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Writing Matters … Mostly!

March 5, 2015

When I was a young man I recall some discussion—today it would be Internet buzz—about how writing didn’t matter anymore. We all talked to one another, and that made writing unnecessary.

Wrong! Writing matters greatly, almost always. Very recently, I got a decision in a case. My clients were right on both the facts and the law; however, the case was complicated. I filed a motion for summary judgment. It’s a request to the court, asking the court to accept the other side’s version of the facts and still rule in your side’s favor, on account of the law being on your side.

My clients prevailed. The right decision, although I was concerned until I got the ruling, as I’m

Chief Justice John Roberts, Justice Anthony Kennedy, Justice Antonin Scalia, Obamacare, U.S. Supreme Court

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Standing to Sue/The Supremacy Clause

February 16, 2015

Mark Rubin

In all lawsuits, plaintiffs must have standing to sue. In federal court there must be: (a) a controversy which falls within the ambit of cases the federal courts can hear; and (b) a plaintiff suffering from or having the potential to suffer a real and direct injury. Without these two conditions you can’t sue.

Further, standing is necessary when a suit gets filed and during the entire process. If the risk of a direct injury when you sued goes away—because, for example, your status changes or a law you are complaining about gets repealed—your suit cannot go forward.

So standing has become an issue in King v. Burwell, the case challenging Obamacare subsidies. Here’s Cristian Farias at New

Alabama, judges, King v. Burwell, Roy Moore, same sex marriage, standing

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Rehnquist and O’Connor – Arizona Justices

February 9, 2015

Mark Rubin

Last Friday I attended part of The Rehnquist Court: Ten Years Later, presented jointly by the William H. Rehnquist Center on the Constitutional Structures of Government and the James E. Rogers College of Law at the University of Arizona. I spent a very interesting morning learning about federalism—the relationship between state governments and the federal government—and the role of the Chief Justice of the United States. (No, nothing left out there; the office-holder—all 17, to date, men—is the Chief Justice of the country, not the Court.) I missed afternoon sessions on criminal justice and the First Amendment.

I mention my day because I don’t know how many people appreciate the value associated with having two justices—one the Chief

Chief Justice William Rehnquist, James E. Roger College of Law, Justice Sandra Day O'Connor, The Rehnquist Center, University of Arizona

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Inspiration

January 31, 2015

Mark Rubin

Inspiration. It comes to us from time to time, and often from the unlikeliest of places.

Every morning I have an Internet ritual. 1. Facebook. Checking in with my peeps, and with what they’re reading and doing. (Back here in a moment.) 2. MarkRubinWrites.org. Confession: From the login page I find out how many of you have read what I’ve written. 3. Tucson.com. I read the local newspaper, the Arizona Daily Star, for the obituaries. 4. NYT.com. First stop at the New York Times, after a review of front page headlines, is the obits. If you want to learn about interesting people, read the New York Times obituaries. And, sadly, it’s from today’s obituary of Craig Ramini that I

Always, Buffalo mozzarella, Craig Ramini, Forrest Church, Geela Rayzel Raphael, Mozzarella di bufala

Food, The Rest of Everything

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Obamacare News

January 29, 2015

Mark Rubin

Rich! Just really rich! That’s my reaction to House GOP Demands To Know What Obama Will Do If SCOTUS Guts Obamacare, posted at TalkingPointsMemo on January 28 and written by Sahil Kapur.

The issue is King v. Burwell, No. 14-114, the Supreme Court case to be argued on March 4. The plaintiffs claim subsidies cannot be provided to insureds in states without their own exchanges. Most of these states—which rely on the federal exchange—are red states, controlled by Republican governors and legislatures. (For more on the issues, read King v. Burwell: The Affordable Care Act and the Supreme Court Meet Again from MRW, posted in November 2014.)

Mr. Kapur focuses on a January 28 letter from five House

Obamacare, Patient Protection and Affordable Care Act, President Obama, Sahil Kapur

Law, The Rest of Everything

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Disparate Impact, and Unhappy People

January 26, 2015

Mark Rubin

Disparate treatment v. disparate impact is today’s subject. The concepts arise in discrimination laws passed mostly in the 1960s. The Society for Human Resource Management (SHRM) offers a detailed explanation here; in simple terms, disparate treatment involves intentional action directed at someone on account of their status—race, color, religion, gender, etc. Contrariwise, disparate impact results from seemingly neutral activities which adversely affect people on account of their status.

Increasingly, disparate treatment claims are being undermined in courts. On January 21 the U.S. Supreme Court heard oral argument in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., No. 13-1371. Amy Howe from SCOTUSblog provides an excellent review of the case, within the context of

disparate impact

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Keystone XL: What’s the Real Story?

January 10, 2015

Mark Rubin

The Keystone XL Pipeline will deliver shale oil from Canada to refineries in Illinois and Texas, and to a storage facility in Oklahoma. Will deliver is a misnomer, however, for a working pipeline from Alberta to Illinois and Port Arthur in Texas exists. Now.

So what’s all the fuss about, if the thing is already built? A bigger, more direct pipeline from Alberta to Steele City in Nebraska, apparently. (If you knew there was a working pipeline now, say so in the comments section. You’ll find no comment from me, by the way.)

I intended to focus on the January 9 decision by the Nebraska Supreme Court—and I’ll get to it—but learning about the existing pipeline makes it hard not

Congress, House of Representatives, Keystone XL Pipeline, Nebraska, Nebraska Supreme Court, President Obama

The Rest of Everything

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Cuba

December 18, 2014

Mark Rubin

Cuba! It’s certainly a touchy topic, but it’s no longer ignorable, or a topic which can wait. So, I’m all in here.

Formal relations with Cuba do not exist. The signal feature of the relationship, however, is the embargo on trade. The embargo had as its purpose forcing Fidel Castro and his Communist regime from power. It began on October 19, 1960, under President Dwight Eisenhower. It has lasted for more than 54 years, albeit with many exceptions. (Several MRW readers have been to Cuba in the recent past, traveling from Miami on cultural exchanges.) Ten successors to President Eisenhower—Kennedy, Johnson, Nixon, Ford, Carter, Reagan, Bush, Clinton, Bush, and Obama—have come and, excepting President Obama, gone. And the Castro brothers,

Barack Obama, Cuba, Dwight Eisenhower, embargo, Fidel Castro, John McCain, Rand Paul, Raul Castro, Ted Cruz

The Rest of Everything

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The Court as an Echo Chamber, Etc.

December 8, 2014

Mark Rubin

“I’m taking this case all the way to the Supreme Court,” are words heard occasionally in hot contested matters, most often where the chances of that happening are nil. The words do, though, provide a jumping off place for discussing an interesting new study.

Cases get heard by the U.S. Supreme after a grant of certiorari. The word translates roughly to “to be more fully informed” and, here, being more fully informed means having the Court grant the writ, so that it can illuminate us with its wisdom.

I’m not delving into process here very much. The Court does take a limited category of cases by direct appeal (as opposed to cert), and does have original jurisdiction in

arizona v. california, echo chamber, supreme court, timken

Law

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Kareem Abdul-Jabbar and Race

December 6, 2014

Mark Rubin

Kareem Abdul-Jabbar captured my attention recently. He’s the greatest basketball player, ever—yes, I’ll make the case, and I do welcome disagreements, really—but I noticed him because of his exceptional clarity about race in some recent writing.

About basketball. Kareem Adbul-Jabbar played college ball at UCLA as Lew Alcindor. As a professional he played for the Milwaukee Bucks and the Los Angeles Lakers.

When Lew Alcindor arrived at UCLA, freshman did not play varsity basketball. UCLA had won national championships in 1964 and 1965. On November 27, 1965 the UCLA freshman played the defending two-time national champion varsity team. The freshman, led by Mr. Alcindor, won by 15. During Mr. Alcindor’s three years on the varsity team UCLA lost only two

basketball, class, Kareem Abdul-Jabbar, race

The Rest of Everything

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