Is the Court We Have the Court We Want?

May 26, 2014

Nine justices sit on the U.S. Supreme Court. Eight—Justice Elena Kagan is the exception—were federal appellate court judges before they ascended, with four serving on the D.C. Circuit, two on the 2nd Circuit (Connecticut, New York, and Vermont), and one each on the 1st Circuit (the rest of New England) and the 3rd Circuit (Mid-Atlantic states). Only Justice Anthony Kennedy, who served on the 9th Circuit, does not come from one of the 13 original states. (Justice Stephen Breyer was born in San Francisco and graduated from Stanford, but went to Harvard for law school and has spent his professional life on the East Coast. Justice Clarence Thomas also spent time in Missouri early in his

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“Well, I’ll Just Say …”

May 21, 2014

“Well, I’ll just say …” is a phrase I hear from time to time. The conversation usually involves a client, and it’s probably someone with whom I have not had a long-standing relationship. And it comes along when I’ve identified a problem or issue that gets in the way of the desired outcome.

Now, I’ve been practicing law for 11,899 days. (With a calculator, I’m counting, and for those who are math-challenged, I’m five months away from 33 years.) I’ve been blessed with many clients who I’ve been representing for 70-90% of those days, and with them it’s “the truth, the whole truth, and nothing but,” plain and simple. I’ve also noticed, for most of those days, that by some

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Losing Respect

May 12, 2014

Tuesday is often Supreme Court day, and it is today, too. But I’m not writing, mostly.

I read The Polarized Court in the Sunday Times and decided, Sunday afternoon, that when someone else tells a story better than you can, you need to step aside. The writer, Adam Liptak, is a journalist/attorney with a Pulitzer Price on his shelf. He’s clearly knowledgeable, and my only quibble with Mr. Liptak’s piece is one I should not have:  he’s really very even-handed about the problem. And about my headline? I didn’t think I should borrow from the New York Times, and I think Mr. Liptak’s real message is the loss of respect for the Supreme Court that comes with political polarity.

 

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Town of Greece v. Galloway

May 6, 2014

In Town of Greece v. Galloway, No. 12-696, the U.S. Supreme Court upheld the use of prayers, explicitly religious and focused on one faith, during the ceremonial part of local governmental meetings. For complete and excellent coverage of the opinion and its import, go to the Amy Howe’s Tuesday round-up at SCOTUSblog. For a quick summary, Lyle Denniston’s survey piece, Opinion Analysis:  Prayers get a New Blessing, is the “go-to” on the page.

I read the opinions, mostly. For me, though, the issue is simple, and non-constitutional. (Frankly, some of the torturing of common sense in some constitutional analysis can make one’s head spin, although I do confess that I’m at the 35% point in Richard Posner’s

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Get Your Affairs In Order

May 4, 2014

From a client, wrapping up a relative’s estate, unsolicited (and used with permission):

A word of wisdom you can pass on to your clients:   Everybody needs a Will, and please keep Beneficiary information up to date and valid. These are simple responsibilities that save family members enormous amounts of time and anguish.

I cannot express these sentiments more clearly. Grief and healing we cannot avoid. But when people pass they can have their affairs in order or not, and if someone leaves behind a mess no one is better for it. (Yes, I make some money, but I’d much rather get paid on the front end to avoid the problems on the back end, even though the “pay

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Boring Post!

May 3, 2014

Net neutrality! Heard the words? Wondered about them? Or maybe you’re a master of this particular universe.

I first read about net neutrality a few years ago on Daily Kos, though I must tell it true:  I was clueless, and was nominally pro-net neutrality because it seemed like the position I should be adopting. (Now, please, don’t get all high and mighty “I don’t vote for the party, I vote for the person” on me. We all use identifiers to help align ourselves on many, many issues, for we simply don’t have the time or candlepower to actually learn about and master what confronts us, en toto!)

“Net neutrality is the idea that any network traffic—movies,

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Gotcha

May 1, 2014

We live in “gotcha” times! Two comments made by prominent Republicans—one a Senator, and the other a judge—prompted my focus, although in any other week—or with several others during this week—the “gotcha” moments could have featured others.

Senator Mitch McConnell from Kentucky, the Senate Minority Leader whose party may take back the Senate this fall, while he finds himself involuntarily retired, said “that is not my job,” when asked what he would do bring jobs to a struggling county in Kentucky. Outrage, of course, ensued, with the editor who ran the story asserting that “he said that, and I swear those were his words,” and Senator McConnell offering a load of pablum about everyone’s responsibility for jobs, economic development, blah,

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A Funny Thing Happened On the Way to Arbitration

April 22, 2014

The U.S. Supreme Court loves arbitration. Less than a year ago it decided American Express v. Italian Colors Restaurant. There, Italian Colors Restaurant filed a class action suit against American Express on behalf of merchants who accept the American Express card, despite an arbitration clause in the merchant agreement. The Supreme Court gave effect the arbitration clause, and further held that a class action cannot be handled through arbitration. These holdings left merchants with no effective remedy, as no single claim could be brought against American Express because costs would far exceed the amount in dispute.

So it appeared likely that large corporations would use the American Express decision to advance protecting their interests by mandating arbitration in their

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Update on the Rabbi, the Airline, and the Supreme Court

April 22, 2014

The Supreme Court ruled 9-0 in favor of Northwest and against Rabbi S. Binyomin Ginsberg. The decision relies on pre-emption analysis associated with the Airline Deregulation Act. The opinion is moderately dense. Some analysis can be found at The Rabbi, the Airline, and the Supreme Court (my piece) and for deeper analysis read Ronald Mann’s piece, Opinion analysis: Justices hold “good faith and fair dealing” claim about frequent-flyer program preempted, at SCOTUSblog. Oh, and avoid any unpleasantness with an airline frequent flyer program, especially now, for you can be “excised” from the program.

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Southern Judges/Righteous Gentiles

April 13, 2014

Righteous among the Nations is an honorific of the State of Israel, used to recognize non-Jews whose extraordinary acts during the Holocaust saved Jewish lives. I thought about the Righteous among the Nations, known informally—and with respect—as Righteous Gentiles, as I was reflecting on the coverage of the Civil Rights Act of 1964 at 50.

President Lyndon Baines Johnson signed the bill into law on July 2, 1964. I’m not sure about the reasons for celebrating the 50 year anniversary now, about three months early, but there was a major event at the LBJ Presidential Library this past week to commemorate the law and the events that led to its passage. Presidents Obama, G.W. Bush, Clinton, and Carter all

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