Law Librarian Blog

Wisconsin Law School Privilege In Court

Wisconsin's diploma privilege to practice in that state without taking the bar exam for graduates of Wisconsin law schools is under attack.  Actually, it's been under attack since 2007 with lawsuits filed, dismissed, reinstated on appeal and turned into a class action.  The latest event came last Thursday when Judge Posner returned the case to the District Court with an opportunity for plaintiffs to prove their case.  Here the issue is whether the Wisconsin rule favoring attendees of Wisconsin Law Schools (there are only two, Marquette and the University of Wisconsin at Madison) burdens interstate commerce.  Graduates of other law schools not in Wisconsin either have to practice for five years in another state or take the Wisconsin Bar Exam in order to practice there.  Wisconsin is the only state with this type of rule. 

The defendants argued that Wisconsin Rules require Wisconsin law schools to teach Wisconsin law.  The Court did not deny this but said that there is no way to tell if Wisconsin schools actually teach that as a component when a large part of the bar exam focused on "national" law.  The Court did not assume that the curriculum matched the rules or even if it did, whether that made a difference in the analysis.

The case is Wiesmueller v. Kosobucki (08-2527, July 9, 2009).  The Milwaukee Journal-Sentinel has a story on the case.

From the opinion:

It is enough that an aspiring lawyer’s decision about where to study, and therefore about where to live as a student, can be influenced by the diploma privilege to bring this case within at least the outer bounds of the commerce clause; for the movement of persons across state lines, for whatever purpose, is a form of interstate commerce. Sestric v. Clark, supra, 765 F.2d at 661. The effect on commerce of the discriminatory diploma privilege may be small and, if so, not much would be required to justify it. Id. at 664. Our concern is that there may be nothing at all to justify it. The lawyer for the state acknowledged at argument that she has no personal knowledge that Wisconsin law occupies a larger place in the curriculum of the Wisconsin law schools than of law schools elsewhere. For all that appears, the faculties of the Wisconsin law schools use the same casebooks and other teaching materials used at schools in other states—which is likely, since the authors of casebooks aim at a national market. Marquette and Madison are law schools of national stature, and we can hardly infer without any evidence that they concentrate on educating their students in the law of the state that these law schools happen to be located in 12 No. 08-2527 rather than prepare them to practice anywhere in the United States. Indeed, since no graduates of these law schools take the Wisconsin bar exam, the faculty has less incentive to spend time drilling them on Wisconsin law than the faculty of most law schools in other states would have to concentrate their teaching on the law of their state in order to increase the bar exam pass rate of their law school’s graduates.

* * * *

The defendants argue that the rule of the Wisconsin Supreme Court that we quoted requires that the curriculum of the Wisconsin law schools include Wisconsin law. But that cannot be inferred from the language of the rule or from the list of mandatory and elective courses. The rule merely requires the law schools to offer a rigorous, well-rounded legal education, and it cannot be assumed that such an education must be oriented toward the law of a particular state, even the state in which the school is located. The reference to “rules and principles of substantive and procedural law as they may arise in the courts and administrative agencies of the United States and this state” may denote those rules and principles that are common across American states, including the rules and principles of federal law, of the common law, and of uniform statutes such as the Uniform Commercial Code—in short, the rules and principles that are the common core of legal studies in all law schools that have a national rather than local orientation. This interpretation of the rule is consistent with the fact that Wisconsin permits lawyers who have practiced in another state for a time to practice in Wisconsin without having to pass the bar exam or demonstrate any knowledge of Wisconsin law.  [MG]

GM's Asset Sale Approved

Bankruptcy Judge Robert Gerber gave GM the go-ahead late Sunday night to sell its most-prized assets -- including the Buick, Cadillac, Chevrolet and GMC brands -- to a new government-backed company. Text of opinion here. [JH]

Minnesota Supreme Court Rules for Franken

The news just broke.  The Court ruled that Franken won the senate election over Coleman.  The opinion from the Court's web site is here.  The Washington Post story is here.  [MG]

SCOTUSblog Releases End of Term "Super Stat Pack"

SCOTUSblog has published its stats, charts, lists, and observations about the just-concluded Supreme Court Term. The "Super Stat Pack" includes data covering the following:

Opinion Tally
Justice Agreement
Decisions by Final Vote
Frequency in the Majority
Opinion Authors by Sitting
Circuit Scorecard
The Court’s Workload
Grant Rates by Conference
OT08 Questions Presented and Results (with embedded links to slip opinions)

Check out the blog's visual representations of the voting lineups in each decision. See also Mark Giangrande's (DePaul) LLB post, Supreme Court Actions at the End of Term, for the Court's final actions this Term. [JH]

Supreme Court Actions at the End of Term

The Court issued two of the three highly awaited opinion this morning, concluding the 2008-2009 term.  The opinions in the New Haven firefighter case reversed the lower courts allowing New Haven to throw out the test results when it became apparent that no minority applicants would be promoted.  The banking regulation case which addressed the tension between state and federal regulation of national banks concluded that states can enforce state laws regarding banking practices, though with limitations as to how states investigate national banks.  The Hillary Clinton movie case regarding whether an anti-Clinton movie was subject to campaign finance disclosure regulations was punted for re-argument at the beginning of the next term, scheduled for September 9th.

Cuomo, Attorney General of New York v. Clearing House Association, L.L.C., et al.(08-453).  The New York AG (at the time Elliot Spitzer, now Andrew Cuomo) sent letters to various nationally regulated banks requesting non-public information in lieu of subpoena.  The banks, through their trade association, and the Office of the Comptroller of the Currency sued to prevent disclosure to the Attorney General under the terms of the National Bank Act.  The Court distinguished between visitorial powers and enforcement powers under the Act and concluded that states can enforce state laws against national banks.  The requested information, however, must be developed in those proceedings.

Ricci et al. v. DeStefano(07-1428).  The City of New Haven, CT, threw out test results for promotion within the Fire Department when it became apparent that white candidates had significantly outperformed minority candidates.  New Haven argued that the city would be subject to liability by minority test takers had it certified the results.  The affected white and Hispanic candidates sued.  The lower courts upheld New Haven's action.  The Supreme Court held that New Haven violated Title VII.  Under law, before New Haven can attempt to avoid or remedy race conscious disparate impact, it must have a strong basis to believe it will be subject to liability if it fails to take the discriminatory action.  The Court adopted the strong basis in evidence standard to resolve conflicts between the disparate treatment and disparate impact provisions of Title VII.  New Haven does not meet that standard in this record.

In other significant action:

The Court has let a court order stand, barring enforcement of a Missouri law limiting protests at funerals.  The 8th Circuit Court of Appeals issued the order while a judge considers the constitutionality of the law (Nixon v. Phelps-Roper, 08-1244).

The Court let stand a ruling by the 2nd Circuit that barred lawsuits by victims of the September 11th attacks against Saudi Arabia for allegedly giving money to charities that would wind up financing Al-Qaida.  The lower court said the suit was barred by sovereign immunity in these circumstances (Federal Insurance Co. v. Kingdom of Saudi Arabia, 08-640).

The Court agreed to hear an antitrust case involving the NFL.  The issue is whether the 32 teams of the league can enter into an exclusive agreement to make team apparel without violating antitrust laws (American Needle v. National Football League, 08-661).

The Court refused an appeal over a New Hampshire law forbidding the analysis and resale of doctor prescriptions information.  Companies that collected that information for marketing purposes appealed a 1st Circuit ruling upholding the law (IMS Health, Inc. and Verispan, LLC, v. Ayotte, 08-1202).

The Court refused to hear an appeal by movie and television studios over Cablevision's remote DVR service.  The producers argued in the lower courts that the service was akin to video on demand which should be licensed.  The lower courts said the recording service was no different whether the recording device was in the home or at the company (Cable News Network v. CSC Holdings Inc., 08-448).

The Court agreed to hear a case interpreting the Hague Convention on Child Abduction.  The lower court said only the parent with custodial rights can invoke the treaty.  At least one Circuit disagrees with that ruling (Abbott v. Abbott, 08-645).  [MG]

Supreme Court Action Today

We're still waiting for Ricci to come out.  With that, here are today's opinions.

Horne, Superintendent, Arizona Public Instruction v. Flores et al. (08-289).  The Respondents in the case were plaintiffs in an action that alleged inadequate funding for English Language Learners, as required to achieve broader goals under the Equal Educational Opportunity Act (EEOA).  The District Court issued a series of orders and decrees over years of judicial oversight first in the Nogales Unified School District, and later extended them to cover the entire state of Arizona.  The legislature passed a finding bill that would incrementally increase the funding.  Various officials, as a result, moved the District Court to rescind its orders based on the bill, and in the alternative to grant relief under Federal Rule of Civil Procedure 60(b)(5).  That rule allows for relief when a judgment is no longer equitable, among other reasons.  The Court of Appeals reversed and ordered a hearing under Rule 60(b)(5).  The District Court ruled that the bill still did not create adequate funding and denied relief.  The Court held, after deciding some standing issues, held that the lower courts did not conduct the proper analysis.  The narrow focus of the English Language Learner funding was one element of achieving the goals of the EEOA.  Arizona moved to a program of structured English immersion which by measure was more effective than bilingual education.  Moreover, Congress passed the No Child Left Behind Act which represents changed federal education policy.  Because the EEOA does not focus on funding but goals, the petitioners can press for relief under an expanded analysis.  There was also question as to whether there was enough of a basis to extend the order state wide.

Atlantic Sounding Co., Inc. v. Townsend (08-214).  Townsend was injured while working on a tugboat owned by petitioner Atlantic Sound Co.  He sued under the Jones Act alleging, among other issues, the arbitrary and willful failure to provide maintenance and cure.  He also sought punitive damages.  The District Court would not dismiss the punitive damages claim and the Circuit Court affirmed on interlocutory appeal.  The Court held that neither the Jones Act or precedent of the Court precluded a longstanding remedy under general maritime law.  Punitive damages are available.

Melendez-Diaz v. Massachusetts (07-591).  Massachusetts introduced certificates of state laboratory analysts stating that material seized by police and connected to petitioner was cocaine of a certain quantity.  Massachusetts required the certificates to be sworn before a notary public before introduced into evidence.  Petitioner objected, stating that the analysts were required to testify in person.  The trial court admitted the certificates into evidence and the the Massachusetts Appeals Court affirmed.  The Supreme Court reversed holding that the petitioner's Sixth Amendment right to confront a witness against him was violated.

Safford Unified School District #1 et al. v. Redding (08-479).  This is one of the big cases from this term, and one that is getting the most news coverage.  The issues are whether a student strip search of a 13 year old girl violated her Fourth Amendment rights, and whether individuals from the School District are immune from suit.  Assistant Principal Wilson showed Savana Redding a day planner containing knives and other contraband.  Redding said the planner was hers, but she lent it to her friend Marissa.  He also showed her four pills, three of which were prescription strength.  All were banned under school rules.  Redding denied knowledge of these.  Wilson and another administrator searched Redding's backpack and found nothing.  The assistant took Redding to the school nurse who had Redding remove her outer clothing and then to pull on the elastic of her underwear, exposing her to some degree.  No pills were found.  Redding's mother sued the School District for Fourth Amendment violations.  The District Court granted summary judgment on a qualified immunity defense, finding no Fourth Amendment violation.  The Court of Appeals reversed, holding that the strip search of the child was unjustified by school officials under existing Supreme Court precedent.  The Court of Appeals reversed the summary judgment for Wilson, but affirmed it as to the assistant and the nurse as they were not independent decisionmakers.  The Supreme Court held that the search of Redding's underwear violated the Fourth Amendment.  Wilson may have had enough suspicion to search Redding, but because the drugs in question did not indicate a danger to students, searching her underwear went too far.  The individual defendants had qualified immunity, but the School District's liability should be examined on remand.  A news analysis appears in the Washington Post, among other places. [MG]

Supreme Court Action Yesterday

I had hoped to get this post out yesterday.  We've been dealing with some, cough, cough, business here at DePaul that is an unfortunate distraction, even at my level of employment.  Nonetheless, we are getting close to the end of the current Supreme Court term and the cases released yesterday are among the more significant opinions from the Court.  We, of course, still await the Ricci decision which will reflect in one form or another on nominee Sonia Sotomayor.  With that, here are the three opinions from yesterday:

Coeur Alaska, Inc. v. Southeast Alaska Conservation Council(07-984).  Coeur Alaska received permits from the Army Corps of Engineers (CWA §404) and the EPA(CWA §402) to release slurry into a lake and then to release purified water into a downstream creek as waste material in a gold mine operation.  Slurry is considered a pollutant.  SEACC sued the Corps for not following the Clean Water Act in issuing the permit, arguing that Coeur Alaska should have applied for a permit from the EPA which has more stringent rules for dumping pollutants from mining operations.  The Court held that the Corps have the authority to issue the permit.  More on this from the New York Times report on the case. 

Northwest Austin Municipal District Number One v. Holder, Attorney General, et al.(08-322).  Plaintiff is a utility district in Texas that sued the federal government for relief under the Voting Rights Act for a bailout of provisions under §4 of the Act.  §5 required preclearance before it can make changes to its election procedures even though there is no evidence of voter discrimination. The District argued that it was a political subdivision under the Act.  In the alternative, it argued that the Voting Rights Act was unconstitutional.  The Court used the doctrine of constitutional avoidance to decide the narrow issue under §4 rather than reaching the constitutional issue.  Here is the Washington Post story on the issue.  Another good commentary is at fivethirtyeight.com.

Forest Grove School District v. T.A.(08-305).  Respondent was diagnosed with learning disabilities.  His parents removed him from public school and placed him in a private academy.  They requested reimbursement under the Individuals with Disabilities Education Act (IDEA) for reimbursement.  The act requires a free appropriate public education.  The School District denied the reimbursement.  A hearing officer then ordered the reimbursement.  The District Court set aside the hearing officer order, and the Circuit Court reversed the District Court.  The Supreme Court held that IDEA authorizes reimbursement for private special education when the public school fails to provide  a free appropriate public education whether or not the child previously received services through the public schools.  The courts have the power under the statute to order reimbursement.  An account of the case is in the Los Angeles Times.  [MG]

Supreme Court Action Today

The Supreme Court issued four opinions this morning.  The one making the news is the access to DNA testing.  I'll get to that one in a bit.  On to the others.  

Gross v, FBL Financial Services Inc. (08-441).  This case involves Gross's claim that he was demoted in violation of the Age Discrimination in Employment Act of 1967 (ADEA).  The trial court instructed the jury to find for Gross if he proved by a preponderance of the evidence that age was a motivating factor in his demotion.  The trial court also instructed the jury to find for FBL if it found that FBL would have demoted him anyway.  The jury found for Gross.  The Eighth Circuit reversed saying the jury was improperly instructed under the mixed-motive standard established in Price Waterhouse v. Hopkins.  The Supreme Court vacated the Eight Circuit opinion and held that the ADEA's statutory language does not allow for the burden to shift to the employer to show the action would have taken place anyway, and that the plaintiff has the burden of proving the discrimination.  The Court compared discrimination statutes and their revision history as part of the analysis.  What makes this case interesting is the Court's statements in part III suggesting that Price-Waterhouse is difficult to apply and may not be decided in the same way if it were before the Court today in the first instance.

District Attorney's Office for the Third Judicial District v. Osborne (08-6).  This is the DNA case.  Osborne was convicted of sexual assault in Alaska.  Long after conviction he filed suit to access evidence against him and subject it to DNA testing at his own expense.  There were procedural issues as to whether Osborne should proceed in habeas or whether a §1983 suit was the proper vehicle.  Ultimately, the District Court held that Osborne had a constitutional right to new testing.  The Ninth Circuit affirmed.  The Supreme Court reversed, stating simply that Osborne has no constitutional right to postconviction access to to the State's evidence for DNA testing.  The Court did not decide the procedural question as to which type of suit was the proper vehicle.

Travelers Indemnity Co. v. Bailey (08-295). This case comes out of the complicated Johns-Manville asbestos litigation.  Settlement was reached in Bankruptcy Court in 1986 that would find Travelers, as Manville's insurer, to contribute a sum to the Trust settlement of injury claims.  Traveler was sued in 26 Direct Actions alleging violations of consumer protection statutes and common law duties based on its knowledge of asbestos from its relationship with Manville.  Travelers settled but asked the Bankruptcy Court to clarify its 1986 order in that these Direct Actions were and remain prohibited.  The Court approved the settlement and entered the clarifying order.  The Second Circuit reversed.  The Supreme Court held that the finality of the 1986 Bankruptcy Court order precluded the Direct Actions.  The orders became final on direct review at the time and could not be challenged now.

Yeager v. United States (08-67).  Yeager was charged with securities fraud and wire fraud for misleading the public over the merits of a fiber-optic system.  He was also charged with insider trading for selling stock in the company related to the business, and money laundering the proceeds.  The jury at trial acquitted on the fraud counts but could not reach a verdict on the other charges.  The government recharged on those counts.  Yeager argued that this violated the Double Jeopardy Clause.  The Court held that the hung counts did not enter into a preclusion analysis on the acquittals.  [MG]

Are Lawyers Competent to Construct Keyword Searches?

I wrote a post on the Tech Law Prof Blog yesterday with the same title above that is relevant to law librarians.  It covered one of the more recent opinions in e-discovery cases where lawyers either can't agree on keyword searches or can't create relevant searches.  The bench is increasing its criticism of lawyer capability (or lack) when these situations arise.  There are certainly cases involving e-discovery that go forward without much conflict.  The parties work it out with the court.  Still, the central question remains:  Are lawyers capable of constructing keyword searches to identify electronic documents relevant to litigation?

Librarians know this problem well.  Consider a volume of electronic documents in various formats and structures, and stored in a variety of places, some more remote than others.  There are software packages out there that can minimize the problem, though these don't always make the analysis any easier.  Remember the questions from the early days of the Internet, such as will ubiquitous access make librarians obsolete?  I've never thought that myself.  There's too much disorganization out there which will never discount a librarian's experience to ferret out information.  I'm always surprised to find that I consider basic is new information to some when I teach a class on research.  To that end, would librarians and other information professionals be better suited to work with lawyers directly to manage information storage and retrieval?  We can provide the sophisticated approach that is better than the simplistic Google or legal database search that is "good enough" to find general information.  Comments are always appreciated.  The original post follows:

This issue raises its head every now and then in the context of electronic discovery.  One of the latest opinions on this comes from Magistrate Judge Andrew J. Peck in the Southern District of New York.  The case is William A. Gross. Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. Mar. 19, 2009).  It involves delays in the construction of the Bronx Criminal Court Complex.  The Dormitory Authority of the State of New York (DASNY) owns the project and agreed to produce emails from non-party Hill International, the project construction manager, as part of the discovery.  The parties could not agree on keywords for locating the relevant emails.  DASNY proposed one set of words that were specific to the project, but possibly too narrow to give comprehensive results.  The other side proposed terms that were broad, and almost generic enough to include the entire email archive.

The opinion, and others quoted in it, suggest that the problem here is more than simply a dispute between litigants.  Judge Peck thinks it may be that lawyers simply don't have a handle on what they are trying to find.  That includes more than the information in the relevant electronic archive.  The context is an archive of emails.  Searching it should take into account how individual emails were created, their purpose, how they are stored, and the form of the documents.  Practically every vendor of e-discovery systems offer contextual search using Boolean style connectors.  One would think that with some 30 or more years using a similar and  sophisticated search strategy with Westlaw and Lexis that constructing keyword searches in document sets wouldn't be that much of a problem.  Apparently it is.

Westlaw and Lexis are really misleading in this regard, and it's not their fault.  It's easy with practice and experience to extract relevant documents from Westlaw and Lexis once an individual masters the search strategy.  There is a combination of knowing the terminology of the legal subject, what kinds of documents are in an individual database, and some thought in the use of language as to how these legal concepts appear in text.  The misleading part is that these massive collections of documents have similar structure.  Cases have captions, docket numbers, counsel lists, authors, and a stylized language that uses consistent terms of art.  Statutes, law review articles,long-form commentary such as treatise, and even newspaper articles have enough of a regular structure that makes searching within them relatively easy for an experience searcher. An archive of emails or irregular documents is another matter entirely.  Westlaw and Lexis carefully run their additions through editors to eliminate misspelling's and other typographic issues.  Even then problems crop up.  Raw archives present problems with typos, short form language (LMAO anyone?), incomplete sentences and other off the cuff communication syntax.

Judge Peck bluntly lays it out:

This case is just the latest example of lawyers de-signing keyword searches in the dark, by the seat of the pants, without adequate (indeed, here, apparently without any) discussion with those who wrote the emails.

He quotes from Judge Grimm in the Victor Stanley case:

While keyword searches have long been recognized as appropriate and helpful for ESI search and retrieval, there are well-known limitations and risks associated with them, and proper selection and implementation obviously involves technical, if not scientific knowledge.

* * *

Selection of the appropriate search and information retrieval technique requires careful advance planning by persons qualified to design effective search methodology. The implementation of the methodology selected should be tested for quality assurance; and the party selecting the methodology must be prepared to explain the rationale for the method chosen to the court, demonstrate that it is appropriate for the task, and show that it was properly implemented.   Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260, 262 (D.Md. May 29, 2008) (Grimm, M.J.).

And from Judge Fasciola in the O'Keefe case:

Whether search terms or “keywords” will yield the information sought is a complicated question in-volving the interplay, at least, of the sciences of computer technology, statistics and linguistics. Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. This topic is clearly beyond the ken of a layman and requires that any such conclusion be based on evidence that, for example, meets the criteria of Rule 702 of the Federal Rules of Evidence.  United States v. O'Keefe, 537 F.Supp.2d 14, 24 (D.D.C.2008) (Facciola, M.J.).

Judge Peck suggests applying some thought to conducting searches, and that counsel cooperate.  He also suggests using sampling techniques to see what's there and then refining the search.  This is a technique that librarians and other information professionals use all the time.  Sometimes one has to get a sense of what the archive contains before constructing specialized searches within it.  That means finding out about what is being searched.  Competent information management in discovery may mean that lawyers may need to hire an expert when necessary.  Judge Peck noted that in passing through other cases he cited.  He also endorsed the principles of the Sedona Conference, available on the Internet.  Ironically, the site address in the opinion was malformed.  The correct address is http://www.thesedonaconference.org.  (Judge Peck, or at least the editors of F.R.D. used spaces to separate elements of the domain name.) 

From the site description:

The Sedona Conference® is a nonprofit, 501(c)(3) research and educational institute dedicated to the advanced study of law and policy in the areas of antitrust law, complex litigation, and intellectual property rights. Through a combination of Conferences, Working Groups, and the "magic" of dialogue, The Sedona Conference® seeks to move the law forward in a reasoned and just way. The Sedona Conference® succeeds through the generous contributions of time by its faculties and Working Group members, and is able to fund its operations primarily through the financial support of its members, conference registrants, and sponsorships. See "About Us," "Working Group Series," and "Sponsorships" for further details.

Electronic discovery and best practices associated with it are one of the areas covered in detail at the site.  Much of the information there is free with registration.  [MG]

Add OpenJurist to List of Free U.S. Case Law Websites

Well, I'm adding OpenJurist to my list -- news to me but I might be behind the curve because of the proliferation of free case law websites. OpenJurist's database currently has approximately 647,000 opinions from the United States Supreme Court beginning in 1754 when it was known as the Supreme Court of Pennsylvania and Federal Appellate Courts beginning in 1880 from the First, Second and Third series of Federal Reporter. The database is tied to a Google search engine. Hat tip to Cleveland Marshall Law Library Blog. [JH]

Supreme Court Action Today

The Supreme Court released two more opinions this morning:

Nijhawan v. Holder, Attorney General (08-495). Petitioner was convicted of mail fraud, wire fraud, bank fraud, and money laundering.  The jury did not make a finding about the amount of loss.  Petitioner stipulated that the the victim loss exceeded $100 million at time of sentencing.  The trial court imposed a sentence of 41 months in prison and restitution in the amount of $683 million.  As an alien, petitioner was subject to deportation under the immigration statute's aggravated felony definition when the fraud amounts to more than $10,000.  Lower courts have taken different approaches to interpreting the aggravated felony requirements as to whether the statute defined crimes as categorical or circumstantial.  Some courts viewed the $10,000 as an element of the crime, while others examined all the circumstances to determine whether the conviction amounted to an aggravated felony.  Justice Breyer examined comparable criminal statutes and determined that the statute is circumstantial.  The conviction was upheld.

Polar Tankers, Inc. v. City of Valdez, Alaska (08-310).  Valdez imposed a personal property tax that was tailored to apply to large oil tankers.  Petitioner Polar Tankers challenged the ordinance as violating Art I, §10, cl. 3, which forbids a state to lay a duty of tonnage without consent of Congress.  The Alaska Supreme Court upheld the tax.  The Supreme Court reversed with Justice Breyer concluding that the tax violated the Tonnage Clause.  Other Justices agreed the tax unconstitutional, but did not join completely in Justice Breyer's reasoning.  [MG]

Maybe Westlaw thinks Scalia was wrong, but…

On May 26, 2009, the United States Supreme Court decided Montejo v. Louisiana, which overruled the Court’s 1986 decision, Michigan v. Jackson, 475 U.S. 625 (1986).  To be sure, Justice Scalia in his majority opinion in Montejo stated on page 21 of the slip opinion “Michigan v. Jackson should be and now is overruled.”  Also, on May 26, 2009, my colleague, William Gaskill, planned to use Michigan v. Jackson as a Shepard’s/Keycite example in his Legal Research Bootcamp course.  He sent his class an email asking them to determine whether Michigan v. Jackson was still good law by class that evening.  I opined that students’ answers would be different depending on the time of the day they verified the case.  I was wrong.  The next morning, William had informed me that according to Keycite, Michigan v. Jackson is still good law.
 
We’ve been keeping track of the case over the past two weeks and as of today at 3:30 p.m. EST, according to Westlaw, Michigan v. Jackson is still good law.  West did enter Montejo into its system, but someone must have read over Nino’s quote or maybe they just figured the majority was wrong.  In any event, I hope for sake of criminal lawyers everywhere that this will be remedied soon.
 
By the way, West, Shepard's picked up the change in Michigan’s status.

David C. Walker, Reference Librarian, Charleston School of Law

Monday Action by the Supreme Court

The Supreme Court issued five opinions this morning.  The first is Republic of Iraq v. Beaty (07-1090).  The issue in this case is whether claims against Iraq are authorized under the Foreign Sovereign Immunities Act of 1976 (FSIA).  That act gives immunity to foreign countries in suits against them in U.S. court, with the exception of states designated as a sponsor of terrorism.  The Act allows for waivers by the President under some circumstances.  President Bush waived jurisdiction against Iraq as a result of the 2003 invasion and subsequently again in 2007 under replacement legislation.  Beaty an others sued Iraq for claims prior to the President's waiver and argued that among other points.  The Court held that the waivers effectively strip jurisdiction from the federal courts.  The decision was unanimous.

The next case is the one that gets the attention of press reports.  It is Caperton v. A.T. Massey Coal Co., Inc. (08-22).  The question is whether a West Virginia Supreme Court justice should have recused himself when a civil defendant in a case before him should have recused himself when that defendant spent $3 million dollars to support his election.  Massey lost a judgment at trial for tortious interference with a contract with a verdict of $50 million.  The chairman of Massey donated some $3 million to elect Brent Benjamin to the Court knowing that the West Virginia Supreme Court would ultimately hear the appeal.  This amount ws more than any Benjamin supporter and election committee spent on a combined basis.  Benjamin denied three separate motions for recusal with the Virginia Supreme Court ruling 3-2 to overturn the judgment.  The Supreme Court held it is a violation of due process for a judge to hear a case when he may have a personal interest in the outcome.  The Court did not say that Justice Benjamin had a bias, but that the risk of bias was enough to trigger the due process clause in this case.  The Court split 5-4 with Justice Kennedy siding with the liberal block of justices to provide the majority.

The third case is United States v. Denado (08-267).  Denado was a Nigerian national serving in the U.S. Navy.  He plead guilty to violations of the Uniform Code of Military Justice on advice of counsel with counsel's advice that the plea would not subject Denado to deportation.  After discharge, the Department of Homeland Security began proceedings to remove Denado from the U.S.  Denado filed a petition for a writ of coram nobis to the military courts to vacate his conviction on an ineffective assistance of counsel claim.  The government opposed.  The Court held that the military courts have jurisdiction to hear petitions under the All Writs Act.

The fourth case decided a procedural issue.  The case is U.S. ex rel. Eisenstein v. City of New York (08-660).  Eisenstein filed a qui tam action against New York City in the name of the United States.  The U.S. declined to intervene and the District Court dismissed the claim and appeal was taken 54 days later.  Under rule, the time for appeal is 30 days unless the government is a party, in which case the time is extended to 60 days.  The Court held that since the government declined to intervene, it was not a party.  The 30 day rule applied.

The last case is Boyle v. United States (07-1309).  Boyle and associates were convicted under RICO, among other charges, for several bank robberies crossing state lines.  Boyle requested a jury instruction that specifically required the jury to find a "structure" in the criminal enterprise.  The trial court denied the instruction.  The Court held that the there is a structural requirement for conviction, but the broad statement defining an enterprise by the RICO act does not require a specific instruction to that effect as long as there is evidence that the various associates function as a continuing unit.

In other significant action, the Court declined to hear an appeal challenging the constitutionality of the military's "don't ask don't tell" policy for gay members of the military.  The case is Pietrangelo v. Gates.  We are still waiting for word on whether the Court will hear the appeal by Indiana pensions challenging the sale of Chrysler to Fiat in current bankruptcy proceedings.  [MG]

Update:  Justice Ginsburg has stayed the sale of Chrysler "pending further order."

Suit Over Bib Sotware Dismissed

Ars Technica is reporting that Thomson Reuters lawsuit against George Mason University over Zotero has been dismissed.  Zotero is an open source alternative (implemented as a Firefox plug-in) to TR's EndNote.  The suit was based on GMUs participation in the development of Zotero when the university had a site license to EndNote.  The contract prevented reverse engineering the software and Zotero included a feature allowing it to import EndNote reference styles.  That's what prompted the suit.  Expect an appeal.  The article has links to the complaint.  [MG]

SC Supreme Court Orders Governor to Apply for Stimulus Funds

Here's a strange case coming out of the stimulus package passed by Congress.  The South Carolina Supreme Court has issued an opinion and a writ of mandamus ordering Governor Mark Sanford to apply for stimulus money.  This comes on the heels of the South Carolina legislature passing an act mandating that the Governor apply.  The legislature has the sole authority to appropriate funds, including federal funds under the South Carolina Constitution.  The case is Edwards and Williams v. State and SCASA v. Sanford (26662). The opinion is here and a news analysis is here.  Thanks to Chris Cillizza in the Washington Post for the lead.  [MG]

Editor's Note. The South Carolina Supreme Court's highly unusual action reminds me of Patti Smith's classic Punk Rock anthem "Free Money" You'll find better audio in YouTube clips of The Patti Smith Group performing the song but I selected this one because it features Patti Smith playing "Free Money" at CBGB's last show on October 15, 2006. [JH] 

Sotomayor In Action: Audio Availble in the Ricci Case

The Wall Street Journal posted the audio of the Second Circuit hearing in Ricci v. DeStefano, the New Haven firefighter case in which Judge Sotomayor presided.  There are links to download the MP3.  The Christian Science Monitor has an analysis on what is on the tape.  [MG]

Supreme Court Action from Yesterday

The Supreme Court issued two opinions yesterday.  The first is Bobby v. Bies (08-598), which decided the question of whether the Double Jeopardy Clause barred relitigation of a defendant's mental capacity.  Bies received the death penalty in an Ohio case.  His mental capacity would be a mitigating factor in his sentence but for the fact that sentence was imposed before the Court decided Atkins v. Virginia which barred the execution of mentally retarded offenders.  Bies challenged his sentence in post-conviction proceedings in federal court, with the District Court sending the case back to Ohio for further proceedings on the issue.  The Ohio court ordered a full hearing on the mental capacity issue, but Bies returned to federal court arguing that he was subject to double jeopardy by relitigating the capacity issue.  The District Court issued the habeas petition and the Sixth Circuit affirmed.  The Supreme Court reversed saying the issue here is Bies attempt to vacate his sentence and not an attempt by Ohio to retry him or increase his sentence.

The second case is CSX Transportation, Inc. v. Hensley (08-1034).  The issue concerned jury instructions in a medical case.  Hensley sued CSX alleging the railroad negligently caused him to contract asbestosis which is noncancerous scarring of lung tissue caused by long-term exposure to asbestos.  The Court had previously ruled in an earlier case that a plaintiff can recover for fear of contracting cancer in these circumstances provided he prove that his alleged fear is genuine and serious.  Hensley's case went to trial in Tennessee and CSX offered two instructions, one stating the plaintiff's burden and the other listing factors for proving his fear.  The trial court rejected these instructions and the Tennessee Court of Appeals affirmed.  The Court reversed in a per curiam opinion.

In other news, the Court announced that it will review In Re Bilski, which concerns whether software is patentable under current law.  The case will a major impact on the technology market.  Ars Technica has commentary and review of the issues here.  [MG]

Court Rules OK to Extract DNA from Arrestee Without Conviction

In a case of first impression, a federal magistrate judge in California has ruled that it is constitutional to take DNA samples from individuals at the time of arrest for a felony.  The laws in question are the Bail Reform Act, 18 U.S.C. § 3142(b) and (c)(1)(A), and DNA Fingerprinting Act of 2005, 42 U.S.C. § 14135a.  The case is U.S. v. Jerry Albert Pool, (CR S-09-0015 EJG GGH, Eastern District of California, May 27, 2009).

From the opinion:

The court holds that after a judicial or grand jury determination of probable cause has been made for felony criminal charges against a defendant, no Fourth Amendment or other Constitutional violation is caused by a universal requirement that a charged defendant undergo a “swab test,” or blood test when necessary, for the purposes of DNA analysis to be used solely for criminal law enforcement, identification purposes.

The full opinion is here, and a news analysis from the ever thoughtful Declan McCullagh at CNET News is here.  Thanks, Declan, for a link to the case.  [MG]

California Upholds Gay Marriage Ban

The California Supreme Court upheld the voter initiative on gay marriage this morning.  The Court's web site appears to be overwhelmed at this point.  I'll post a link to the opinion later on today as traffic calms down.  [MG]

Update:  The opinion is here.  Same-sex marriages performed before the ban went into effect are valid.

Supreme Court Overturns Long Time Police Interrogation Rule

Lost in the news of a new Supreme Court nominee is today's 5-4 ruling by the Court which overturns the rule that police may not initiate interrogation of a suspect unless the suspect's lawyer is present.  The case is Montejo v. Louisiana (07-1529), and it overturned Michigan v. Jackson.

Two other cases were decided today, Abuelhawa v. United States (08-192), and Haywood v. Drown (07-10374).  The former held that using a telephone to make a misdemeanor drug purchase does not facilitate felony drug distribution in violation of 21 U.S.C. 843(b), while the latter overturned a New York State law that removed prisoner suits under §1983 from the state courts and transferred them to the Court of Claims.  The Court said this violated the Supremacy Clause.  [MG]