November 11, 2006
Democracts to re-examine Military Commissions Act? So speculates this article, posted by Howard Bashman.
Scalia on Literalism and Originalism. He gave a speech that you can read about here.
Voters React to Kelo. As noted below, there were a number of referenda on ballots this election to limit the impact of Kelo. You can read about them here.
November 10, 2006
Interesting Reciprocal Discipline Interpretation Case
"We hold that neither the Massachusetts Board of Bar Overseers nor the Attorney Grievance Commission of Maryland is a "disciplining court" under D.C. Bar Rule XI, § 11(a) (2006); and that before reciprocal discipline may be imposed by this court for professional misconduct in another jurisdiction, an attorney admitted to practice in this jurisdiction must have been disciplined by a disciplining court outside the District, or by another court in the District." So concludes an interesting decision of the District of Columbia Court of Appeals in In re Greenspan, ___ A.2d __, 2006 WL 3227786 (D.C. App. Nov. 9, 2006). The bar rule at issue only authorized reciprocal discipline where discipline had been ordered by a "disciplining court" and the systems in Massachusetts and Maryland did not require discipline by courts. It's an interesting read, with a dissent.
The bar rule at issue provided that reciprocal discipline could be imposed only if discipline had been ordered in the foreign jurisdiction by an entity identified in D.C. Bar R. XI, § 11, as a "disciplining court." Section 11(a) defined "disciplining court" as "[ (1) ] any court of the United States as defined in [28 USC 451]  the highest court of any state, territory, or possession of the United States, and [ (3) ] any other agency or tribunal with authority to disbar or suspend an attorney from the practice of law in any state, territory, or possession of the United States."
The problem was that in the cases under review, DC lawyers had been disciplined by a board of overseers, in Maine, and by the Maryland Attorney Grievance Commission. The highest courts in those states had delegated power to discipline to these other entities.
Even so, the majority held that they were not "disciplining courts." Recognizing that they were not within the first prong, and focusing on the second two alternative definitions, the majority held that the bar entities were clearly not within the second prong, as they were not "highest courts," and held that they were not within the third prong, as those had historically been interpreted as limited to "agencies or tribunals with powers identical to those in the second prong," and so were not covered since they, themselves, did not have authority to disbar or suspend an attorney from practice. Despite concluding the language was unambiguous, the majority also reviewed the drafting history of the rule, but found nothing inconsistent with its construction.
The dissent made some interesting comments: "These cases come to us in an odd posture and are being decided by the majority through the application of principles of statutory interpretation that are primarily designed to defer to another branch of government, with little regard to purpose or overall context, notwithstanding that what is presented for interpretation is a rule fashioned by this court in the highly interrelated context of reciprocal discipline. In my opinion, the reflexive application of "plain meaning" interpretation to our rule unnecessarily yields a result at odds with the system of reciprocal discipline."
November 8, 2006
Federal Rules of Evidence & Erie
Suppose evidence is inadmissible under state law, but admissible under the FREs, and the case is being tried in diversity. For the Tenth Circuit's answer in Sims v. Great American Life Ins. Co. (Nov. 06 2006), check here.
November 7, 2006
Follow Up: Oral Argument on Accrual in False Arrest Cases
The AP reports here that Justice Roberts during oral argument suggested that "the deadline serves several interests, including peace of mind of the police officers who otherwise would not know for years if they would be sued." Perhaps, but that approach either kisses false arrest goodbye, or guarantees many more suits will be filed while the criminal process is on-going.
November 5, 2006
Oral Arguments in Abortion Cases: Wednesday
Oral Argument in cases involving the constitutionality of abortion statutes is set for Wednesday in the Supreme Court. It will be an interesting day, as this article in the Washington Post points out.