Law

Posted by D. Daniel Sokol The 2013 Mark T. Banner Award of the ABA Section of Intellectual Property Law has been awarded to Christina Bohannan (Iowa Law). Christina writes on IP and competition, among other topics. The Mark T. Banner...

Tessa L. Dysart (Regent University School of Law) has posted The Protected Innocence Initiative: Building Protective State Law Regimes for America’s Sex-Trafficked Children (Columbia Human Rights Law Review, Vol. 44, 2013) on SSRN. Here is the abstract: Under the federal...

The Times reported earlier today on the truly disgraceful decision of Senate Democrats on the House Judiciary Committee to capitulate to Republican homophobia by withdrawing an amendment by Senator Leahy that would have allowed, in the Times's language "United States citizens to apply for permanent resident status, known as a green card, on behalf of their same-sex partners." Senator Charles E. Schumer, Democrat of New York and an author of the measure, said that not including the provision amounted to “rank discrimination.” But he ultimately concluded, “As much as it pains me, I cannot support this amendment if it will bring down the bill.” Similarly, Senator Al Franken, Democrat of Minnesota, said: “This is the definition of a Hobson’s choice. In my bones, I believe in equality.” But [South Carolina Republican Sen. Lindsay Graham, up for re-election in 2014 and desperately afraid that he will be "primaried" by Ted Cruz and his friends] reflected the view of his Republican colleagues when he said: “You’ve got me on immigration. You don’t have me on marriage. If you want to keep me on immigration, let’s stay on immigration.” Ultimately, Mr. Leahy withheld his amendment “with a heavy heart,” though he can still bring it up on the Senate floor. Friends, now we should understand why decent people agreed to the 3/5 Clause and why FDR adamantly refused to support a federal anti-lynching bill or, for that matter, was indifferent about the non-extension of the benefits of much of the New Deal to African-Americans in the South. As Ira Katznelson demonstrates in a brilliant book, Fear Itself, on the Roosevelt and Truman presidencies, FDR needed congressional support for the New Deal, and the only way he could get it from Southern economic liberals (and former Ku Klux Klan members, like Hugo Black) was to promise that it would be, as much as possible, a "whites only" affair. And, in 1787, the only way to get a Constitution was to capitulate to slaveowners and, for that matter, to the extortionate demands of Delaware and other small states for equal representation in the Senate. As Madison said with regard to the latter, it was a "less evil" than no Constitution at all, but an evil it remained, and he was absolutely right, as was, obviously, even more the case with the aspects of the Constitution that correctly led William Lloyd Garrison to describe it as a Covenant with Death and an Agreement with Hell. But, as I myself wrote in the Times during the kerfluffle a couple of months ago about the 3/5 Clause, one sometimes has "to accept some regrettable, even “evil,” means to achieve that end. That’s the way the world works. (Think of the altogether justified alliance with Stalin to defeat Hitler.)" But, of course, this is far too facile. Most of the readers of this blog are not likely to be affected in the least by the withdrawal of the amendment, just as the whites who decided that slavery was "worth it to get the Constitution paid no price--to some extent, of course, Virginia did pay a price for submitting to Delaware's extortion). And most of those who counseled FDR to accommodate to racism paid little or no price themselves.One should not gussy up the character of the people with whom mpromises were made in 1787 or in the ;30s. At worst, Lindsay Graham is simply a bigot; a "best," he is a cowardly opportunist, scared of losting re-election, who after re-election, may "discover" that someone in his family is gay and, like Sen. Portman, suddenly realizes that that person deserves to be treated as a full member of our community. Should one be condemnatory of Shumer, Franken, or Leahy, who I assume are genuinely "heavy-hearted" about having to accommodate bigotry? Is the immigration bill worth selling out one's convictions for (at least until times are more propitious--I presume that FDR would have supported an anti-lynching bill by, say, 1948)? This is a genuine question. The answer may well be yes. The

We interrrupt the highbrow discussion of boilerplate and SCOTUS cases to bring you this breaking news from news.com.au that falls right within the utterly sweet spot of contracts and pop culture: YOU party at Justin Bieber's house? You tell no...

Employee Rights and Employment Policy Journal The Supreme Court's 2011-2012 Labor and Employment Law Decisions: From the Controversial to the Peripheral L. Camille Hebert Papers from the American Bar Foundation - The Labor Law Group Conference on The Proposed Restatement...

Coach Seat, Actual Size We blogged about this case before. Since that time, a panel of the Ninth Circuit issued a new opinion that is available here. You can read more about the case on SCOTUSblog, which provides this summary...

Last week in Burnside v. Walters, the Court took the fairly unusual step of granting cert. without having first received a brief from any of the respondents in the case:  the case’s online docket indicates that the Court called for a response in mid-February, but apparently none ever arrived.  The petition for certiorari (along with an amicus brief) was eventually distributed for the Justices’ May 9 Conference, and an order granting review followed a few days later.  However, thanks to a decision issued today by the U.S. Court of Appeals for the Sixth Circuit in another case, Burnside’s stint on the Court’s merits docket could be short-lived.  The question presented in Burnside is a straightforward one.  A provision of federal law, 28 U.S.C. § 1915, allows indigent plaintiffs to file their lawsuits in forma pauperis (IFP) – that is, without paying the filing fees.  Subsection (e)(2)(B) of that law provides, among other things, that the federal court “shall dismiss the case at any time if the court determines that . . . [the case] fails to state a claim on which relief may be granted.” Burnside filed a civil rights lawsuit in which he alleged that the Memphis police had wrongfully arrested him for making a call to 911 in a non-emergency situation; Burnside contends that the 911 call was actually made by his mother, who was worried about his safety when his cell phone battery died during the middle of a telephone conversation in which he complained about health problems. Before Burnside’s complaint, which he filed under the IFP statute, was even served on the defendants, the district court dismissed it with prejudice for failure to state a claim on which it could grant relief.   Burnside then appealed that dismissal to the Sixth Circuit, arguing that the district court should have at least allowed him to amend his complaint.  The Sixth Circuit affirmed in an unpublished – and hence non-precedential – opinion, relying on a 1997 decision in which it had held that Section 1915(e)(2)(B) affirmatively prohibits indigent plaintiffs from amending their complaints.  Burnside then filed a petition for certiorari, citing a conflict between the Sixth Circuit’s decision and the decisions of all eleven other circuits. Although the Court almost certainly granted certiorari in Burnside’s case to resolve the circuit split, this morning’s decision by the Sixth Circuit effectively did so first in LaFountain v. Harry, a case filed by a Michigan prisoner who alleges that prison officials retaliated against him after he filed administrative grievances and lawsuits.  After screening LaFountain’s complaint, the district court dismissed it with prejudice for failure to state a claim. Represented by the Vanderbilt Appellate Litigation Clinic, LaFountain then appealed to the Sixth Circuit, which reversed on this question and, in so doing, reached the opposite result from the Burnside court – this time in a precedential decision.  It relied on the Supreme Court’s 2007 decision in Jones v. Bock, holding that the requirement that a district court screen a prisoner’s complaint before allowing it to proceed does not, as a general rule, “justify deviating from the usual procedural practices.”  Because the screening requirements “say nothing about whether a district court can allow a prisoner to amend his complaint,” the court of appeals continued, under Federal Rule of Civil Procedure 15(a) – which allows a plaintiff to amend his complaint once as of right within twenty-one days of filing and instructs courts to “freely give leave [to amend] when justice so requires” – a district court can allow an indigent plaintiff to amend his complaint even when it would be subject to dismissal under Section 1915(e). Because the Sixth Circuit’s decision today in LaFountain was a published one, it is now the law of the Sixth Circuit – and means that Burnside would now prevail there.  It also means that the circuit conflict has resolved itself without the need for the Court

The petition of the day is: Ryan v. Lambright12-1190Issue: Whether the Ninth Circuit created an improper and unworkable rule by inventing a duty for district courts to sua sponte impose a blanket protective order – absent any request from the privilege holder – at the commencement of any discovery in habeas proceedings in which the habeas petitioner asserts a claim of ineffective assistance of counsel. In association with Bloomberg Law

(Eugene Volokh) David Post faulted Justice Scalia’s footnote 1 in Monday’s City of Arlington v. FCC (see also this follow-up), so I thought I’d mention my own thought on the subject, because I think there’s actually a useful lesson to law students there. The footnote, which accompanied a sentence that began, “In July 2008, CTIA—The Wireless Association,” stated: This is not a typographical error. CTIA—The Wireless Association was the name of the petitioner. CTIA is presumably an (unpronounceable) acronym, but even the organization’s website does not say what it stands for. That secret, known only to wireless-service-provider insiders, we will not disclose here. And my sense is that the footnote is just a somewhat indirect way to remind lawyers of a useful rule of brief writing — always decode any abbreviations that you use. Of course, as David points out, it’s not hard for readers to figure out what most abbreviations stand for, with just a bit of research, and the name of the association isn’t that critical in this case in any event. But I take Justice Scalia’s point to be that lawyers shouldn’t put judges to the trouble of doing that research. If you use an abbreviation that your reader is unlikely to know, or for that matter any specialized term that your reader is unlikely to know, make it easy on the reader: define it up front. And don’t just assume that the definition doesn’t matter; the reader of your brief might not share your view. In this case, for instance, a reader might think that understanding what the organization calls itself (especially when it’s a young organization, whose original full name isn’t shrouded in the mists of antiquity) might give him a better picture of the case, and might be annoyed that no decoding was given. I’m not sure why Justice Scalia thought it necessary to make such a point in this case; maybe he’d seen similar things in other briefs and hadn’t mentioned them then, but this time he thought he ought to say something. But my sense of his point is simply, “Counsel, make things easy on us — if you use a term we don’t know, define it.”

Neomi Rao (George Mason University School of Law) has posted The Choice to Protect: Rethinking Responsibility for Humanitarian Intervention (Columbia Human Rights Law Review, Vol. 44, No. 3, pp. 697-751, Summer 2013) on SSRN. Here is the abstract: Against the background of President Barack Obama’s invocation of the responsibility to protect (R2P) in Libya and the failure of the international community to assume responsibility for humanitarian crimes in countries such as Syria, this Article reexamines the R2P doctrine from the perspective of states called to intervene. The approach here is novel and fills a gap in the existing literature about R2P, which has emphasized the harm to victims and abstract principles of international responsibility. This Article demonstrates that the responsibility of one state to the people of another state posits a new international duty and that justifications offered for this duty have proven insufficient. Moreover, R2P has not changed the reality that any responsibility will ultimately be defined by states contemplating intervention, in part because there are no agreed standards for responsibility and the doctrine has various triggering conditions that must be assessed by states. Whatever the moral obligation of states, they will necessarily assess responsibility from their own perspective. In addition, domestic bureaucratic competition and conflict demonstrate how the choice about whether to intervene includes many factors unrelated to humanitarian concerns. All of this suggests that a commitment to human security through intervention requires focusing more closely on the states called to intervene.