FedSoc Blog

Rajaratnam Acquittal Shows Indirect Insider Trading Case Challenge

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by Publius
Posted July 11, 2014, 10:11 AM

According to Reuters:

The acquittal on Tuesday of the younger brother of convicted hedge fund titan Raj Rajaratnam suggests prosecutors will have a tougher time pursuing people accused of trading on inside information they received indirectly.

Roughly a third of the insider trader defendants charged by Manhattan U.S. Attorney Preet Bharara since 2009 are alleged so-called "remote tippees". According to prosecutors, in such cases the defendant, or "tippee," never directly talks to the insider, instead getting information from an intermediary.

After the case of former Galleon Group fund manager Rengan Rajaratnam, prosecutors may reevaluate how they build similar cases, said James Cox, a law professor at Duke University.

Prosecutors said Rengan Rajaratnam, a fund manager at his brother's Galleon, engaged in insider trading, receiving tips from Raj Rajaratnam who was speaking to insiders on two deals.

But jurors and the judge acquitted the younger brother, ending an 81 conviction streak by Bharara's office that included Raj Rajaratnam's own guilty verdict in 2011.

"This case probably just didn't have enough of the i's dotted and t's crossed to make the connections," Cox said.

Of the 88 people charged over insider trading by Bharara since 2009, 31 were at least one step removed from the initial tipper, including at least three of the office's six outstanding cases, according to Reuters' analysis.

BURDEN OF PROOF

The burden of proof required to convict remote tippees has gained attention recently thanks to an appeal in a separate case involving Todd Newman, a former Diamondback Capital Management portfolio manager, and Anthony Chiasson, co-founder of Level Global Investors, who were convicted in 2012 of insider trading despite not being in contact with the insiders.

On appeal, they argued to the 2nd U.S. Circuit Court of Appeals in April that U.S. District Judge Richard Sullivan should have required that jurors find the defendants knew the insider benefited from disclosing information.

No decision has been issued. . . .

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New Post-Decision SCOTUScast: Scialabba v. Cuellar de Osorio

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by SCOTUScaster
Posted July 10, 2014, 1:40 PM

On June 9, 2014, the Supreme Court issued its decision in Scialabba v. Cuellar de Osorio (formerly Mayorkas v. Cuellar de Osorio). This case involved two questions: (1) Whether Section 1153(h)(3) of the Immigration and Nationality Act– which provides rules for determining whether particular aliens qualify as “children” so that they can obtain visas or adjustments of their immigration status as derivative beneficiaries of sponsored family member immigrants (also known as “primary beneficiaries”) – unambiguously grants relief to all aliens who qualify as “child” derivative beneficiaries at the time a visa petition is filed but age out of qualification by the time the visa becomes available to the primary beneficiary; and (2) whether the Board of Immigration Appeals (BIA) reasonably interpreted Section 1153(h)(3).

Although the District Court deferred to the BIA’s determination that only those petitions that can be seamlessly converted from one family preference category to another without the need for a new sponsor are entitled to conversion under §1153(h)(3), the en banc Ninth Circuit reversed, holding that the provision unambiguously entitled all aged-out derivative beneficiaries to automatic conversion and priority date retention.

By a fractured vote of 5-4, the Supreme Court reversed the Ninth Circuit. Justice Kagan announced the judgment of the Court and delivered an opinion joined by Justices Kennedy and Breyer, concluding that the BIA’s textually reasonable construction of §1153(h)(3)’s ambiguous language was entitled to deference. The Chief Justice, joined by Justice Scalia, agreed that the BIA’s interpretation was reasonable, but not because an agency has authority to resolve direct conflicts within a statute. The BIA’s reasonable interpretation of §1153(h)(3) was simply consistent with the ordinary meaning of the statutory terms, with the established meaning of automatic conversion in immigration law, and with the structure of the family-based immigration system. Justice Alito dissented. Justice Sotomayor dissented joined by Justice Breyer in full and Justice Thomas except as to footnote 3.

To discuss the case, we have Margaret Stock, who is an attorney with the Anchorage office of Cascadia Cross Border Law.

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U.S. District Judge Richard Kopf Under Fire for Blog Post Lambasting SCOTUS Hobby Lobby Decision

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by Publius
Posted July 10, 2014, 8:01 AM

The Los Angeles Times reports:

A federal judge turned part-time blogger who garnered unwanted national attention this week after using a profane expression to tell the Supreme Court to, effectively, "shut up" has decided to take his own advice and shut up for a while.

"Blogging will be light while I figure this out," U.S. District Judge Richard G. Kopf of Nebraska said this week after coming under fire from fellow jurists and legal experts for writing a blistering criticism of the high court's recent ruling in the Hobby Lobby case.

Kopf told readers Monday that he was prompted to curtail his Internet musings by a note from a lawyer he held in the highest respect who explained to him that people "expect judges not to be publicly profane, lewd or disrespectful."

The Hobby Lobby decision, which gave religious business owners the right to refuse to provide contraceptive coverage for female employees, had many critics. Kopf's July 5 blog post focused on how the court's five male, Catholic, Republican-appointed justices handed down a ruling that "looks stupid and smells worse. To most people, the decision looks stupid 'cause corporations are not persons, all the legal mumbo jumbo notwithstanding."

He ended with a bit of advice to the justices: "As the kids say, it is time for the Court to STFU," he said, providing a link to a definition of the four-word phrase.

Last year, Kopf, an appointee of President George H.W. Bush, took senior status with a reduced case load and started his own blog, "Hercules and the Umpire," with the aim of describing the job of a federal trial judge.

The Hobby Lobby posting was not the only one that raised eyebrows. He got into trouble earlier this year with an overly candid account of a day in court, describing "a very pretty female lawyer who … wears very short skirts and shows lots of her ample chest. I especially appreciate the last two attributes." He added that he has been "a dirty old man" for most of his life.

A few readers praised Kopf's candor for standing up to the Supreme Court, but others said he should resign or be impeached. . . .

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Richard Epstein on the Hobby Lobby Decision

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by Publius
Posted July 09, 2014, 8:44 AM

Richard Epstein comments at Defining ideas:

On June 30, a bitterly divided Supreme Court invoked the Religious Freedom Restoration Act (RFRA) to strike down the regulations of the Department of Health and Human Services (HHS) that imposed a contraceptive mandate on some employers covered by the Affordable Care Act. The ACA requires covered employers to supply “preventive care and screenings” to women “without any cost sharing requirements.” But it leaves its implementation to the HHS, which did not have to extend it to contraceptive devices or abortion procedures.

HHS took an aggressive stance about the scope of its powers. To be sure, under pressure, HHS exempted churches entirely from the mandate. For other religiously-oriented businesses and associations, including religious hospitals and universities, it only required that their healthcare insurer supply the needed coverage without charging back any of its costs to the protected institutions. But incorporated family-owned businesses like Hobby Lobby received no reprieve from the ACA to act in accordance with their Christian beliefs. In order to avoid paying, as it had always done, for four forms of contraception that could interfere with embryonic development after conception, Hobby Lobby faced this choice: either cancel all coverage or pay large fines. . . .

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Ninth Circuit Says to Give “Dreamers” Licenses

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by Publius
Posted July 07, 2014, 4:20 PM

The Arizona Daily Star reports:

Calling the state policy motivated by animosity, the 9th U.S. Circuit Court of Appeals this morning ordered that "dreamers'' who the federal government allow to work in this country also be issued Arizona driver's licenses, at least for the time being.

In a unanimous decision, the court rejected arguments by Gov. Jan Brewer that she was entitled to issue an executive order two years ago denying licenses to those in the federal government's Deferred Action for Childhood Arrivals program. The court ordered U.S. District Court Judge David Campbell, who had initially denied an injunction on behalf of the dreamers, to direct the state Department of Transportation to provide licenses to those who are in that program.

Today's ruling does not mean the dreamers will get to keep their licenses. That still needs to be determined after a full-blown trial.

But Judge Harry Pregerson, writing for the three-judge panel, said the evidence presented shows they are likely to ultimately succeed. And Linton Joaquin, attorney for the National Immigration Law Center, said he believes Monday's ruling could be just the impetus to convince Campbell to side with challengers to Brewer's policy.

"It totally helps,'' Joaquin said. "It basically sets the legal framework for the district court to follow resolving the case.'' . . .

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Google Starts Erasing Links for Searches in Europe

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by Publius
Posted July 07, 2014, 9:49 AM

The New York Times reports:

In May, a European court told Google it must assist people in cleaning up their online reputations by ruling that there is a “right to be forgotten.”

Google’s efforts to comply with that decision moved a step forward this week, as several British news organizations, including the BBC and The Guardian, announced that they had been notified that certain articles would no longer appear in search results because a complaint had been filed.

By Thursday, a frenzy had erupted over perceived censorship and compromising media freedom, while European regulators and the news outlets themselves complained that Google’s compliance with the European court ruling employed too broad a brush.

That deletions from Google’s search results could cause such a stir — after all, the articles continue to appear on the websites that published them, and can still be easily found if a searcher sidesteps the European versions of Google and uses the United States version, Google.com — speaks to the vast influence of this particular search engine. By some estimates, Google has about an 85 percent share of search traffic in Europe. In North America, that figure stands at less than 70 percent.

Whether purely coincidental or not — Google was not saying — the uproar on Thursday, involving some of the most popular European news sites, amounted to a publicity campaign highlighting the problems Google had warned the “right to be forgotten” order would cause.

“What I am seeing is a reverse P.R. game Google is playing — create a storm,” said Rishi Lakhani, an online marketing consultant in Britain. “And that is what is happening now. The media is saying, ‘Is this right?’ ”

About 70,000 requests for expunging information were submitted to Google from May 29 to June 30, according to a person with direct knowledge of the matter, who spoke on the condition of anonymity because he was not authorized to speak publicly. . . .

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Obama’s Disappointing Year at the Supreme Court?

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by Publius
Posted July 02, 2014, 6:22 PM

Damon Root comments for Reason:

The U.S. Supreme Court went out with a bang on Monday, ending its 2013-2014 term with Justice Samuel Alito's majority opinion in Burwell v. Hobby Lobby Stores, Inc., in which the Court held that the Patient Protection and Affordable Care Act violated federal law by placing a substantial burden on the exercise of religion when it required two "closely held" private corporations to cover certain forms of birth control in their employee health plans.

It was a painful legal defeat for the Obama administration—and it was not the only such defeat in recent days. In fact, in the past month alone, the White House has suffered a series of embarrassing losses at the Supreme Court, where it failed to prevail on issues ranging from the scope of the Fourth Amendment to the limits of executive power. To make matters worse, the president lost all but one of those cases by a vote of 9-0. Here's a quick recap of Obama's dismal finish this year at the Supreme Court.

Bond v. United States

Obama's troubles began on June 2 with the Supreme Court's unanimous ruling in Bond v. United States. At issue was the criminal prosecution of a woman named Carol Ann Bond, who was sentenced to six years in federal prison under the Chemical Weapons Implementation Act for smearing two toxic substances on the mailbox, door knob, and car door of a woman who had been carrying on an affair with Bond's husband. The victim suffered only a minor burn to her hand.

According to the Obama administration, however, federal prosecutors were fully justified in treating this soap opera-like crime as a chemical weapons attack thanks to the executive branch's broad power to make and enforce treaties with foreign governments, including the Chemical Weapons Convention.

But the Supreme Court practically laughed that view out of court. In the words of the Court's unanimous opinion, the White House's "boundless" interpretation of the chemical weapons law "would transform the statute from one whose core concerns are acts of war, assassination, and terrorism into a massive federal anti-poisoning regime that reaches the simplest of assaults." As the Court put it, "There is no reason to think the sovereign nations that ratified the [Chemical Weapons] Convention were interested in anything like Bond's common law assault."

Riley v. California

Three weeks later, on June 25, the Supreme Court once again ruled 9-0 against the Obama administration, this time rejecting the White House's sweeping view that the police should not be required to obtain a warrant before searching the cellphones of individuals they have placed under arrest. . . .

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New Post-Decision SCOTUScast: National Labor Relations Board v. Noel Canning

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by SCOTUScaster
Posted July 02, 2014, 10:32 AM

On June 26, 2014, the Supreme Court issued its decision in National Labor Relations Board v. Noel Canning. This case presented three questions arising from President Obama’s attempt to make three recess appointments to the National Labor Relations Board or NLRB. First, it asked whether the President can exercise the recess appointment power during a temporary recess that occurs while the Senate is still in session, or is instead limited to recesses between enumerated sessions. Second, the case asked whether the President may exercise the recess appointment power to fill any vacancy that exists during a recess--including vacancies that arose before the recess occurred--or whether that power is limited to vacancies that arise during the recess.  Finally, the case asked whether the Senate is in continuous recess if, though effectively out of town, it continues to convene every three days in brief pro forma sessions.

In a 9-0 decision, the Court found President Obama’s attempted recess appointments to the National Labor Relations Board invalid.  In his opinion for the Court, Justice Breyer ruled that the Recess Appointments Clause empowers the President to fill any existing vacancy during any recess, whether it be intra-session or intersession, of sufficient length. He also held that the phrase 'vacancies that may happen during the recess of the Senate,' applies both to vacancies that first arise during a recess and to vacancies that arise before a recess but continue to exist during the recess. Finally, he concluded that because the Senate was in session during its pro forma sessions, the recess during which the President made the appointments was only 3 days, and therefore too short to trigger the President’s recess appointment authority.  The appointments were therefore invalid. Justices Kennedy, Ginsburg, Sotomayor, and Kagan joined the opinion of the Court. Justice Scalia filed an opinion concurring in the judgment, which the Chief Justice and Justices Thomas and Alito joined. The opinion of the D.C. Circuit, which held that the recess appointments fell outside the scope of the Clause, was affirmed.

To discuss the case, we have Noel J. Francisco, Partner, Jones Day; Prof. Kristin E. Hickman, Harlan Albert Rogers Professor in Law; Associate Director, Corporate Institute, University of Minnesota Law School; and Prof. Michael B. Rappaport, Hugh and Hazel Darling Foundation Professor of Law, and Director, Center for the Study of Constitutional Originalism, University of San Diego School of Law.

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Obama Announces Executive Order Protecting Federal Employees from Gender-Identity Discrimination

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by Publius
Posted July 01, 2014, 11:00 AM

The Washington Post reports:

President Obama on Monday announced he would sign an executive order protecting federal employees from being discriminated against on the basis of gender identity. Discriminating against federal employees based on sexual orientation is already banned.

Obama made the announcement at a Pride Month Celebration in the East Room of the White House, where the president and his wife, Michelle, recognized gay Americans who have been influential in their lives. He recounted the steps he has taken to advance gay rights, including signing hate crimes legislation and working to end the “don’t ask, don’t tell” policy in the military.

The executive order is Obama’s latest use of his administrative powers in this area. Earlier this month, he announced he would prohibit federal contractors from discriminating on the basis of sexual orientation or gender identity.

He made the announcement after years of pressure by gay rights advocates. Obama had called for passage of federal legislation prohibiting discrimination based on sexual orientation or gender identity, but Congress has declined to pass it.

Still, Obama said, his administration has “gone further in protecting the rights of lesbian and gay and bisexual and transgender Americans than any administration in history.”

In his remarks, Obama highlighted the presence of his former professor at Occidental College, Lawrence Goldyn, who was openly gay when Obama was studying there in 1979, before he transferred to Columbia University.

“When I went in as a freshman .. I guess there were maybe a couple of other gay professors, but they weren’t wildly open about it.  Lawrence was not shy,” the president said. “And I took a class from him, and because he was one of the young professors, we became really good friends.  But also, he was the first openly gay person that I knew who was unapologetic, who stood his ground.  If somebody gave him guff, he’d give them guff right back, and was, I think, part of a generation that really fought so many battles that ultimately came into fruition later.  And he also played a huge role in advising lesbian, gay and transgender students at the school at a time when that was still hard for a lot of young college kids.  And he went on to become a doctor and ran an AIDS clinic, and now is the head of a health center.”

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Laurence Tribe: The Supreme Court Was Right to Allow Anti-Abortion Protests

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by Publius
Posted June 27, 2014, 8:23 AM

Professor Laurence Tribe comments in the New York Times:

Even as a committed supporter of a woman’s — increasingly imperiled — right to choose, I must acknowledge that the Supreme Court got it right on Thursday.

In McCullen v. Coakley, the Court unanimously struck down a Massachusetts law setting a 35-foot buffer zone around abortion clinics. While the buffer zone was enacted to ensure the safety of women seeking abortions, it also restricted the peaceful activities of the plaintiff, Eleanor McCullen, and other opponents of abortion, who sought to stand on the sidewalk and urge those women not to make what they see as a tremendous mistake.

That I don’t share Ms. McCullen’s views is beside the point. The great virtue of our First Amendment is that it protects speech we hate just as vigorously as it protects speech we support. On Thursday, all nine justices united to reaffirm our nation’s commitment to allowing diverse views in our public spaces — although their unanimous result belied their divided reasoning.

Cases like McCullen force us to balance competing constitutional values: free speech against the safety and autonomy of women. Here the balance tips unquestionably toward speech. A woman’s right to choose whether or not to terminate her pregnancy under Roe v. Wade guarantees her protection from the state. This protection does not include a right to be shielded by the state from fellow citizens hoping to peacefully convince her that she’s making the wrong choice. In his opinion for the court, Chief Justice John G. Roberts Jr. affirmed the value of these personal conversations: “If all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners’ message.”

In that opinion, the court ruled, 5 to 4, that the Massachusetts statute was neutral with respect to the content of the speech that it sought to regulate — but was still unconstitutional because it restricted more speech than necessary to achieve its aim.

The chief justice and those joining him were right that the restriction was needlessly broad. Although Massachusetts officials claimed they had unsuccessfully attempted to implement less restrictive alternatives, Chief Justice Roberts emphatically declined to accept that contention on faith, echoing his recent opinion in the cellphone privacy cases, in which he found that neither the state nor the federal government had offered “evidence to suggest that their concerns” about law enforcement’s need to conduct cellphone searches without a judicial warrant “are based on actual experience.” That demand for evidence was a marked improvement over the court’s willingness in other recent free-speech cases to defer to naked government assertions about national security needs. . . .

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Supreme Court Strikes Down Obama Recess Appointments

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by Publius
Posted June 26, 2014, 10:02 AM

Politico reports:

In a rebuke to President Barack Obama, the Supreme Court struck down three of his recess appointments to the National Labor Relations Board as unconstitutional.

The decision gives the Senate broad power to thwart future recess appointments, but did not go as far as some conservatives hoped to undercut the president’s ability to fill vacant executive branch posts and judicial slots.

The court ruled 9-0 that Obama’s appointments were unconstitutional because the Senate was not truly in recess when he made them during a three-day break in pro forma meetings of the Senate.

Four of the justices would have gone further, ruling that the president exceeded his authority because the vacancies did not arise during that break and because the president’s recess appointment power only occurs during breaks between usually year-long sessions of the Senate, but five justices would not accept those arguments.

The case before the court was brought by a Pepsi bottler in Washington state, Noel Canning, and addressed the constitutionality of Obama’s decision to bypass the Senate by making politically sensitive recess appointments of three individuals to the NLRB and another to head the new Consumer Financial Protection Bureau.

The appointments came during a period when the Senate claimed to be in session, even though it was on a 20-day break. The chamber was gaveled in briefly every three days, apparently in an attempt to stymie recess appointments, and a Senate resolution said no business was to be conducted.

The Supreme Court’s decision Monday does not upset any current appointments. Obama has not exercised his recess appointment power since he named the three individuals to the labor panel and Richard Cordray to head the newly-created Consumer Financial Protection Bureau in 2012.

But the ruling’s impact at the moment could be less sweeping than when the current legal fight was set in motion two years ago. That’s because last November, Senate Democrats exercised the so-called nuclear option — doing away with the Republican minority’s power to use the filibuster to block action on most nominees with fewer than 60 votes. . . .

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Unanimous Supreme Court: Police Need Warrants to Search Cellphone Data

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by Publius
Posted June 25, 2014, 3:21 PM

The Wall Street Journal reports:

The Supreme Court ruled Wednesday police must almost always obtain a warrant before searching mobile devices seized when arresting someone, extending constitutional privacy protections to the increasingly vast amounts of data Americans keep on smartphones, cellphones and other hand-held digital technology.

The court, in a unanimous ruling by Chief Justice John Roberts, said both the quantity and quality of information contained in modern hand-held devices is constitutionally protected from police intrusion without a warrant.

"Modern cellphones aren't a technological convenience," Chief Justice Roberts wrote. "With all they contain and all they may reveal, they hold for many Americans 'the privacies of life,' " he wrote.

The ruling rejected law-enforcement arguments that cellphones fell under a long-standing exception to the warrant requirement that allows police to search the contents of suspects' pockets to make sure they don't carry weapons or destroy evidence.

Chief Justice Roberts acknowledged the decision would impede some police investigations. His response: "Privacy comes at a cost."

"Our answer to the question of what police must do before searching a cellphone seized incident to an arrest is accordingly simple—get a warrant," the chief justice added.

The decision was one in a pair Wednesday where the high court, which can sometimes seem quaintly behind the times, forcefully stepped into the digital age with decisions applying age-old doctrines to a society rapidly being transformed by new technology. The second decision involved online video technology by Aereo Inc., which was challenged by traditional broadcasters arguing it violated their copyrights. In Aereo, the court effectively said the company couldn't use technology workarounds to escape copyright restrictions for a service that captured broadcasting signals, recorded them and distributed someone else's content over the Web.

Lower courts were split on the cellphone-warrant question, and the justices themselves have been grappling with the bounds of privacy in the digital age.

Privacy advocates hailed the ruling as a landmark, a bold signal that the court would protect constitutional privacy interests from the vast powers of modern technology. "By recognizing that the digital revolution has transformed our expectations of privacy, today's decision is itself revolutionary and will help to protect the privacy rights of all Americans," said Steven R. Shapiro, legal director of the American Civil Liberties Union.

Senate Judiciary Chairman Patrick Leahy (D., Vt.) called the decision "a wake-up call that we need to update our laws to keep pace with technological advances." . . .

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Ninth Circuit Rules Potential Gay Jurors May Not be Barred

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by Publius
Posted June 25, 2014, 9:35 AM

Pamela A. MacLean writes at Trial Insider blog:

The 9th Circuit let stand its January decision that potential jurors may not be blocked from selection simply because they are gay, in an antitrust case over HIV medication pricing.

The full court was asked to reconsider the opinion that constitutional equal protection  rights prohibit lawyers from using peremptory strikes to cut potential jurors based on sexual orientation.  In an order issued Tuesday, a majority of the 29 judges refused to grant en banc review of the opinion, with three dissenting votes.

In dissent, Judge Diarmuid O’Scannlain wrote, “The opinion’s unprecedented application of heightened scrutiny to a peremptory strike of a juror who was perceived to be gay bears significant implications for the same-sex marriage debate and for other laws that may give rise to distinctions based on sexual orientation.”  He was joined by Judges Jay Bybee and Carlos Bea.

He pointed out the 9th U.S. Circuit Court of Appeals is the first among the circuits to declare that equal protection requires the restriction since the U.S. Supreme Court ruled last year in the Windsor case giving a lesbian widow inheritance rights.

The order leaves the  U.S. Supreme as the last chance to change the ruling, if it is appealed.

The dispute began during jury selection in a 2011 antitrust trial in which Abbott Labs used a peremptory challenge to remove a juror who disclosed he had a male partner.

The opposing lawyer from Glaxo SmithKline Beecham objected, arguing it was impermissible to bar a potential juror based on sexual orientation.  The trial judge rejected the challenge.

Glaxo sued Abbott Labs claiming antitrust, contract violations and unfair trade practice in a licensing agreement and pricing of HIV medication, which raised considerable controversy in the gay community.

“Strikes exercised on the basis of sexual orientation continue this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation’s most cherished rites and rituals,” wrote Judge Stephen Reinhardt for the panel.

In an odd twist, the potential juror in the case said he worked for the 9th Circuit.  He said he was a computer technician in San Francisco and revealed during questioning that his “partner” studied economics and investments.  During follow-up questions, the prospective juror referred to his partner three times as “he” and said he had friends with HIV.  But the juror also said he had no knowledge of the medications, Norvir, Kaletra and Lexiva, which were subject of the antitrust trial.

Abbott’s attorney struck the juror and the Glaxo attorney immediately objected because it appeared to be based on the juror’s apparent homosexuality.

Existing case law already bars exclusion of jurors based on race, ethnicity or gender.  When a minority juror is struck the lawyer must explain the non-discriminatory basis for striking the juror.

At the end of a four-week trial, the jury returned a mixed verdict.  It favored Abbott on the antitrust claim and sided with Glaxo on the contract claims.  It awarded $3.4 million in damages to Glaxo.

Abbott appealed the contract verdict.  Glaxo also appealed seeking a new trial.

Judge Stephen Reinhardt applied the U.S. Supreme Court’s 2013 precedent in Windsor, which struck down the portion of the Defense of Marriage Act that discriminated in the tax treatment of a widowed lesbian.  He said Windsor “requires that heightened scrutiny be applied to equal protection claims involving sexual orientation.”

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Party Like It’s 1999 — the Denial of a Press Credential to SCOTUSblog

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by Publius
Posted June 24, 2014, 8:19 AM

Eugene Volokh comments at the Volokh Conspiracy:

The Standing Committee of Correspondents of the Senate Press Gallery — a reporters’ organization, not a government entity — has upheld the denial of a press credential to SCOTUSblog. Because the Supreme Court’s press credential decisions generally turn on whether an entity has gotten a credential from the Senate Press Gallery, this means SCOTUSblog won’t have a credential to cover the Court, either. This will make it harder for SCOTUSblog to cover the Court than it is for mainstream media organizations, though it won’t make such coverage impossible. (Tom Goldstein of SCOTUSblog has his own post about this.)

This, it seems to me, is more than just a mistake in this case — a denial of a credential to the most important and valuable source of news and analysis about the Supreme Court. Rather, the decision shows that the Press Gallery (whether because of the structure of its rules or because of its application of the rules) is missing one of the key advances brought about by Internet media technology.

By making it possible for anyone to communicate to the world at large, the Internet makes feasible (among other things) reporting and analysis by experts in the field — not just reporters who often lack the experts’ experience, education, or specialization, and not just by large mainstream media organizations that understandably lack a commitment to truly deep coverage of a particular issue.

If you’re interested in the latest decisions about computer crime law, you are no longer limited in reading what reporters who know little about computer crime law have to say about it; you can also come to this blog and read Orin Kerr, the leading American expert on computer crime law. If you’re interested in breaking news stories about appellate decisions, you can read appellate lawyer Howard Bashman’s posts on How Appealing. If you’re interested in linguistics stories in the news, you can read the linguistics professors at Language Log. If you’re interested in the Supreme Court, you can read the unparalleled resources put together by SCOTUSblog, which was founded by Tom Goldstein, one of the nation’s leading Supreme Court litigators.

And you can read these items without the filtering, oversimplification, and distortion that usually happen when nonexpert journalists write about technical issues — and that often happen even when the best, most knowledgeable nonexpert journalists write about such issues. Of course, you can still choose to read nonexpert journalists’ stories on the subject, precisely because you value the filtering and simplification that the nonexpert journalists provide; often, that’s what one wants, especially on subjects in which one has only modest interest. But sometimes, you want to go straight to someone who has decades of professional experience actually working on what he’s writing about.

Yet the Senate Press Gallery decision excludes a wide range of such expert writers. . . .

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Supreme Court Limits EPA Power to Regulate Greenhouse Gas Pollution

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by Publius
Posted June 23, 2014, 1:39 PM

McClatchy News Service reports:

A fractured Supreme Court on Monday limited but did not eradicate the Environmental Protection Agency’s power to regulate certain greenhouse gas emissions.

In a complex 5-4 decision, the court’s conservatives declared the EPA cannot require stationary polluters to get permits solely because they might emit greenhouse gases. But if a permit is needed because of other emissions, the court acknowledged, regulators can compel use of certain greenhouse gas control technologies.

“We think it beyond reasonable debate that requiring permits for sources based solely on their emissions of greenhouse gases...would be incompatible with the substance of Congress’ regulatory scheme,” Justice Antonin Scalia wrote for the majority.

At the same time, the court agreed that for polluters already regulated for non-greenhouse gas emissions, the EPA can require use of so-called best available control technology.

“Applying BACT to greenhouse gases is not so disastrously unworkable, and need not result in such a dramatic expansion of agency authority, as to convince us that EPA’s interpretation is unreasonable,” Scalia wrote.

Scalia further stressed that the ruling Monday would only restrain the EPA from regulating a small percentage of greenhouse-gas polluters. The ruling, moreover, does not affect other Obama administration proposals to control greenhouse gases under different Clean Air Act provisions.

More than half of the nation’s states took sides in the dispute over federal authority to regulate stationary greenhouse gas emissions. Conservative lawmakers such as Senate Minority Leader Mitch McConnell, R-Ky., faced off against Southern California air pollution managers.

The decision consolidated six lawsuits that challenged Environmental Protection Agency rules. The lawsuits boiled down to one central question: Did the EPA overstep its bounds in regulating stationary greenhouse gas emissions based on an earlier determination that it could regulate such emissions from motor vehicles?

The Supreme Court’s four dissenters said Monday the EPA acted reasonably.

“What sense does it make to read the Act as generally granting the EPA the authority to regulate greenhouse gas emissions and then to read it as denying that power with respect to the programs for large stationary sources at issue here?” Justice Stephen Breyer questioned in dissent.

In a 2007 case, a closely divided court held that the Clean Air Act gave the EPA authority to regulate greenhouse gases, which contribute to global climate change. A hotter planet, in turn, has been linked to worsening ozone pollution, more intense forest fires, increased drought and a host of human respiratory problems, among other things.

Targeting six greenhouse gases, including carbon dioxide and methane, the EPA set tailpipe emission standards for cars and light trucks.

The EPA further reasoned that since the six greenhouse gases were deemed dangerous enough to regulate as tailpipe emissions, they must also fall under the pre-construction permit requirements for stationary emission sources, such as small industrial plants and agricultural facilities. . . .

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