Court Accepts Four New Cases

kedar@dailywrit.com (Kedar Bhatia) — Fri, 09 Jan 2009 21:10:11 GMT

The Court today accepted four new cases including a potentially landmark voting rights case. The cases will almost certainly be heard in April and you can see the orders list here. The court put each of the cases on a expedited brief schedule in order to fit the cases on to the April session from [...]

Ricci v. DeStephano (docket)
Ricci v. DeStephano (docket)
-United States Court of Appeals for the Second Circuit-
Can localities refuse to certify the results of an examination as a result of racially imbalanced results and fear of Title VII violation?

Horne v. Flores (docket)
Speaker of the Arizona House v. Flores (docket)
-United States Court of Appeal for the Ninth Circuit-
Whether a district court followed the proper procedure in issuing, and reconsidering, a class action lawsuit against a school district for giving insufficient funding to programs designed to each english to non-native speakers.

Republic of Iraq v. Beaty (docket)
Republic of Iraq v. Robert Simon (docket)
-United States Court of Appeals for the District of Columbia-
Whether or note US Courts have jurisdiction over events transpiring in Iraq prior to the US occupation.

Northwest Austin Municipal Utility District Number One v. Mukasey (docket)
-US District Court for the District of Columbia-
Whether or not localities must continue to get clearance from Congress to finalize districts and whether or not Congress’ 25 year extension in 2006 is justified.

BREAKING: U.S. Supreme Court Agrees to Consider New Haven Firefighters Case

dschwartz@pullcom.com (Daniel Schwartz) — Fri, 09 Jan 2009 20:39:53 GMT

The U.S. Supreme Court today agreed to consider the case of New Haven, Connecticut firefighers who alleged reverse discrimination when the city denied them promotions despite high test scores, ostensibly out of fears that the test may have discriminated against minority applicants.

I've covered the case, Ricci v. DeStefano, previously here and here, and will post more about it in the upcoming days. But you may be wondering what the specific question is that the court will consider.

The court accepted the case to decide the following question:

Whether municipalities may decline to certify results of an exam that would make disproportionately more white applicants eligible for promotion than minority applicants, due to fears that certifying the results would lead to charges of racial discrimination.

The case challenges the very notion of an employer who, ostensibly, is trying to do the "right" thing by preventing a claim of race discrimination from occurring, but by doing so, impacts white employees. Workplace Prof blog recently discussed this conundrum that arises in this situation:

This case is a very important one, but a really difficult one, too, that goes to the heart of our notions of discrimination and the meaning of Title VII. Essentially, this brings up the usual debate about whether affirmative action is race discrimination, and if so, whether it should be illegal. But this case adds a wrinkle that brings the whole system of Title VII into doubt. Here, the City argues that it believed in good faith that the promotion process would violate Title VII by creating a disparate impact. The plaintiffs dispute that, saying that the City was motivated by politics and race, but they further argue that even if the City did in good faith believe that it was avoiding a disparate impact claim, that should be no defense to a disparate treatment claim.

So, is a decision not to create a disparate impact really race discrimination in disguise? I think the answer to that is complicated. Every decision not to use a particular criteria because it has an impact on a particular group is necessarily considering that group's status. So in one sense, yes, there is a consideration of status in there somewhere. On the other hand, does that mean that employers must continue to use criteria that they know have a disparate impact unless that use is challenged and a court validates some other criterion? That seems an odd result.

It's much too early to predict the outcome; we'll have to first read the tea leaves at oral argument. But regardless, I would expect a deeply divided decision by the Court. After all, this issue caused severe fractures in the Second Circuit when it was originally decided.

The firefighters' brief is due February 19, 2009 and the City's response is due March 18, 2009. A decision is expected before the end of the Court's term in June.

(H/T Workplace Prof, SCOTUSBlog)

Supreme Court Agrees to Review Voting Rights Case

Fri, 09 Jan 2009 19:32:48 GMT

The Supreme Court announced today it will hear arguments in Northwest Austin Municipal Utility District No. One v. Mukasey, a key test of the Voting Rights Act that instantly becomes one of the top cases of the current term. We...

Mitigation

Thu, 08 Jan 2009 17:06:23 GMT

Kim Smith reports, "'Mitigation specialist' has weighty court job: trying to spare a life," in the Monday Arizona Daily Star.When it comes to questions of life or death, even the most heinous of convicted killers is entitled to argue that...

Kim Smith reports, "'Mitigation specialist' has weighty court job: trying to spare a life," in the Monday Arizona Daily Star.

When it comes to questions of life or death, even the most heinous of convicted killers is entitled to argue that he or she should be spared execution.

Digging up information that will persuade judges and juries to favor life in prison over death row is the job of a new breed of legal worker, the "mitigation specialist."

Oddly enough, some of the most critical nuggets that could help spare a killer's life can be the most difficult to come by, said Cheryl Fisher, who spends months interviewing and re-interviewing murder suspects and their families, tracking down decades' worth of documents and re-creating the past.

A common misconception is that defendants and their families are eager to share their stories and will say anything to save their loved ones' lives, Fisher said.

If her clients open up to her, she said, it's only after she's visited them two or three times a week for months. It's also rare for family members to divulge their deepest, darkest secrets right away, Fisher said.

"I'm extremely tenacious though, and eventually I'm going to find a great historian in the family or someone who is willing to talk to me," Fisher said.

When you think about it, a family's unwillingness to talk makes sense, defense attorney Laura Udall said.

"They don't want to be responsible for creating someone who has committed such a deed," Udall said. "Sometimes they don't want to admit it, or sometimes they just might not have the insight to see what went wrong."

Unheard of a decade ago, mitigation specialists such as Fisher and Diane Salvestrini have come to play a crucial role in capital murder cases. When jurors convict someone of capital murder, they are asked to decide if there are aggravating circumstances that dictate whether the defendant deserves to die.

To counter those prosecution arguments, people such as Fisher and Salvestrini begin investigating capital-murder suspects within weeks of their arrests, looking for anything to convince juries that there were factors shaping the defendants' lives beyond the suspects' control.

The mitigation specialist continues investigating until a case goes to trial — usually 18 months or so after an arrest — talking to the defendant; the defendant's family, neighbors or teachers; or anyone else who might be able to provide some insight. The specialist also gathers medical, school, psychiatric or any other documents.

"I think a lot of lay people believe it's a bunch of hooey, but people are formed by the things in their background," Udall said. "Most people don't come out of the womb evil. They are created by those around them."

Many times they find their client's mother abused drugs and alcohol while pregnant with the suspect, Salvestrini said.

Abuse — whether it's alcohol, drug, physical, sexual or emotional — seems to be a constant theme in these cases, Fisher and Salvestrini said.

A documented history of mental illness or head injuries is another common factor, Fisher said. A damaged frontal lobe can mean difficulty in making executive decisions, and illicit drugs don't help, she said.

Defense attorney Dan Cooper said the work of a mitigation specialist is tedious but crucial.

In 2003, the U.S. Supreme Court examined a defense attorney's obligation to conduct a mitigation investigation in Wiggins v. Smith. This summary of the ruling is from Oyez.org:

In a 7-2 opinion delivered by Justice Sandra Day O'Connor, the Court held that the performance of Wiggins's attorneys at sentencing violated his Sixth Amendment right to effective assistance of counsel. The Court reasoned that Wiggins's counsel did not conduct a reasonable investigation because, among other things, standard practice in Maryland in 1989 included the preparation of a social history report, which his attorneys did not commission even though the necessary funds were available. The Court concluded that Wiggins's counsels' failures prejudiced his defense. "Had the jury been able to place [Wiggins's] excruciating life history on the mitigating side of the scale, there is a reasonable probability that at least one juror would have struck a different balance," wrote Justice O'Connor.

New Cases Likely to be Accepted for OT08 on Friday

kedar@dailywrit.com (Kedar Bhatia) — Thu, 08 Jan 2009 09:44:23 GMT

At conference on Friday, the Court is likely to accept a case a two and expedite the schedule to hear those cases during the April sitting. Because of the shortened time for preparation, the Court might opt to announce the accepted cases on Friday and release the remaining orders on Monday. Tom Goldstein and co. have [...]

Tom Goldstein and co. have posted an interesting collection in their frequent ‘petitions to watch’ series. Keep in mind that the Solicitor General recommended the Court grant cert. in Republic of Iraq v. Beaty, et al.. The case centers around the jurisdiction of US courts in Iraq before the US invasion in 2003.

The Kagan File

Thu, 08 Jan 2009 01:50:46 GMT

The praise coming from Harvard Law School colleagues of Elena Kagan, who was named this week to be the next solicitor general, is effusive -- and, it turns out, longstanding. In a folder in Box 571 of the Thurgood Marshall...

Rossi on Nondelegation

Wed, 07 Jan 2009 21:31:15 GMT

Available on SSRN is an article on the nondelegation doctrine by Jim Rossi (Florida State) from the Encyclopedia of the Supreme Court of the United States (David S. Tanenhaus, ed.; Detroit : Macmillan Reference USA, 2008; ISBN: 9780028661247). Bites from...

Should AG Back Erring Prosecutors?

Wed, 07 Jan 2009 16:08:41 GMT

That's the title of Rick Casey's latest Houston Chronicle column. LINK Five years ago I asked readers to feel sorry for Assistant Attorney General Gena Bunn. Now I'm asking you to feel sorry for Assistant Attorney General Catherine Hayes. It...

That's the title of Rick Casey's latest Houston Chronicle column. LINK

Five years ago I asked readers to feel sorry for Assistant Attorney General Gena Bunn.

Now I'm asking you to feel sorry for Assistant Attorney General Catherine Hayes.

It was Bunn's job, I wrote, to go "with a straight face" before the U.S. Supreme Court in the case of death row inmate Delma Banks "and argue that the state of Texas should be able to suborn perjury and hide evidence with impunity in its quest to get the death penalty."

She had to admit that prosecutors had stood silent while two key witnesses lied under oath during Banks' two-day trial in 1980 for the murder of a 16-year-old co-worker.

She argued that defense attorneys had waited too long to raise the issue, even though the delay was caused by the prosecutors' cover-up of the evidence.

The justices were not receptive.

"Wasn't it the obligation of the prosecution, having deceived the jury and the court, to come clean?" asked Justice Ruth Bader Ginsburg.

"So the prosecution can lie and conceal, and the defense still has the burden to discover the evidence?" challenged Justice Anthony M. Kennedy.

The arguments advanced by Bunn had worked at the prosecution-oriented U.S. 5th Circuit Court of Appeals, but Bunn found no sympathy at the Supreme Court. It took that body — including archconservatives Antonin Scalia and Clarence Thomas — just 10 weeks to issue a stinging slap to the state of Texas and to the 5th Circuit.

In the unanimous opinion, Ginsburg wrote that it was "appropriate for Banks to assume that his prosecutors would not stoop to improper litigation conduct to advance prospects for getting a conviction."

Casey notes that following the Supreme Court ruling in Banks v.Dretke, Federal District Judge David Folsom in Texarkana ordered that Banks be retried or freed. Casey continues:

Today, Assistant Attorney General Hayes will appear in New Orleans and, based on a technicality, ask the 5th Circuit Court of Appeals to overturn Folsom.

A major argument amounts to raising a technicality. The state argues that Banks' attorneys didn't give proper notice that they were using the coaching transcript in their case.

Having hidden the damning transcript for 16 years, prosecutors are saying defense attorneys aren't playing fair.

Both a federal magistrate and Judge Folsom ruled that proper notice was given when Banks' attorneys, without objection from the state, introduced the transcript at an earlier hearing and asked witnesses numerous questions about it.

Hayes may get a favorable reception in New Orleans. It's the same three-judge panel that didn't see any problems years ago. But then this already outrageously long legal process will go back to the high court.

There's a better course. Shouldn't Attorney General Greg Abbott, whose job presumably bears some relationship to the pursuit of justice, be chastising prosecutors for breaking the law rather than defending them?

The prosecutorial misconduct category index is here.

"Superstar" Elena Kagan Is Named SG

Wed, 07 Jan 2009 13:51:34 GMT

Early favorable reviews are coming in about President-elect Barack Obama's decision to nominate Harvard Law School Dean Elena Kagan to be the next solicitor general -- the first woman in the role."Absolutely superb -- I have unbounded admiration for her,"...

Cert. Petition Filed Asking Court to Rule on Juror Bible Use

kedar@dailywrit.com (Kedar Bhatia) — Wed, 07 Jan 2009 01:49:37 GMT

Howard Friedman reports on his blog, Religion Clause, that a cert. petition has been filed in Oliver v. Quarterman, a case revolving around whether or not a juror’s use of the bible constitutes grounds for a mistrial. Khristian Oliver claims that a juror member’s reading of the bible during a case represents an ‘external influence,’ [...]

Howard Friedman reports on his blog, Religion Clause, that a cert. petition has been filed in Oliver v. Quarterman, a case revolving around whether or not a juror’s use of the bible constitutes grounds for a mistrial.

Khristian Oliver claims that a juror member’s reading of the bible during a case represents an ‘external influence,’ preventing the juror from considering only the facts of the case and relevant statute. The Fifth Circuit held in August that, while improper, the use of a bible is not per se grounds for reconsideration. They argued that Oliver had not shown sufficient evidence to prove that the bible influenced the juror (or his or her peers) to make a decision they would not have made otherwise.

In October, the court denied cert. in a similar case arrising from the Texas Court Of Criminal Appeals (opinion of the TCCA here). That case, Lucero v. Texas, centered around a jury foreman who read aloud passages from the bible after he found out that two jurors were unwilling to impose the death penalty. The passages, Romans 13:1-6, had the desired effect and the two jurors changed voted to recommend the death penalty. As usual, the Supreme Court denied cert. without issuing any statement.

SCOTUS Review Sought in Public Accounting Board Case

Tue, 06 Jan 2009 18:37:13 GMT

The federal appeals court opinion that upheld the constitutionality of the Public Company Accounting Oversight Board was a disastrous decision that undermines the president’s ability to supervise federal officers, say Jones Day lawyers who want the Supreme Court to review...

Fashion Advice for Lawyers

Tue, 06 Jan 2009 16:13:56 GMT

According to the Daily Mail, and Marie Claire, the law firm of Freshfields Bruckhaus Deringer has been advising its female associates to "embrace their femininity" by wearing stilettos and skirts to work. This advice is apparently part of its efforts to help its staff "project a professional image in the workplace."
PriceWaterhouse anyone?
Twenty years after the United States found that this kind of gender stereotyping amounted to workplace discrimination, things clearly haven't changed very much. In Price Waterhouse v. Hopkins, United States Supreme Court found that the advice given the Anne Hopkins for how she might make partner, suggesting that she:

walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry

amounted to unlawful discrimination on the basis of her gender.
I wonder if Freshfields will add this bit of sage fashion advice as an appendix to the webpage where it touts the firm's committment to promoting equality and diversity.
Besides, why limit the advice only to the female associates? Surely male associates will also benefit from projecting a professional image through use of stilettos?

Five, Six, a Dozen? Just How Small Can a Jury Be?

lawblog@wsj.com. (Dan Slater) — Tue, 06 Jan 2009 16:11:00 GMT

On today’s WSJ opinion page, Northwestern Law’s Steven Calabresi and Arizona State Law’s Michael Saks are calling on the High Court to take up Deltoro v. Florida, a challenge to an earlier Supreme Court case holding that juries of fewer than 12 members are constitutional.

William Bolivar Deltoro was tried by a six-person jury and convicted in 2007 of sexually assaulting his daughter. He was sentenced to life in prison without the possibility of parole. In 47 other states and traditionally in common law, a trial for such a grave offense requires 12 jurors. Deltoro’s trial by six was constitutionally permissible, explain the authors, because, in 1970, the Supreme Court decided that when the Framers used the word “jury” in the Constitution they meant to specify no particular number of jurors. The court held that juries could be as small as six and perhaps even smaller.

This, say Saks and Calabresi, runs contrary to the original meaning of the Constitution, tradition, precedent and empirical evidence showing that juries smaller than 12 don’t perform as well partly because they have a reduced “capacity for cross-sectional representation.”

Eight years after the 1970 case, the authors notes, the Court held unconstitutional Georgia’s attempt to reduce the size of juries to five. There was no consensus on why this was so, but one opinion, by Justice Lewis Powell, was candid enough to say that they were drawing a line based on nothing but their own unexplained say-so.

Obama Names Top DoJ Appointees

Tue, 06 Jan 2009 15:59:41 GMT

Eric Lichtblau reports, "Obama Names 4 for Justice Jobs in Break From Bush Path," in today's New York Times. President-elect Barack Obama reached back to the Clinton administration again Monday to fill four top Justice Department posts with lawyers whose...

Eric Lichtblau reports, "Obama Names 4 for Justice Jobs in Break From Bush Path," in today's New York Times.

President-elect Barack Obama reached back to the Clinton administration again Monday to fill four top Justice Department posts with lawyers whose records signal a sharp break from the legal policies of the last eight years.

Mr. Obama said he would nominate David W. Ogden, a Washington lawyer in private practice, as deputy attorney general; Elena Kagan, dean of the Harvard Law School, as solicitor general; Thomas J. Perrelli, a Washington lawyer, as associate attorney general; and Dawn E. Johnsen, an Indiana University law professor, as head of the Office of Legal Counsel. All four held senior legal posts in the Clinton administration.

Many of Mr. Obama’s picks in other cabinet departments have taken on a decidedly centrist bent. But at the Justice Department, where controversial Bush administration policies like interrogation tactics and eavesdropping will come under review, the nomination of Eric H. Holder Jr. as attorney general last month and Monday’s selections of four top aides suggested a strong effort to stake out a new direction.

And:

A Harvard law professor who is an adviser to Mr. Obama on legal issues, Laurence H. Tribe, predicted in an interview that Ms. Johnsen, as head of the Office of Legal Counsel, and Ms. Kagan, as solicitor general, would be particularly forceful in challenging the broad claims to executive authority asserted by the Bush administration.

“I’ll be very surprised if they don’t freshly re-examine some of the positions the previous administration has taken,” said Mr. Tribe, who taught Ms. Kagan at Harvard.

While Ms. Kagan and Ms. Johnsen bring strong academic credentials to the Justice Department, Mr. Ogden and Mr. Perrelli are seen as experienced managers who know the intricacies and operations of a department with about 110,000 employees.

Mr. Ogden, a partner at Wilmer Cutler Pickering Hale & Dorr, would manage day-to-day operations. Unlike many of the lawyers to hold that post, he has not been a criminal prosecutor, but he was head of the civil division at the end of the Clinton administration and chief of staff to Attorney General Janet Reno.

Mr. Perrelli, managing partner of the Washington office of the firm of Jenner & Block, was also a top aide to Ms. Reno. His portfolio, if he is confirmed, would include oversight of civil litigation, antitrust matters, civil rights, taxes and environmental law.

"Obama Names Choices for Key DOJ Posts," is Joe Palazzolo's Legal Times report.

President-elect Barack Obama began stocking the new Justice Department Monday, announcing the nominations of four well-known players to key posts, including deputy attorney general, the department's No. 2 spot.

That nod went to Wilmer Cutler Pickering Hale and Dorr's David Ogden, a former head of the department's Civil Division under President Bill Clinton who has been overseeing the DOJ transition work for Obama. Ogden's nomination had been seen as preordained by Washington lawyers and insiders for weeks.

His deputy on the transition team, Thomas Perrelli, managing partner of Jenner & Block's Washington, D.C. office, was tapped for the Justice Department's No. 3 slot, associate attorney general. Like Ogden, Perrelli served in several positions in the Clinton Justice Department, leaving in 2001 as the head of the Civil Division's Federal Programs Branch.

The bigger surprises came in Obama's selection of Elena Kagan, dean of Harvard Law School, to serve as solicitor general, and Dawn Johnsen, a law professor at Indiana University School of Law, to head the Office of Legal Counsel, the high-profile arm of the Justice Department that provides legal advice to the president and all executive branch agencies.

And:

Kagan's nomination also drew broad praise.

"Absolutely superb -- I have unbounded admiration for her," says Harvard Law professor Laurence Tribe, who has known Kagan as one of his students as well as his dean. "She transformed an almost dysfunctional institution into the best law school in the world."

Kagan would be the first Senate-confirmed woman to serve as the government's chief advocate before the Supreme Court. She has also been mentioned as a potential nominee to the Supreme Court, and her role as solicitor general could burnish her appeal.

An academic who has also worked in the Clinton White House as well as at Williams & Connolly, Kagan was nominated in 1999 by Clinton to fill the vacancy on the U.S. Court of Appeals for the D.C. Circuit that was ultimately filled by John Roberts Jr., when George W. Bush became president. (Kagan's nomination expired in the waning days of the Clinton administration.)

As varied as Kagan's background is, it does not include actually arguing before the Supreme Court, as she will be called on to do in her new job. But none of those interviewed saw this as a serious deficit, given her other talents.

"She certainly has a lot of experience persuading some independent thinkers," says Patricia Millett, referring to the Harvard law faculty. "Many solicitors general have come to the position without that experience, and it wasn't held against them," adds Millett, an Akin Gump Strauss Hauer & Feld partner who served in the SG's office until September 2007.

"Obama reveals vision for DOJ with round of top appointments," is Marcia Coyle's web-only National Law Journal article.

President-elect Barack Obama's vision for new leadership at the Department of Justice is now emerging with his announcement of his intent to nominate four former Clinton administration legal officials, including Harvard Law School Dean Elena Kagan, to key department posts.

Obama will nominate Kagan as solicitor general of the United States, often referred to as the 10th justice because of the special relationship between that office and the U.S. Supreme Court. Kagan would become the first female solicitor general to be confirmed by the Senate. (Barbara Underwood, currently New York solicitor general, served as acting solicitor general of the United States for six months in 2001).

In addition to Kagan, Obama has named three lawyers on his transition team to top posts: David Ogden of Wilmer Cutler Pickering Hale & Dorr; Tom Perrelli of Jenner & Block; and Dawn Johnsen of Indiana University Maurer School of Law — Bloomington.

Kagan, dean of Harvard Law since 2003, has no experience arguing in the Supreme Court, but she is no stranger to that court, having served as a law clerk to Associate Justice Thurgood Marshall.

From 1995 to 1999, Kagan served in the White House, first as associate counsel to the president (1995-96) and then as deputy assistant to the president for domestic policy and deputy director of the Domestic Policy Council (1997-99). In those positions she played a key role in the executive branch's formulation, advocacy and implementation of law and policy in areas ranging from education to crime to public health. Kagan launched her scholarly career at the University of Chicago Law School, where she became an assistant professor in 1991 and a tenured professor of law in 1995.

Kagan received her bachelor's degree from Princeton University in 1981 (summa cum laude). She attended Worcester College, Oxford, as Princeton's Daniel M. Sachs Graduating Fellow, and received an M. Phil. in 1983. She then attended Harvard Law School, where she was supervising editor of the Harvard Law Review, and graduated magna cum laude in 1986.

In a Boston Globe article, Harvard Law professor and former Reagan solicitor general Charles Fried said her appointment would be a loss for the law school. Echoing comments made by other colleagues and students, he said, "The place is like it's never been before. She has managed to calm the factionalism, so it's completely disappeared. I think she knocked a few heads, but she worked by and large by persuasion."

Earlier coverage of the nominations is here.

Aditya

Tue, 06 Jan 2009 14:06:56 GMT

Another ridiculous judgment by the Supreme Court. In Reliance Infocomm Ltd v. BSNL, (2008) 10 SCC 535, the Court was called upon to decide whether “Unlimited Cordless” service is covered under the definition of WLL(M) service as defined in Regulation 2(xxviii) of the Telecommunication Interconnection Usage Charges Regulation, 2003 which defines WLL(M) as limited mobility service [...]

Another ridiculous judgment by the Supreme Court.

In Reliance Infocomm Ltd v. BSNL, (2008) 10 SCC 535, the Court was called upon to decide whether “Unlimited Cordless” service is covered under the definition of WLL(M) service as defined in Regulation 2(xxviii) of the Telecommunication Interconnection Usage Charges Regulation, 2003 which defines WLL(M) as limited mobility service using WLL technology within a Short Distance Charging Area (”SDCA”). I know it may be a little complicated to understand but please do bear with me.

What is interesting to note in this judgment is that in attempting to refer to qualified definitions of the terms used, the Court cited Wikipedia and other internet sources as authorities which till today was totally unheard of.

According to Wikipedia, Fixed Wireless Terminal (”FWT”) units differ from conventional mobile terminal units operating within cellular networks - such as GSM - as FWT or desk phone is limited to a permanent location. Therefore, all the above literature and reference books indicate that FWA is a service which is limited to permanent location. The significance of FWA is that it dispenses with the last mile wireline connectivity and to that extent it is cost effective. The wireless access point is a device that connects wireless communication devices together to form a wireless network. Wireless Access Point (”WAP”) usually connects to a wired network.(see: Wikipedia)

33. According to Whatis.com’s ‘Encyclopedia of Technology Terms’ the term ‘fixed wireless’ refers to the operation of wireless devices or systems in fixed locations such as home and offices. They derive their electrical power from the utility mains, unlike mobile wireless or portable wireless which are battery-powered. Although mobile and portable system can be used in fixed locations, their efficiency is compromised when compared with fixed systems. One of the important assets of fixed wireless that subscribers in remote areas can be brought into a network without the need for new cables or optical fibres across the country side.

This exposes a great fallacy in the working of the Court. The Court must place reliance only on those documents that are authoritative and conclusive in nature and not information that is susceptible to change. It should be known that sites like Wikipedia can be changed time and again by any user. After reading this judgment, I am seriously considering becoming an active contributor to Wikipedia. Who knows, I am be cited sometime.

As a confession, I am a big fan of Wikipedia, but think that the Court expressing itself in this manner is ridiculous.

October Term 2008: A Silent Term?

kedar@dailywrit.com (Kedar Bhatia) — Tue, 06 Jan 2009 07:47:06 GMT

Most terms of the Supreme Court go by without much publicity. The court usually hands down only one or two cases notable to make the front page of the times and another case or two worthy of the business section. In some terms, however, the Court accepts more than its usual load of high-profile cases [...]

In recent memory, a few terms stand out as ‘landmark’ terms. OT99 (October ‘99-July ‘00) was notable for being the term that marked the beginning of the end for the ‘Rehnquist Revolution.’ Conservatives had a victory in Boy Scouts of America v. Dale but the weakness of the conservatives was exposed in Stenberg v. Carhart, the landmark abortion case.

Above all others, however, OT06 stands out as the most revealing case in recent memory. It was the first full term of the Roberts Court and, notably, it was the first term in which cases accepted by the Justices on the court today. The conservatives on the Court felt stronger than ever and wasted no time taking cases they thought they could win.

The conservatives were right. In cases across the board, the liberal bloc of the court was thumped by the five conservatives. You can find a complete list of the cases from OT06 here, but the major conservative victories were in Hein v. Freedom from Religion Foundation (faith-based initiatives), FEC v. Wisconsin Right to Life (campaign finance), Morse v. Frederick (speech), and Gonzales v. Carhart (abortion).

As the justices’ private documents become public, I have little doubt that the term will only become more interesting. Justice Ginsburg faced narrow, but nonetheless devastating, loses in Ledbetter v. Goodyear and Gonzales v. Carhart. Justice Kennedy controlled nearly every major case before the court that year and had written, in my opinion, one of the most inflammatory Supreme Court opinions of all-time, Gonzales v. Carhart.

The next term, OT07, proved to be just as explosive. Landmark cases like Kennedy v. Louisiana (death penalty), Boumediene v. Bush (habeus), Medellin v. Texas (international law and executive power), and DC v. Heller (Gun rights) produced a much more balanced term than the one before it. Justices Stevens, Souter, Ginsburg, and Breyer won major victories in Kennedy and Boumediene while the Chief Justice and Justices Scalia, Thomas, and Alito won decisive victories in Medellin, Stoneridge Investments v. Scientific America, and, in particular, Heller.

OT08 is shaping up to be much less politically-charged. Plesant Grove v. Summum, a case about religious monuments on public property, represents the most high-profile case of the term and there isn’t another case that comes close. In December, the court agreed to review al-Marri v. Pucciarelli, a case that questions the detention without charge of a person labeled as an ‘enemy combatant.’ The court will likely hear that case in March.

The court will meet for conference this Friday, January 9, and will likely add a few cases to the argument calender for April.

Schwinn on Sunstein's "Is OSHA unconstitutional?"

Tue, 06 Jan 2009 01:36:39 GMT

At our sibling Constitutional Law Prof Blog, Steven D. Schwinn (John Marshall - Chicago) summarizes a new article by Cass Sunstein (Harvard) in the Virginia Law Review. OSHA's constitutional problem is one of nondelegation: It lacks an "intelligible principle" to...

The José Medellín Case: When Moral Law and International Law Collides

Mon, 05 Jan 2009 23:40:32 GMT

Should outsiders stepping foot on foreign land be shielded or granted immunity for any atrocious act or heinous crime committed while in that alien territory? Does crime beget crime? When a balancing of interests emerges in the practice of criminal law, can one law be truly more dominant than another to merit the promulgation of a court decision? These are but some of the issues that linger in the mind long after justice had been meted in connection with the controversial case of José Ernesto Medellín.

Even for a heinous crime offender as Medellin, certain quarters questioned, and continue to question, if indeed justice was served when he faced capital punishment. The very grave offense he exacted on two innocent, unsuspecting Houston girls had, on the other hand, instigated a national outrage that reverberates to this day. Medellin, it will be recalled, was lethally injected after the US Supreme Court held him liable for the heartless gang rape and murder of two teenaged girls in Texas. The case, which was hyped by mainstream U.S. and other international media and, one can imagine, even utilized to boost propaganda campaigns to serve elite interests, goes down American history as one of the most vicious crimes perpetuated by foreigners in American soil. Not that the case, per se, actually needed to be hyped. Neither executive clemency nor lawyer arguments that the Medellin case would serve as precedent to a nation’s non-adherence to the rule of law could quash the Supreme Court decision of liability for the Mexican-born offender.

The issues connected with the Medellin case appear far more complicated and far-reaching, considering that Medellin was the first to be executed from a list that included 50 other Mexican nationals facing death sentence who sought refuge in an international treaty provision. Article 36 of the Vienna Convention stipulates that arrested foreigners are vested with a cloak of immunity and the right to have some access to or contact with their consulates in their home country following arrest/detention.

Not since the Supreme Court ruling that declared abortion a constitutionally protected basic right of women has there been a greater uproar than the international commotion created by the Jose Medellin case. Protection of life or respect for the fundamental right to live was clearly the violation in the Medellin case, and the Court somehow appeared to do right in its verdict in the eyes of many. A clear difference in Roe v. Wade is that even as countless groups protested the legal opinion upholding abortion as a woman’s fundamental right, the assailants presented strong arguments, even if, upon closer analysis, it is also the protection of life that is being curtailed. In both Medellin and Roe v. Wade, it would appear, public outrage is very much understandable. For in the end, it is the American values that majority still hold dear that is sacrificed. Indeed, being exposed to the raw edges of human existence can greatly influence people’s thinking and mindset on what is or what is not morally permissible. The fact that Jose Medellin was merely 18 when he, his brother, and other gang members who were less than 18 years of age at the time their crime was perpetuated does not diminish the gravity of the act.

What many adopting the legal stance may have contemplated on is where exactly does moral law end and international law begin? Many other cases have shown these often collide. In the end, though, it may all boil down to being human, assuming of course, that one is of sane mind. After all, who would not be infuriated when a convicted felon faces his victims closest of kin with nary an earnest trace of remorse even as he offers an apology coupled with a pre-execution statement that expresses his hope that his execution brings closure to the aggrieved kin?

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Obama Selects Kagan to be Solicitor General

kedar@dailywrit.com (Kedar Bhatia) — Mon, 05 Jan 2009 20:59:24 GMT

Barack Obama has announced that he will appoint Harvard Law School Dean Elena Kagen to be his Solicitor General. The two taught together at the University of Chicago in the early 1990s, and before that she clerked for Abner Mikva on the DC Circuit and Thurgood Marshall on the Supreme Court. She clerked for Marshall during OT87 and to my knowledge the only major opinion authored by his chambers during that term was in Arkansas Best v. Commissioner>, a tax case.

Kagan doesn’t have any experience arguing before the Supreme Court. She joins an elite group that just in the last 20 years includes Supreme Court heavyweights like Charles Fried, Ken Starr, Seth P. Waxman, Theodore B. Olsen, and Paul Clement. If confirmed, Kagan will become the first female to serve as Solicitor General.

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Kagan to Be Solicitor General

Mon, 05 Jan 2009 18:30:56 GMT
Elena Kagan, currently Dean of Harvard Law School, has been chosen as the next Solicitor General. Talking Points Memo has this brief bio:Kagan, the Charles Hamilton Houston Professor of Law, is currently the 11th Dean of Harvard Law School. Kagan...
Elena Kagan, currently Dean of Harvard Law School, has been chosen as the next Solicitor General. Talking Points Memo has this brief bio:
Kagan, the Charles Hamilton Houston Professor of Law, is currently the 11th Dean of Harvard Law School. Kagan first came to Harvard Law School as a visiting professor in 1999 and became Professor of Law in 2001. She has taught administrative law, constitutional law, civil procedure, and seminars on issues involving the separation of powers. She was appointed Dean of the Law School in 2003. From 1995 to 1999, Kagan served in the White House, first as Associate Counsel to the President (1995-96) and then as Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council (1997-99). In those positions she played a key role in the executive branch's formulation, advocacy, and implementation of law and policy in areas ranging from education to crime to public health. Kagan launched her scholarly career at the University of Chicago Law School, where she became an assistant professor in 1991 and a tenured professor of law in 1995. Kagan clerked for Judge Abner Mikva of the U.S. Court of Appeals for the D.C. Circuit from 1986 to 1987. The next year she clerked for Justice Thurgood Marshall of the United States Supreme Court. She then worked as an associate in the Washington, D.C. law firm of Williams & Connolly from 1989 to 1991. Kagan received her bachelor's degree from Princeton in 1981 (summa cum laude). She attended Worcester College, Oxford, as Princeton's Daniel M. Sachs Graduating Fellow, and received an M. Phil. in 1983. She then attended Harvard Law School, where she was supervising editor of the Harvard Law Review, and graduated magna cum laude in 1986.

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