May It Please The Court
Quote of the Day - If everybody is thinking alike, then somebody isn't thinking.
Coast To Coast Internet Radio Program On Military Recruiting In Law Schools
This week's Coast to Coast, hosted with my co-host Robert Ambrogi takes on the Solomon Amendment and arguments before the Supreme Court in Rumsfeld v. FAIR which may impact law schools across the country. You can hear a portion of the actual argument from the Solicitor General, Paul Clement, arguing for the Justice Department and reaction from our special guest, Attorney Lara Schwartz, chief legislative counsel for the Human Rights Campaign
Attorney Lara Schwartz is Chief Legislative Counsel for the HRC, who joined as senior counsel in 2002. She's a graduate of Harvard Law School and Brown University, and admitted to the bars of Maryland and Washington, D.C. She advocates against discriminatory constitutional amendments such as the “Federal Marriage Amendment.” She promotes legislation on tax, benefits and other issues that affect the everyday lives of gay, lesbian, bisexual and transgender people and their families, as well as legislation to prevent bias motivated violence. Attorney Schwartz works on matters affecting the judiciary, including judicial nominations and opposition to measures that threaten judicial independence.
The issue pits a broad group of law professors against the federal government. Click on the podcast icon below or download directly from the Legal Talk Network.
Does The Bible Have A Place In The Courtroom?
You may have quoted the language yourself: "An eye for an eye and a tooth for a tooth." Frequently, when I've quoted that language to my mother, as a minister's wife she responds with, "turn the other cheek." It's the difference between the Old and the New Testaments.
But does that language belong in the jury room during death penalty deliberations a capital murder case?
The Ninth Circuit sees no problem. Although it's improper for a prosecutor or a defense lawyer to quote biblical verses in closing argument or during the case, the Court thinks that bible sayings are such a part of everyone's common experience, that it's not Constitutionally defective to discuss them during deliberations. And discuss them they did.
In the case of Stevie Fields, the jury foreman brought into the jury room during the death penalty deliberations notes that referred to an "eye for an eye" and "he who lives by the sword shall die by the sword" for the death penalty, and "no real deterrent value - mostly because murderers are not normal" against the death penalty. Both deterrence and punishment are generally accepted reasons for the penalty.
Did the verses have an effect? Fields' defense lawyer claims the jury was 7-5 in favor of life without the possibility of parole, and then after the verses were brought in, the vote switched in favor of the death penalty.
You can read the specifics of Fields' 1978 "one-man crime wave" here, and reach your own conclusion.
Police Task Force Meetings Subject To Public Scrutiny, Open Meetings
The secret police are secret no more. Thanks to First Amendment activist Richard P. McKee, who is a professor of chemistry at Pasadena City College, a La Verne resident and past-president of the California First Amendment Coalition, the Second Appellate District, Division Two of the California Court of Appeal ruled that the Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force cannot hold closed meetings. The ruling comes as a result of McKee's work proving that the Task Force was a public agency and subject to the Brown Act.
Apparently L.A. Impact (as the Task Force is more commonly known) according to the Court opinion, has arrested 3,600 people, seized 123,000 pounds of cocaine with a street value of $5 billion, confiscated $80 million in cash and one Lear Jet. That's an awful lot of work for one agency that is not accountable to the general public.
If you're like to watch reality cop shows, now's your chance to watch the real thing, in person. Expect that it won't be anywhere near as exciting, however, especially since it will be in the form of a committee meeting.
The Rules Change For Modifying Consent Decrees
Entering into a Consent Decree and then trying to modify it later based on changed circumstances just got a bit dicier. Consent Decrees have been used for years between government agencies and private companies to accomplish a number of things, but in particular, they've been adopted wholeheartedly by the environmental industry. The USEPA and various state agencies that supervise environmental issues prefer to use Consent Decrees because they avoid expensive litigation, long delays and ensure that the agency gets what it wants to clean up contamination.
Private industry enters into Consent Decrees for the same first two reasons, but not for the third. Instead, we try to negotiate a more fair deal than we might have obtained in litigation. It's a bit of give and take, but the benefits from the first two reasons typically outweigh the detriment from the third.
Especially when we know that we can go back years later to the Judge that signed off on the original Consent Decree and seek to modify it. Now, however, the Ninth Circuit's opinion in U.S. v. Asarco yesterday gives two more hurdles to overcome before modification can occur. In fact, the Court likens a Consent Decree to a written contract and uses typical contract interpretation requirements to decide whether to allow the private party to modify the Consent Decree.
Previously, we had just two hurdles: (1) show a significant changes in the factual conditions or in the law warranting modification; and, (2) whether the proposed modification is suitably tailored to resolve the problems created by the changed factual or legal conditions. Those two hurdles are not news (that's been the law since the 1992 Supreme Court case of Rufo v. Inmates of Suffolk County).
The addition of a third and fourth hurdle, however, is the news from Asarco. Now, the party trying to modify the Consent Decree must also show that: (3) the changed conditions make compliance with the consent decree more onerous, unworkable or detrimental to the public interest; and, (4) the changed conditions were not anticipated at the time the Consent Decree was signed. To make matters worse, the Court described these last two hurdles as "heavy burdens." But there's hope: if the changed conditions were anticipated, then the private party can still obtain a modification of the Consent Decree if the party can show a reasonable effort to comply with the Decree.
That result didn't occur for Asarco, but the case does provide some solid guidance for entering into future Consent Decrees.
Living And Dying To Pass The Bar
In the category of "I don't make the news, I just report it," there were these two competing stories in the news recently: former Stanford Law School Dean Kathleen Sullivan, a relatively new lawyer at Quinn Emmanuel, flunked the California Bar exam, according to the Wall Street Journal (subscription required).
On the other coast, the New York Bar granted a posthumous admission to deceased Suffolk County Prosecutor Joseph Rizzo (subscription required).
Insert your own pun here: _____________________.
Crafty New Credit Card Scam Can Draw You In And Take Your Money
Glenn Garnes of Esq. Law Tech Weekly has an alert to a particularly crafty telephone credit card scam. Please be careful out there, especially with the holiday season upon us.
If you're concerned about receiving a call like Glenn outlined, here's how you can talk to a human instead of a robot at your credit card company.
New Orleans Levees: No Finger In The Dike Or Eyes On The Ball
Questions still abound why the levees broke. The New Orleans Times-Picyaune identifies sloppy levee inspections that included $900 lunches and reliance on people who cut the grass on the levees to report damage instead of following these regulations and guidance documents, which require thorough inspections.
According to the T-P, engineers who inspected levees in the 1950's described a 10-mile a day inspection process followed up by soil borings. That process somehow recently turned into 100-mile a day inspections and photo opportunities. A review of the U.S. Army Corps of Engineers' web site turned up no copies of the "informal" levee inspections. A review of the Mississippi River Commission's web site revealed three- to five-page cursory reports, and Commission meetings that were held on the river, not on or near the levees.
Perhaps that's why the federal government is going to completely fund the reconstruction of the levees.
Eliminating (Most) Spellling Errors In Blogs
You may not have noticed, but if you're a blogger, there's another way to spell check your post. While some of the mainstay blogging platforms offer spellcheck as part of their service, not all bloggers use those platforms. MIPTC, for example, is built on an independent platform more like a webpage FTP site.
To get the free feature, download the Google Toolbar and add the spellcheck icon to the toolbar. Then, while you're in your post prior to uploading it, just click on the spellcheck icon. The feature is actually meant to check internet forms (dialog boxes), but in most blogging platforms, the entry mechanism is a giant dialog box that Google can spellcheck.
Yes, the headline misspelling was intentional. Just seeing if you were paying attention.