SCOTUS Arguments Can Become “Must-See Television”

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CaptureThe United States Supreme Court prohibits cameras during its oral arguments, although each argument is audio-recorded. But, as Last Week Tonight host John Oliver points out, audio recording makes television coverage of those arguments “basically unwatchable” because television must present its coverage of the arguments by using artist renderings of the proceedings with audio clips.

Yet, as Oliver also points out, what happens at the United States Supreme Court is important and the public should pay attention. Oliver has a solution: the real dogs, fake paws Supreme Court. (Warning: some language is Not Safe For Work (NSFW).) Read more »

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Justice Ginsburg on Empowering Oral Argument

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Category: Judges & Judicial Process, Legal History, Legal Practice, Public, U.S. Supreme Court
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Justice GinsburgAn interview with Justice Ginsburg appears in the October issue of Elle magazine.  In the article, Justice Ginsburg describes her first oral argument before the United States Supreme Court.  Any advocate could relate to her story:

I had, I think, 12 minutes, or something like that, of argument.  I was very nervous.  In those days, the court sat from 10 to 12, and 1 to 3.  It was an afternoon argument.  I didn’t dare eat lunch.  There were many butterflies in my stomach.  I had a very well-prepared opening sentence I had memorized.  Looking at them, I thought, I’m talking to the most important court in the land, and they have to listen to me and that’s my captive audience.

Justice Ginsburg argued on behalf of Sharon Frontiero in Frontiero v. Richardson.  In that case the Court held that the United States military could not differentiate on the basis of gender in how it provides benefits to service members’ families.

In the interview, Justice Ginsburg recounts that as she spoke before the Court during oral argument her confidence grew:

I felt a sense of empowerment because I knew so much more about the case, the issue, than they did.  So I relied on myself as kind of a teacher to get them to think about gender.

 

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Wisconsin to Allow Same-Sex Marriage

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Category: Civil Rights, Human Rights, Public, Seventh Circuit, U.S. Supreme Court, Western District of Wisconsin
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wedding cakeOn Monday, the United States Supreme Court quietly denied certiorari on cases from three federal courts of appeals (the 4th Circuit, the 7th Circuit, and the 10th Circuit) that found bans on same-sex marriage to be unconstitutional. The Court’s denial leaves those federal decisions standing, thus making same-sex marriage legal in five states: Indiana, Oklahoma, Utah, Virginia, and Wisconsin. The decision is also likely to mean that the other states covered by those federal appellate court districts—Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming—will also allow same-sex marriage. Or at least, they can’t ban it.

Most surprising to many SCOTUS observers was that the Court made no comment about its decision to deny certiorari. Read more »

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Third Circuit Rules on Use of GPS Technology

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Category: Federal Criminal Law & Process, Public
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This short post is not the promised second part of my intended series on what the Seventh Circuit did during your summer vacation. But, it may interest those of you who follow developments in the criminal law.   In a much-anticipated decision with parallels to United States v. Brown, 744 F.3d 474, 476 (7th Cir. 2014), the en banc Court of Appeals for the Third Circuit held today that pre-Jones warrantless use of GPS to collect data about a suspect did not require suppression of the GPS-evidence under the exclusionary rule.  The case is United States v. Katzin, No. 12-2548 (3d Cir. Oct. 1, 2014).

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Thoughts on Mwani v. Al Qaeda

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Category: Federal Law & Legal System, International Law & Diplomacy, Public
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A federal magistrate judge issued a noteworthy decision yesterday in Mwani v. Al Qaeda—a case filed several years ago by victims of the 1998 truck bombing of the U.S. Embassy in Nairobi, Kenya. Six Kenyan nationals alleged jurisdiction under the Alien Tort Statute (ATS) and asserted claims for wrongful death, assault, and battery. The court found Al Qaeda liable on two of the claims and awarded compensatory and punitive damages.

Two aspects of the decision seem significant. First, the court reaffirmed a prior holding that jurisdiction was appropriate even under the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum, which established that ATS jurisdiction is available only for claims that “touch and concern the territory of the United States” with “sufficient force” to displace the presumption against the extraterritorial application of U.S. law. The magistrate judge concluded that Mwani satisfied Kiobel because Al Qaeda carried out part of the planning within the United States and directed the attack against the U.S. Embassy and its employees. It’s fairly common for an ATS case not to survive Kiobel these days, but the conclusion here seems reasonable. Read more »

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7th Circuit Affirms District Court Ruling Invalidating Wisconsin’s Marriage Amendment

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Category: Civil Rights, Constitutional Interpretation, Constitutional Law, Public, Seventh Circuit, Western District of Wisconsin
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same sex hand holdingJudge Richard Posner minces no words. In an opinion dated September 4, Judge Posner wrote for a unanimous 7th Circuit panel, affirming the Wisconsin district court’s decision invalidating Wisconsin’s so-called marriage amendment. (I reviewed the district court decision here.) Wisconsin’s case—Wolf v. Walker—was heard with its equivalent from Indiana—Baskin v. Bogan—and both states saw their prohibitions on same-sex marriage crumble.

The court confines its analysis to equal protection, avoiding the Fourteenth Amendment substantive due process argument (marriage as a fundamental right) that both sides pressed. As an equal protection analysis, the court sets up the legal question as one that requires heightened scrutiny because, as the court determined, sexual orientation is an immutable characteristic rather than a choice (and, Judge Posner added, “[w]isely, neither Indiana nor Wisconsin argues otherwise” (*9)).

Because heightened scrutiny applied, the state needed to provide an important state interest for treating same-sex couples differently when it came to marriage, and the discriminatory means chosen (denying same-sex couples the right to marry in Wisconsin and refusing to recognize same-sex marriages performed in states that sanction such unions) must be substantially related to achieving that important state interest. In true Posnerian style, Judge Posner discussed the equal protection analysis in terms of costs and benefits. (See **4-7.) That is, “in a same-sex marriage case the issue is not whether heterosexual marriage is a socially beneficial institution but whether the benefits to the state from discriminating against same-sex couples clearly outweigh the harms that this discrimination imposes” (*6).

The court found no important state interest to satisfy the heightened scrutiny analysis. As Judge Posner noted, “[T]he only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously” (*7). In fact, the court found none of the arguments proffered by either state as rational, much less serving important state interests. “The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subject to heightened scrutiny . . .” (*8). Because the court found an equal protection violation (whether it used heightened scrutiny or rational basis analysis), the court avoided the due process argument. Read more »

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What the Seventh Circuit Did During Your Summer Vacation

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Category: Federal Criminal Law & Process, Federal Sentencing, Public, Seventh Circuit
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seventh-circuit51Part One: Supervised Release

It’s been an eventful summer at the United States Court of Appeals for the Seventh Circuit in Chicago. In addition to deciding high-profile cases involving same-sex marriage and the validity of Wisconsin’s “Act 10” legislation, the Court has issued noteworthy opinions addressing criminal sentencing procedure and the law of evidence.

Seemingly out of the blue, the Court has signaled a new willingness to take a closer look at the imposition of supervised release conditions in federal criminal cases. Prosecutors, defense attorneys, judges, and probation officers will all be required to “up their game” in response to this new scrutiny. Read more »

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US Supreme Court Review: Two Employee Benefit Cases (Dudenhoeffer and Hobby Lobby)

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Category: Business Regulation, Corporate Law, Health Care, Labor & Employment Law, Public, U.S. Supreme Court
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US Supreme Court logo(This is another post in our series, Looking Back at the U.S. Supreme Court’s 2013 Term.) This blog post is the third of three on labor and employment law cases by the United States Supreme Court in the last Term. This post focuses on two employee benefit law/ERISA cases: Fifth Third Bancorp v. Dudenhoeffer and Burwell v. Hobby Lobby Stores, Inc. First, a disclosure: Along with six other law professors, I co-wrote an Amicus Curiae brief in support of the Dudenhoeffer plaintiffs.

Dudenhoeffer involves so-called ERISA stock-drop litigation, which has been rampant in the federal courts for a couple of decades now. The basic formula of these cases is that, as part of the employer-sponsored retirement plan (whether an employee stock ownership plan (ESOP) or a participant-directed 401(k) plan), the employer offers its own stock as either the entire pension plan investment or part of the pension plan investment.   When the company goes south and its stock price falls, plan fiduciaries find themselves in a difficult position as far as whether to sell the stock or to hold on to it. This is especially so when the plan fiduciary has conflicting duties as an officer of the company and as a fiduciary of the plan. As a corporate officer, not only is the person supposed to act in the best interests of shareholders to maximize the value of the company, but securities law forbids them to trade stock based on non-public material information. As a fiduciary to the ESOP or 401(k) plan, ERISA gives that same person an obligation to act in the best interest and with the same care as a prudent fiduciary would when making decisions about that employee benefit plan. And in case you are wondering, ERISA Section 408(c)(3) gives employers the ability to assign the same person both officer and plan fiduciary roles or set up so-called “dual-role fiduciaries.” Read more »

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US Supreme Court Review: Two Labor Law Cases (Noel Canning and Harris v. Quinn)

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US Supreme Court OT2013 logo(This is another post in our series, Looking Back at the U.S. Supreme Court’s 2013 Term.) Last month I commenced a series of posts of the United States Supreme Court’s labor and employment law decisions last term by blogging on the Court’s decision in the First Amendment public employee free speech case of Lane v. Franks, No. 13-483 (June 19, 2014).  In two separate blog posts, I will comment on two labor law Court decisions (NLRB v. Noel Canning and Harris v. Quinn) and two employee benefit/ERISA decisions (Burwell v. Hobby Lobby Stores, Inc. and Fifth Third Bancorp v. Dudenhoeffer).  This post discusses the labor law cases.

To begin, National Labor Relations Board v. Noel Canning, 134 S. Ct. 2550 (June 26, 2014), is obviously much more than just an ordinary labor law case.  Yes, it concerns the validity of decisions made by the National Labor Relations Board (NLRB or Board) when it had a quorum based solely on presidential recess appointments from roughly January 2012 through August 2013.  More specifically, on January 4, 2012, President Obama, faced with the prospect of another two-member Board (see below why this is a problem), used his constitutional recess appointment powers to make three intra-recess appointments.  In an effort to prevent any intra-session appointments, the Republican-controlled House of Representatives refused to give its consent to the Democratic-controlled Senate to go into recess.  See U.S. Const. Art. II, sec. 5 (“[n]either House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days . . . .”).  In response, the Senate held very brief, pro forma sessions in which no business was conducted.

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Of Trump Cards and Lawyering

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Category: Criminal Law & Process, Legal Practice, Legal Profession, Pro Bono, Public, Seventh Circuit
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King of SpadesSome of the best and the worst of the legal profession can be seen through Socha v. Boughton, No. 12-1598, decided by the Seventh Circuit this past week. The substance of the case involved the court’s applying — for the first time — the doctrine of equitable tolling to excuse a late filing by a state prisoner in a habeas case. This required a conclusion that the district court had abused its discretion in concluding otherwise, including the catchy characterization that “[t]he mistake made by the district court and the state was to conceive of the equitable tolling inquiry as the search for a single trump card, rather than an evaluation of the entire hand that the petitioner was dealt” (slip op. at 19).

Yet it is the lawyering that I want especially to note. Read more »

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“With Friends Like These . . .”: New Critiques of Graham and Miller

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Category: Criminal Law & Process, Legal Scholarship, Public, U.S. Supreme Court
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The U.S. Supreme Court’s decisions in Graham v. Florida (2010) and Miller v. Alabama (2012) undoubtedly constitute the most important developments in Eighth Amendment law over the past decade. Graham banned life-without -parole (LWOP) sentences for juveniles convicted of nonhomicide offenses, while Miller prohibited mandatory LWOP for all juvenile offenders, even those convicted of murder. I have a lengthy analysis of the two decisions in this recently published article.

A special issue of the New Criminal Law Review now offers a pair of interesting critiques of Graham and Miller. Interestingly, both authors seem sympathetic to the bottom-line holdings of the two decisions, but they nonetheless disagree with central aspects of the Court’s reasoning (and, to some extent, also with one another). Both focus their criticisms on the Court’s use of scientific evidence regarding the differences between adolescent and adult brain functioning.

The more radical perspective comes from Mark Fondacaro, a psychologist who has emerged as a leading critic of retributive responses to crime and advocate for scientifically informed risk-management strategies.   Read more »

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Welcome to the Summer Youth Institute

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Category: Eastern District of Wisconsin, Legal Education, Legal Profession, Marquette Law School, Public
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Welcome to the students participating in the Summer Youth Institute at Marquette Law School. The Summer Youth Institute is a free program for Milwaukee students entering eighth through tenth grade, and the program is in its second year. Students learn about the American legal system, participate in a moot court, and meet judges, attorneys, and law students, as well as other people involved in the legal system. This year the students are touring the federal and state courthouses, Rockwell Automation, and Gonzalez Saggio & Harlan. Students also are paired with a mentor from the Eastern District of Wisconsin Bar Association and are eligible to participate next summer in a law-related internship. The Summer Youth Institute is hosted by Marquette Law School and the Eastern District of Wisconsin Bar Association, in collaboration with Just the Beginning Foundation, Kids, Courts, & Citizenship, and the Association of Corporate Counsel Wisconsin Chapter.

This morning after a warm welcome from Dean Joseph Kearney and Judge Nancy Joseph at breakfast, the students learned how to introduce themselves and shake hands. Students learn important concepts about the law at the SYI, but they also gain confidence in presenting an oral argument. They form bonds with their mentors, who teach them about legal work, but also take them to baseball games and teach them intangible skills they will need to succeed in their work and life. And, finally, they get to know their peers, who, like themselves, are the future of the legal profession and our society.

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