Friday, September 12, 2008

blogs, legal research, and the Court

The Wall Street Journal blog reports that the United States Supreme Court may revisit its June 2008 decision overturning Louisiana's death penalty for convicted child rapists. One of the arguments relied upon by the five-vote majority in Kennedy v. Louisiana was that neither the federal government nor most states permit capital punishment in such cases. Shortly after the opinion was handed down, however, a Marine Corps colonel who blogs on military justice noted that a 2006 amendment to the Uniform Code of Military Justice in fact expressly permits such punishment. Apparently, none of those involved with researching, briefing, or deciding the case had uncovered that law.

According to WSJ and Scotusblog, the Court has ordered attorneys for Kennedy, the State of Louisiana, and the Justice Department to file briefs by September 17 addressing the relevance of that military statute and the need for a rehearing. Kennedy and Louisiana are permitted up to 4,500 words in their briefs, and the Justice Department has been given a limit of 2,500 words. Under Supreme Court Rule 33.1(g), the normal word-limit on a petition for rehearing is 3,000 words, but the Court may increase that limit "for good cause." (In contrast, note that a brief on the merits is normally entitled to 15,000 words.) Anyone want to take a guess on how many times the rehearing briefs will be revised, edited, and proofread?


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