Law

From the New York Times: The so-called hit rate — often measured as a percentage of stops that lead to an arrest or summons — has long been at the center of the fraught public debate over the stop-and-frisk tactic....

At 9:30 a.m. on Monday we expect orders from the May 16 Conference. Our list of “Petitions to watch” for that Conference is here. At 10 a.m. we expect opinions in argued cases. We will begin live blogging shortly before 9:30. On Thursday the Justices will meet for their May 23 Conference. Our list of “Petitions to watch” for that Conference is here. In association with Bloomberg Law

Josh Bowers (University of Virginia School of Law) has posted Two Rights to Counsel (Washington and Lee Law Review, Forthcoming) on SSRN. Here is the abstract: This forthcoming essay argues that there is not one constitutionally recognized right to counsel,...

(David Kopel) On Friday, May 17, fifty-four Colorado Sheriffs filed a civil rights lawsuit in Federal District Court in Denver, against two anti-gun bills passed by the Colorado legislature in March. Joining the Sheriffs as Plaintiffs are the Colorado Farm Bureau, disabled persons, Outdoor Buddies (an organization that helps disabled persons participate in outdoor sports), the Colorado Outfitters Association (the trade association for hunting guides), the National Shooting Sports Foundation (the trade association for the firearms industry), magazine manufacturer Magpul, federally-licensed firearms dealers, the state’s largest shooting range, the Colorado State Shooting Association (governing body for the shooting sports in Colorado), and Women for Concealed Carry. The Complaint is available here. The lawsuit involves House Bill 1224 (a sweeping ban on magazines, including small magazines) and House Bill 1229 (an unworkable system of background checks for temporary transfers of firearms, and for private sales). The Complaint alleges violations of the Second Amendment, Fourteenth Amendment (vagueness), and Title II of the Americans with Disabilities Act. A 38 minute video of the press conference announcing the suit is available on YouTube. In this case, I am representing the Sheriffs. Friday afternoon, Grand County Sheriff Rodney Johnson joined the case, bringing the number of plaintiff Sheriffs to 55 out of the 62 elected County Sheriffs in Colorado. (Denver and Broomfield have appointed Sheriffs who run the jail, but do not have the comprehensive responsibilities of the elected Sheriffs.) The Complaint will be amended next week to reflect Sheriff Johnson’s participation.

Antiquities from several Syrian cultural eras continue to appear on the art market. Since the last blog post describing this problem, Lebanese Broadcasting Corporation International produced the above May 17, 2013 report (not in English). It describes the arrest of one Lebanese and three Syrian nationals by Lebanese General Security for trafficking Byzantine, Roman and Aramaic artifacts stolen from Syrian churches and cemeteries.Foreign Policy on May 8, 2013 similarly tells how the Syrian civil war has led to a "bull market for antiquities dealers and thieves."American buyers should remain vigilant about purchases that have no collecting history or have suspicious provenance.This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com©2010-2013 Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC, 20 W. Park St., Ste. 207, Lebanon, NH 03766. Content is general information only, not legal advice. No attorney-client relationship is formed. Links are not endorsements of websites’ contents. Other opinions are their own. Information presented may be deemed attorney advertising. The attorney is licensed in NH and is not certified by the TX Board of Legal Specialization or by regulators in NY as a "specialist" or "expert."

Every Term, thousands of litigants file petitions for certiorari, asking the Justices to review their cases on the merits.  In roughly a dozen, the Justices initially neither grant nor deny review.  Instead, they issue an order “invit[ing] the Solicitor General to file a brief expressing the views of the United States” – also known as a “CVSG,” for “call for the views of the Solicitor General.”  There is no deadline for the Solicitor General to file these “invitation” briefs, but the government has traditionally filed a group of them in May so that the Justices can consider the petitions before their summer recess begins in late June. We expect the government to file approximately a dozen of these invitation briefs in May. The Solicitor General has now filed the first batch of briefs in response to those invitations from the Court.  The parties to the cases will now have the opportunity to file supplemental briefs responding to the Solicitor General’s submissions.  We expect the Justices to consider the following three cases at their June 6 Conference: BG Group PLC v. Republic of Argentina (filed May 10, 2013):  This case involves a bilateral investment treaty between the United Kingdom and Argentina; the treaty provides that before a foreign investor may pursue arbitration of an investment dispute with the host country, the investor must first litigate the dispute in the host country’s court for at least eighteen months.  The petitioner, a U.K. company that invested in a newly privatized gas company in Argentina, sought arbitration without first complying with the eighteen-month period, and the arbitrators held it acted properly.  But the D.C. Circuit held that a court must decide that question, and that the arbitration was void.  The petitioner asks the Court to determine whether a court, rather than the arbitral panel, must decide the issue.  The company alleges that the D.C. Circuit created a circuit split by holding that courts, rather than arbitrators, presumptively determine compliance with a precondition to arbitration. The Solicitor General has recommended that the Court deny cert. in the case.  He contends that the lower court’s “case-specific conclusions do not conflict with any decision of” the Supreme Court or any other court of appeals.  Moreover, he suggests, the treaty’s litigation requirement “appears to be uncommon in international treaty practice”; as a result, the impact of the lower court’s decision is likely to be relatively narrow, and the case is in any event “an unsuitable vehicle for establishing general principles governing the interpretation of” other arbitration agreements. [Disclosure:  Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as counsel to the petitioner in this case.] Arzoumanian v. Munchener Ruckversichersungs-Gesellschaft Aktiengesellschaft AG (filed May 10, 2013):  A California law allows victims of the Armenian genocide that occurred in the Ottoman Empire in the early twentieth century (as well as their heirs) to file insurance claims arising out of that genocide and extends the statute of limitations for those claims.  The petitioners – who are the heirs to life insurance policies that were never paid – ask the Court to determine whether (as the en banc Ninth Circuit held) the state law is preempted (i.e., invalid under federal law) under the foreign affairs doctrine. The Solicitor General has recommended that cert. be denied.  He tells the Court that the decision below is correct, that there is no conflict with either Supreme Court precedent or the decision of any other court of appeals, and that the case “does not present a question of broad importance.” Harris v. Quinn (filed May 10, 2013):  An Illinois program provides assistance to individuals eligible for Medicaid, to allow them to remain in their homes rather than face the prospect of institutionalization.  In 2003, the “personal assistants” who provide much of this

Two widely reported studies this week about bed rest for women at risk of preterm delivery and reduction of salt consumption in order to promote heart health highlight two things we don’t think about enough—that a lot of standard medical...

The Legal Theory Bookworm recommends The Health Care Case: The Supreme Court's Decision and Its Implications , edited by Nathaniel Persily, Gillian E. Metzger, & Trevor W. Morrison. Here is a description: The Supreme Court's decision in the Health Care Case, NFIB v. Sebelius, gripped the nation's attention during the spring of 2012. No one could have predicted the strange coalition of justices and arguments that would eventually lead the Court to uphold the Affordable Care Act's principal provisions. The constitutional case against the ACA was originally written off as frivolous, but after oral argument at the Court, many predicted that the unthinkable had now become likely. When the Supreme Court delivered its complicated and fractured decision, it offered new interpretations to four different clauses in the Constitution. This volume gathers together reactions to the decision from an ideologically diverse selection of the nation's leading scholars of constitutional, administrative, and health law. They offer novel insights into the meaning of the health care decision for President Obama, the Roberts Court, and the debate over constitutional interpretation. And from the blurbs:"Truly one-stop shopping for anyone interested in understanding the meaning and significance of the historic health care cases of 2012. With contributions by some of the most insightful and influential thinkers in the field, this volume clarifies and expands upon what the ACA litigation did and did not signify, what it says about the legacy of the Roberts Court, and where we go from here. An invaluable read."-Dahlia Lithwick, senior editor, Slate "This is a wonderful collection of essays about "the case of the century" by the nation's leading scholars. Each page yields new and valuable insight."-Barry Friedman, Jacob D. Fuchsberg Professor of Law, New York University School of Law "This remarkable book shows beyond doubt that, contrary to Justice Robert Jackson's famous quip, the Supreme Court is neither infallible nor final. The health care case is over, but the argument over what it will mean has just begun. Anyone who seeks an appreciation of the stakes of that debate will find this diverse set of provocative essays indispensable reading."-Michael C. Dorf, Robert S. Stevens Professor, Cornell University Law School

By Mark Esposito, Guest Blogger Scientists from Aristotle to his 21st Century successors have wondered how complex structures form in nature. Wim L. Noorduin, a postdoctoral fellow at the Harvard School of Engineering and Applied Sciences (SEAS) and lead author of a paper appearing on the cover of the May 17 issue of Science, may have the clues in his beaker.  Manipulating chemical gradients in liquid have produced incredible flower-like structures based on the precipitation of crystalline forms on the microscopic level. Measured in microns, the crystal  flowers (such as those pictured left)  can be created by changing the chemical soup causing the crystals to grow towards or away from chemical gradients as the pH of the reaction shifts back and forth.  Broad leaves,  thin stems, or a rosettes of petals are all determined by the chemical reactions. The work is important because  changes in chemical gradients  influence growth in nature: “delicately curved marine shells form from calcium carbonate under water, and gradients of signaling molecules in a human embryo help set up the plan for the body. Similarly, Harvard biologist Howard Berg has shown that bacteria living in colonies can sense and react to plumes of chemicals from one another, which causes them to grow, as a colony, into intricate geometric patterns.” The flower making process involves dissolving common substances found in nature, a salt ( barium chloride) and waterglass (sodium silicate), into a beaker of water.  CO2, already in the air, dissolves into the solution setting off a reaction. The crystals (known as barium carbonate crystals) form as the acidity level of the water around the crystals drop. As pH drops, the dissolved waterglass reacts to form a tiny layer of silica around the crystals which further drops the acidity and allows for the growth of the complex man-made “flowers.” To create broader leaved varieties, Noorduin adds more CO2.  Reversing the pH gradient at the right moment can create curved, ruffled structures. “You can really collaborate with the self-assembly process,” says Noorduin. “The precipitation happens spontaneously, but if you want to change something then you can just manipulate the conditions of the reaction and sculpt the forms while they’re growing.” And even if the work at Harvard didn’t open windows into the creation of the natural world, bringing to life more flowers  seems value enough. It was Monet who attributed his motivation for painting to the existence of flowers and Auguste Rodin, the father of modern sculpture, who said as poetically as he carved: The artist is the confidant of nature, flowers carry on dialogues with him through the graceful bending of their stems and the harmoniously tinted nuances of their blossoms.  Every flower has a cordial word which nature directs towards him. Source: Science Daily ~Mark Esposito, Guest Blogger

(Ilya Somin) My wife and I recently watched Star Trek: Into Darkness, the second in the series of J.J. Abrams-directed”reboot” Star Trek movies that began in 2009. On the plus side, the film had some impressive action scenes and special effects. It also had more and somewhat better character development than its predecessor. Long-time fans of the series might like the many clever nods to the original series from the 1960s. At the very least, the movie was fun to watch, and I think we got our money’s worth. Nonetheless, the negatives outweigh the positives. Unsurprisingly, Into Darkness has most of the same flaws as the previous Abrams Star Trek movie, which I criticized here. Both films essential turn Star Trek into an action movie that just happens to utilize Trek characters and settings. I am far from an uncritical admirer of Star Trek as envisioned by Gene Roddenberry and his successors. Nor was I ever the kind of fanatical Trekkie who goes to conventions wearing Vulcan ears or signs up for classes at the Klingon Language Institute. But, despite its many flaws, I admired the Star Trek franchise’s willingness to take on big questions about the kind of future we should want for humanity. Abrams’ “reboot” essentially ignores all serious issues, and just ramps up the action. I don’t deny that a “reboot” may have been needed, given the poor quality of the last several old-line Star Trek movies; but not a reboot that jettisons almost everything that made Star Trek interesting and unique. In addition, Into Darkness has huge plot holes big enough to fly a whole fleet of Romulan warbirds through. In the interest of avoiding spoilers, I won’t go through them in detail. I will only note that, for the Federation to get into the predicament that is the main focus of the plot, Star Fleet’s leadership would have to be ridiculously stupid. To take just one of many examples, it seems that Star Fleet Headquarters and Earth generally have no fixed defenses of any kind against incoming warships and missiles, even though previous history clearly established that such defenses are both feasible given the level of their technology, and clearly necessary, given previous enemy attacks. Yet none of the characters even mention this and other comparably ridiculous mistakes, not even the supposedly hyper-logical Mr. Spock (who makes some whopping errors of his own in the movie, which are also ignored by the other characters). Perhaps the real implicit message of the reboot movies is to endorse the message of social critics who worry that advancing technology has bred a “generation of nincompoops”. Maybe the producers expect the nincompoopery to get even worse in the future, infecting Vulcans and Klingons as well as humans. Indeed, if the Klingons, Romulans, and other rivals of the Federation were minimally competent, it’s hard to understand how the Star Fleet portrayed in the reboot movies could possibly have become a major power in the galaxy. Maybe the “darkness” into which the Federation has descended is a severe outbreak of extreme stupidity among Star Fleet’s best and brightest. Although I strongly disagree with this kind of technopessimism, a science fiction series that seriously explored the idea that high technology leads to a “dumbed down” society might be interesting. Unfortunately, Abrams’ movies seem to raise the issue only unintentionally.