOJ has filed suit against the sheriff's office for obstructing its investigation. DOJ alleges that Sheriff Arpaio, a vocal opponent of illegal immigration who has garnered a national reputation in the wake of Arizona's passage of its controversial immigration law, has not fully responded to its requests for information in violation of federal law.

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Stationary cameras in the courtroom of the Canadian Supreme Court are "unobtrusive" and do not attract the attention of the practitioners or the judges, said Canadian Chief Justice Beverley McLachlin last week at the judicial conference of the 10th Circuit Court of Appeals in a discussion with Justice Ruth Bader Ginsburg, former 10th Circuit chief judge Robert Henry, and Nina Totenberg from NPR. The chief justice opined that nearly everyone has refrained from putting on a performance for the cameras since they were installed in the court in the 1980s and that media outlets have been "very very very responsible" in broadcasting what was occurring in the court, reports The Blog of Legal Times.

Justice Ginsburg, for her part, stated that the U.S. Supreme Court Justices should defer to any colleagues on the Court who, like former Justice David Souter, have strong feelings against bringing cameras into the courtroom.

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David G. Savage reports that the Supreme Court will be considering this fall whether to take a case involving the President's power to remove dissenters from his audience at public speeches. The case comes from the 10th Circuit, where the Court of Appeals ruled that President Bush's staff was not restricted by the First Amendment from removing attendees at a 2005 town hall meeting in Denver where the President was set to speak because one of the attendees had placed a bumper sticker on her car that read "No More Blood for Oil." The Justices are due to vote on whether to hear the case in late September.

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The Wall Street Journal Law Blog reports that the American Civil Liberties Union and John Walker Lindh, who is currently serving a twenty-year sentence in an Indiana federal penitentiary after being convicted for assisting the Taliban in Afghanistan, have filed suit to overturn the penitentiary's policy to allow Lindh and other Muslims to pray as a group only once a week, which they say violates their religious beliefs. Lindh and the ACLU allege that such a restriction on group prayer, and requiring Lindh to pray in his cell, violates his right to freedom of religious expression under the First Amendment.

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On June 17, the Supreme Court announced its decision in New Process Steel v. National Labor Relations Board. The Court held that two members of the National Labor Relation Board cannot exercise the board’s authority. To discuss the case in this post-decision edition of SCOTUScast, we have John N. Raudabaugh, who is counsel at Nixon Peabody LLP.

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Following a Dallas judge's decision that two gay men who were married in Massachusetts had the right to divorce in Texas because the Texas constitutional prohibition of same-sex marriage violated the federal Equal Protection Clause, the District Court of Appeals in Dallas reversed, holding that the case was outside the judge's jurisdiction and ordering him to dismiss, reports The Dallas Morning News. The Texas Attorney General, Greg Abbott, had intervened in the case, arguing that Texas courts could not dissolve a gay marriage because Texas did not recognize a right to such a marriage.

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On June 24, the Supreme Court announced its decision in Granite Rock Co. v. Teamsters. The Court held that 1) the parties' dispute over the CBA's ratification date was a matter for the district court to resolve, not an arbitrator; and 2) the 9th Circuit rightly declined to recognize a new federal common law cause of action under the LMRA for the Teamsters' alleged tortious interference with the CBA. In the post-decision edition of SCOTUScast, Matthew R. Estabrook discusses the case.

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The Los Angeles Times reports that close to one-eighth of federal judgeships are currently vacant in the United States. Congressional Democrats and officials in the Obama Administration are blaming Senate Republicans for the delay, alleging that Republicans have been opposing judicial nominees to prevent President Obama from influencing the philosophy of the judiciary on a wide scale, while Republicans argue that the delay in replacing judges stems from payback for Democrat opposition to Bush nominees and from the President's failure to nominate judges in a timely manner.

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The American Civil Liberties Union and the Center for Constitutional Rights filed suit in U.S. District Court in Washington Monday challenging the constitutionality of the federal government practice of targeting and killing U.S. citizens who are suspected terrorists outside war zones, reports The Washington Post. The groups are suing in response to the CIA placing Anwar al-Aulaqi, a U.S. citizen and cleric hiding in Yemen, on a list of suspected terrorists it has authority to kill. They argue that the Constitution, except in very specific and extreme circumstances, requires the U.S. to give suspected terrorists a trial and due process.

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On June 17, the Supreme Court announced its decision in Schwab v. Reilly. The Court held that the bankruptcy estate's trustee was not required to object to the debtor's exemptions in order to preserve the estate’s right to retain any value in the exempted items beyond the value listed for the exempted items. To discuss the case, we have Florida International University College of Law Professor Scott F. Norberg.

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Today, a judge in Virginia state court ruled that Virginia Attorney General Ken Cuccinelli had provided insufficient reason to subpoena the records of Michael Mann, a professor who is now at Penn State University and who has studied global warming at the University of Virginia and other institutions, to investigate whether Mann committed fraud with regard to state grant money, reports the Blog of Legal Times. While Judge Paul Peatross Jr. stated that the Attorney General's office has the authority to investigate the handling of such money, he determined that the office had not shown it had "reason to believe" Mann had committed fraud.

Attorney General Cuccinelli has responded that his office will provide a new subpoena request to the judge that conforms to the ruling and that the office will decide whether or not to appeal certain portions of the decision.

In The AmLaw Daily on Friday, Steven Harper, former partner at Kirkland & Ellis and adjunct professor at Northwestern University, argues that, despite the unpopularity of the billable hour model among clients, associates, and partners in the legal community, it will persist in part due to the decision of the U.S. Supreme Court in Perdue v. Kenny A. In that case, the Court upheld determining the legal fees awarded to winning plaintiffs under a certain federal statute on the basis of hourly billing. The Court decided that the billable hour had not yet become out of the ordinary, but Harper argues that the Supreme Court's decision in the case helps ensure that practitioners, in order to avoid the risk of not being paid, will continue to adhere to this method of determining pay.

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