FedSoc Blog

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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.

Click here for more coverage on the Wall Street Journal Law Blog.

Charles Kupchan had an op-ed in The Washington Post on Sunday arguing that a rise in nationalism and the bad economy in Europe are leading to the European Union's extinction, or at least the multinational system becoming "a union in name only." Kupchan laments this fact and calls upon European leaders to "breathe life into a project that is perilously close to expiring." Ilya Somin, on the other hand, writes on Volokh Conspiracy that, while Kupchan may be correct about the impending fall of the E.U., it is not as certain as Kupchan suggests.

Federalist Society Lawyers Chapters have several events coming up in the next several weeks. On August 31st, the Indianapolis Lawyers Chapter will host Doug Bandow for a program entitled “McDonald v. City of Chicago: Resuscitating the Privileges or Immunities Clause?” On Tuesday, September 7th the Piedmont Triad Lawyers Chapter will host a North Carolina Judicial Candidate Debate in which candidates for the North Carolina Supreme Court and Court of Appeals will answer questions regarding judicial philosophy, the role of the courts, and current issues facing the North Carolina judicial system. Also on September 7th, the Miami Lawyers Chapter will host the Honorable Ricky Polston and the Honorable Raoul Cantero to discuss judicial decision-making in Graham v. Florida.

Immigrations and Customs Enforcement officials have announced that they will stop the deportations of thousands of detained immigrants, reports The New York Times. The new policy, officials say, would help ease backlogs in immigration courts and is part of a new strategy to prioritize detaining and deporting immigrants who are convicted of crimes or who pose a threat to U.S. national security.

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Opponents of same-sex marriage are targeting three judges on the state supreme court in Iowa in an election that is ordinarily low-key, reports The Washington Post. The attempt to unseat the judges comes in the aftermath of the Iowa Supreme Court's unanimous ruling last year legalizing same-sex unions and is intended to send a message to the judges on the court about the popular will of the state on the issue.

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Tony Mauro reports in The National Law Journal that Wal-Mart has petitioned the U.S. Supreme Court to overturn the class certification of over 1 million female workers in a class action suit against the corporation for sex discrimination against women in pay and promotions. This petition follows a ruling by the U.S. Court of Appeals for the 9th Circuit in April that the certification of the current and former workers was appropriate and would prevent plaintiffs from flooding the federal courts with individual suits. Wal-Mart claims in its petition that the class certification of more than a million people violates due process and the federal rules of civil procedure.

Click here to read more on the Dukes v. Wal-Mart case by Stephen J. Newman in the December 2009 issue of the Federalist Society's newsletter Class Action Watch. At the time of the article, the case was still pending a ruling in the 9th Circuit.

Peter Lattman has an article in The New York Times today discussing the effect of the U.S. Supreme Court's June ruling in three honest services fraud cases on current fraud prosecutions. In the honest services rulings, the Court narrowed the scope of the 1988 "honest services" fraud statute by holding that, to be convicted under the law, prosecutors must prove that the defendant received kickbacks or bribes. In response to the cases, reports Lattman, many U.S. attorneys are dropping such honest services prosecutions because of the changed state of the law.

Click here to listen to the post-decision SCOTUScast on the honest services cases by John Shu.

According to Nelson D. Schwartz and Eric Dash in The New York Times today, the Dodd-Frank financial reform bill, which was signed into law last month and whose purpose was to stop banks insured by the federal government from speculating with their own money, will allow these banks to make such bets on behalf of clients. Trades made on behalf of the client have accounted for some losses in the past few months which, the Times reports, have added to the financial crisis, but the Dodd-Frank bill's Volcker Rule, which bans proprietary trading, does not reach these transactions.

Click here to read more about the Senate version of the financial reform bill in a paper by John Shu for the Federalist Society's New Federal Initiatives Project.

Today, in response to Judge Royce Lamberth's decision Monday in the U.S. District Court for the District of Columbia enjoining the NIH from spending money to support embryonic stem cell research (click here for the original FedSoc Blog post), The New York Times published this editorial criticizing the decision for not giving deference to the executive branch's interpretation of the Dickey-Wicker Amendment and for the effects it will have on stem cell research. Russell Korobkin analyzed the decision in a post on Volokh Conspiracy, calling the ruling "shocking" and arguing that Judge Lamberth's interpretation of the Amendment to prohibit the embryonic stem cell research funded by the NIH is contrary to the language of the statute.

Meanwhile, The Washington Post had an article yesterday concluding that Judge Lamberth's judicial career has been both independent and controversial. The Wall Street Journal also has coverage of the case in which it talks about what may happen as a result of the ruling.

Click here to read Judge Lamberth's decision.

In an article to be published today, Deputy Defense Secretary William J. Lynn III discusses the Pentagon's cyberstrategy and reveals a major breach of U.S. cybersecurity in 2008, when someone placed a flash drive in a U.S. military laptop in the Middle East and caused a malicious code to upload itself onto a U.S. Central Command network, reports The Washington Post. The declassification of this information is aimed at increasing awareness among Congress and the public of threats to U.S. cybersecurity.

Click here for more on U.S. cybersecurity in a paper by Adam R. Pearlman for the Federalist Society's New Federal Initiatives Project.

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