Adjunct Law Prof Blog

Thurgood Marshall Conference: The Constitutionalization of Immigration Law

The Thurgood Marshall School of Law in Houston will host a two-day conference April 4-5 titled "The Constitutionalization of Immigration Law" (brochure here).  I am honored to be included among the speakers at this conference.  I will be on the panel for "Sixth Amendment Right to Counsel in Texas Court Proceedings - Padilla and 11.07 Habeas Corpus," which will be presented Thursday afternoon.  I will be joining Naomi Jiyoung Bang, Senior Attorney at FosterQuan LLP in Houston (and also a Clinical and Adjunct Professor of Law at South Texas College of Law) and Franklin Bynum, from the Harris County Public Defender's Office, on this particular panel.  Topics covered in the conference are:

• Pleanary  Power - Supreme Court Deference to the Executive and Legislative Branches:  Brief History of the Chinese Exclusion Cases;
• Fifth Circuit Practice Pointers - A View from the Bench;
• Washington Insiders View on Immigration Reform, DACA, Stateside Waivers, and Path to Citizenship;
• Fifth Amendment - Due Process Rights to Counsel in Immigration Proceedings: Matter of Lazada, Compean I & II, MAM and Circuit Court Decisions;
• Sixth Amendment Right to Counsel in Texas Court Proceedings - Padilla and 11.07 Habeas Corpus;
• Sixth Amendment Right to Effective Assistance of Counsel;
• Fourth Amendment Search and Seizure in Immigration Proceedings;
• Restitution and Compensation for Victims of Human Trafficking in the United States; and
• Round Table Clinicians Luncheon - Infusing Best Practices in Immigration Law School Clinics.

Thank you to Professor Fernando Colon-Navarro, Director of LLM and Immigration Development at Thurgood Marshall for this invitation.  I am honored to participate in the comprehensive and timely conference.

Craig Estlinbaum

SMU Law: Federal Circuit and Patent Law Symposium

The SMU Dedmon School of Law will host its 10th Annual Symposium on Emerging Intellectual Property Issues on March 22, 2013, with a presentation titled "The Federal Circuit and Patent Law."  The one day symposium includes four panel discussions - The Federal Circuit's Stewardship of Patent Law: A View from the Bench; Institutional Roles: The Federal Circuit and the Supreme Court; Allies or Competitors: The Federal Circuit and the U.S. Patent and Trademark Office; and Innovation, Disruptive Technologies and the Federal Circuit.  Bernard J. Knight, Jr., General Counsel, U.S. Patent and Trademark Office is scheduled to deliver the luncheon and keynote address.  A complete brochure for the symposium is here.

Craig Estlinbaum

DC Circuit Upholds EPA Gashouse Regulations

In what on writer called a "stinging rebuke to industry and [the challenging] states," a three-judge DC Circuit court panel Tuesday upheld the Environmental Protection Agency's ("EPA's") greenhouse gas regulations.

The case, Coalition for Responsible Reg v. EPA, No. 09-1322 (D.C. Cir. June 26, 2012), following the United States Supreme Court's 5-4 decision in Massachusetts v. EPA, 549 U.S. 497 (2007) which compelled the EPA to regulate air pollutants under the Clean Air Act's ("CAA's") authority.  The EPA in turn issued an Endangerment Finding, determining that greenhouse gases may "reasonably be anticipated to endanger public health or welfare" (citing the CAA) and the Tailpipe Rule, setting emission standards for cars and some trucks. The EPA also ordered certain stationary greenhouse gas producers to obtain construction and operating permits.  Finally, the EPA issued a Timing and Tailoring Rule providing that only the largest stationary producers would be initially subject to the permit requirements.

The Petitioners which included some states and industry groups challenged the rules on ground that the EPA had improperly interpreted the CAA.  Yesterday, the appeals court panel consisting of Judges Sentelle (Reagan appointment), Rogers (Bush II) and Tatel (Clinton), rejected those challenges, allowing the EPA rules to stand.

The next meaningful step for the challengers in this case is the United States Supreme Court, as en banc review of this unanimous decision seems very unlikely.  The Massachusetts case was decided five-to-four, and four justices are required to grant certiorari. Inasmuch as the court's composition has changed with two justices from the Massachusetts majority (Stevens, the opinion's author, and Souter) having left the court, I would say there is some chance the Massachusetts dissenters will vote to grant certiorari in the case.

Craig Estlinbaum

U.S. Department of Labor Becoming More Aggressive

The U.S. Department of Labor is now sharing information with several states and more aggressively enforcing the FLSA. An interesting September 19, 2011 article from the Boston Herald summarizes the new enforcement activity, here.

Mitchell H. Rubinstein 

Dodson: Justice Souter and the Civil Rules

Professor Scott Dodson (William & Mary) has posted "Justice Souter and the Civil Rules" on the Social Sciences Research Network.  Here is the abstract:

Justice Souter’s recent retirement from the Court after nearly twenty years presents a unique opportunity to comment on his legacy. No doubt others will eulogize or castigate him for his membership in the Planned Parenthood v. Casey troika, but there is much more to the man and his jurisprudence. Indeed, the danger is that Justice Souter will be pigeonholed into one opinion, an opinion that he wrote early in his Supreme Court career, to the detriment of understanding the complex justice that he was. This short essay therefore analyzes a unique set of opinions--those that he authored on the federal civil rules. And what it finds is a justice deeply committed to the fair treatment of the litigants that come before him. That trait says much about David Souter, both the justice and the man.

This is a short, very thoughtful and very well written essay.  Essays that examine a Supreme Court Justice's work in a particular legal area often make for interesting reading to me - Dodson's work here is no exception.  Dodson's work is forthcoming in the Washington Univ. Law Review.

Craig Estlinbaum

Do Magistrate Judges Have The Authority To Sanction Attorneys??

Diverse Views Offered on Magistrate Judges' Authority to Sanction

is and interesting New York Law Journal article. It reports on one case. As the article states:

Although Second Circuit Judges Dennis Jacobs, Pierre N. Leval and Jose A. Cabranes agreed to reverse sanctions leveled against three Cravath, Swaine & Moore lawyers in an alien tort statute case on Friday, they could not agree on whether or not magistrate judges can sanction attorneys without the consent of the parties. Judge Cabranes was persuaded by other courts that a motion for sanctions was the functional equivalent of an independent claim, while Judge Leval said that "the list of matters excluded from magistrate judges' broadly stated power to hear and determine does not mention the imposition of sanctions." In a third concurring opinion, Judge Jacobs said the circuit should not address the issue.

Mitchell H. Rubinstein

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Goldman: Why Law Students Should Take the Federal Courts Course

Roger Goldman (Saint Louis University Law School) has posted his short essay, "Why Students Should Take the Federal Courts Course," on the Social Science Research Network.  Saint Louis University Law Review has accepted the paper for publication.  Here is the abstract:

The most unique feature of the American judiciary is its dual system of trial courts, one state and one federal. This article explores the reasons traditionally given for the need for lower federal courts and whether, in practice, the federal courts are actually serving those needs. For example, it has been assumed that state courts are less hospitable to federal civil rights and consumer claims than federal courts, yet in many jurisdictions, plaintiffs’ lawyers prefer filing claims in state courts under state anti-discrimination or consumer laws rather than federal laws to prevent removal of the case to federal court. The article encourages third-year law students to take this capstone course because of its unique blend of the highly theoretical with the very practical questions facing any lawyer in deciding whether to file in - or remove to - federal court.

I took the Federal Courts course offered at South Texas Law School when I was in law school and the course was one of my favorite law school classes, so I can relate to Professor Goldman's essay.  Any law student considering a trial practice should understand the federal court system -- not all cases that begin in state court end there.

Craig Estlinbaum

Johnson & Johnson wins $1.67 Billion from Texas Jury

Johnson & Johnson won a $1.67 billion federal court verdict from an East Texas jury yesterday, the largest patent jury verdict in U.S. history.  Johnson & Johnson's Centocor unit sued Abbott Laboratories claiming Abbott interfered with Johnson & Johnson's exclusive license to produce the Humira arthritis drug.  The jury awarded Johnson & Johnson $1.17 billion in lost profits and $504 million in royalties.  Bloomberg has the full story here.

Craig Estlinbaum

11th A Does Not Bar EEOC From Suing For Age Discrimination

EEOC v. Board of Supervisors, ___F.3d___(5th Cir. Feb. 9, 2009), is an important decision. The court held that the Eleventh Amendment protects public universities from lawsuits by former employees under the Age Discrimination in Employment Act — but it does not prevent the EEOC from suing educational institutions.

The 5th stated that it is “well established” that the Eleventh Amendment protects states from lawsuits by private individuals. However the court cited decisions in two other federal appeals courts — including a 2002 case involving the University of Wisconsin System — to assert that the Constitution does not bar the federal government from suing a state (or one of its entities, like a public college) to enforce federal law.The 5th also rejected the university’s argument that, as the court puts it, “the EEOC is circumventing the Eleventh Amendment to obtain personal relief for a party barred from suing ULM.”

Mitchell H. Rubinstein

Iowa Law Review: Federal Procedural Justice Symposium

The Iowa Law Review will present a symposium titled "Procedural Justice:  Perspectives on Summary Judgment, Peremptory Challenges and the Exclusionary Rule" on February 29, 2008 at the University of Iowa School of Law in Iowa City.  Here is the information on the symposium.

The symposium includes three panels:  Summary Judgment and Seventh Amendment Concerns, Batson v. Kentucky and the Use of Peremptory Challenges, and Exclusionary Rule Post-Hudson v. Michigan.  The lunch presentation includes four federal judges addressing issues presently confronting the federal judiciary.

This is a particularly timely symposium.  Last term, the United States Supreme Court decided Bell Atlantic v. Twombly (05-1126), an important Rule 12(b)(6) decision affecting pleading standards in federal courts.  The case has generated significant interest in the academy and among federal practitioners.  Professor Edward Brunet (Lewis & Clark), Professor Suja A. Thomas (Cincinnati) and Professor William E. Nelson (NYU) will participate on this panel.

Batson continues to generate heavy commentary and interest -- the Supreme Court heard argument in another Batson case, Snyder v. Louisiana (06-10119), in December (see commentary by SCOTUS Blog's Lyle Denniston here), and that case is very likely to further develop constitutional restrictions on peremptory strikes.  Professor David Baldus (Iowa), Professor Camille A. Nelson (St. Louis) and Dr. V. Hale Starr (Starr Litigation Services) will present this panel.

Finally, the Court's decision in Hudson v. Michigan (04-1360) leads some to believe that the Fourth Amendment exclusionary rule has a limited life-span; others are not so sure.  Professor Albert Alschuler (Northwestern), Professor David Moran (Wayne State) and Professor James Tomkovicz (Iowa) will debate these questions in the afternoon panel session.

Craig Estlinbaum