Monday status conference: Cinco de Mayo edition

Justices from the nation’s highest court will convene in a conference on Thursday, lawmakers are busy trying to hammer out the farm bill and other matters (more on that below), and a brand-spanking new issue of Lawyers USA is out as you celebrate Cinco de Mayo today. Here are some highlights from this issue. Subscribers can click on the links for the full story.

Under the best of circumstances, divorce proceedings rarely are completely pleasant or smooth-sailing for a couple and their lawyers. But in an uncertain economy and shaky housing market, divorce is becoming increasingly complicated. More here.

Estate planning lawyers are finding that many prenuptial agreements for older couples contain costly omissions - about health care, nursing home costs and other “elder care” costs. More here.

A recent U.S. Supreme Court ruling addressing the definition of driving while intoxicated for purposes of federal sentencing is expected to have a broad impact on criminal cases, but also leaves open many questions, criminal lawyers say. More here.

Prepaid funeral plans may involve more risk than buyers realize. More here.

In other news and chatter:

Lawmakers want to hold hearings to investigate whether the practice of securities lawyers paying plaintiffs to file class action lawsuits happens at places other than Milberg Weiss. (BI)

Is the False Claims Act a legal gold rush for the tort bar? (WSJ Law Blog)

There will soon be a vacancy at the head of the Justice Department’s Criminal Division - giving Attorney General Michael Mukasey the opportunity to make a key appointment. (WaPo)

Many case-strapped states are releasing prisoners early in order to ease their budgets. (WaPo)

Lawmakers are working to come up with a veto-proof farm bill plan. (AP)

The IRS and FBI are investigating whether mortgage lenders ignored the signs that some borrowers were getting into subprime deals that would eventually overwhelm them - and the credit industry. (NYT)

Monday status conference: The Supremes, one week only

This week, the Supreme Court will hear the last oral arguments of this term. See this post for more details. Updates on newsworthy decisions, orders or other news can be found here this afternoon.

In the meantime, here’s a peek at some of the stories in this week’s issue of Lawyers USA. Subscribers can click the links following each item to see the whole story:

A Colorado dairy and five of the nation’s biggest retailers have been hit with lawsuits alleging they mislabeled milk as organic so they could charge customers higher prices. The milk fight is being closely watched in the organic food industry as a harbinger of potentially costly legal battles for the hearts and wallets of organic food shoppers. More here.

As a wide-ranging debate about immigration policy continues to rage in the U.S., new data from the EEOC suggest that complaints against employers over “English Only” workplace policies may be on the upswing. More here.

Some lawyers don’t just take work on vacation - they take their colleagues too. Here’s the story of one firm whose partners vacationed together with their families, often going to exotic parts of the world, partly for the pure fun of it and partly as a way to develop a deeper relationship as business partners. More here.

Meanwhile, in other legal news from inside the Beltway:

The patent bill appears to be all but dead. (WSJ)

Lobbyists are finding ways to get around the new ethics law. (NYT)

While Congress continues to debate a permanent measure, President Bush signed a one-week extension of current farm law. (AP)

The Justice Department is taking heat for strategy that may prevent attacks but rarely brings convictions. (WaPo)

Friday morning docket: the ‘Dream’ edition

As the nation, including Congress, reflects on the legacy of Dr. Martin Luther King, who was assassinated hours after giving his groundbreaking “I Have a Dream” “I’ve Been to the Mountain Top” speech 40 years ago today, here is a look at legal news inside the Beltway and beyond:

Republicans and business-friendly Democrats on Thursday scuttled a plan to give people threatened with losing their homes more leverage in winning favorable loan terms from their lenders in bankruptcy courts. (AP) Meanwhile, the Senate also dropped an amendment to a housing market rescue bill that would have given bankruptcy judges the power to ease mortgage payment terms for some distressed borrowers. (Reuters).

Supreme Court Justice Anthony M. Kennedy on Thursday turned aside a plea by California officials, and cleared the way for the release of a state prison inmate who was convicted of a 1982 murder in Los Angeles. (SCOTUSBlog)

Philip Morris USA and other cigarette makers won a decision blocking an $800 billion racketeering class-action lawsuit filed on behalf of smokers of “light” cigarettes in the U.S. (Bloomberg)

Senate Judiciary Committee Republicans launched an attack Thursday against the slow pace of approving appellate court nominations, warning that they were contemplating more drastic measures, including a possible chamber shutdown. (CQ Politics)

The Senate will take up the Patent Reform Act as early as next week. The bill will arrive on the heels of a court decision this week that struck down new rules the US Patent and Trademark Office proposed to cope with a historic flood of patent applications. (EE Times)

The Justice Department’s inspector general is investigating whether a career attorney in the department was dismissed from her job because of rumors that she is a lesbian. (NPR)

Mukasey’s high court argument

Justice Antonin Scalia is not one to go easy on the lawyers arguing before the Supreme Court - even when said lawyer heads the Justice Department.

When Attorney General Michael Mukasey stood at the podium today urging the Court to hold that, under a statute boosting the penalty for a felony when the perpetrator carries explosives, the explosive need not involve the underlying felony, Scalia did not disguise his skepticism.

“General,” Scalia said, addressing a sitting attorney general arguing in the Court for the first time in 12 years, “could Congress pass a law that said if you wear a wristwatch during the commission of any crime, you get another 10 years?”

Mukasey paused, and then answered: “A statute like that would be entirely unreasonable. It was not entirely unreasonable for Congress to have said if you carry an explosive during the commission of a felony, you’ve added something enormously volatile.”

“Surely it depends on what the felony is,” Scalia said. “If the felony is the filing of a dishonest tax return and you have a can of gasoline with you when you mail the letter, it seems to me quite as absurd as saying wearing a wristwatch in the course of a felony. That’s what troubles me about this.”

Scalia pointed out that carrying explosives in itself could be a wholly legal activity, but add a felony like tax evasion, and it could earn a defendant an extra decade in prison.

“I guess [‘explosives'] would include having some cartridges, explosive cartridges?” Scalia asked

“It would,” Mukasey replied.

“That’s perfectly lawful, and you get another 10 years for it just because you’re mailing a letter to the IRS at the same time?” Scalia pressed.

“It is perfectly lawful,” Mukasey repeated, adding later: “We concede that it was a very broad statute. But that was Congress’s choice. And if Congress chooses to amend the statute, respectfully, it ought to be Congress that amends it.”

Mukasey told reporters earlier in the week that he jumped at the chance to argue before the Court, something no sitting attorney general has done since Janet Reno in 1996.

But the novelty perhaps wore off quickly today for Mukasey who, midway through his alloted time, asked the justices if they had more questions and then took a seat, using only 16 minutes of his half-hour allotment.

The case was U.S. v. Ressam, involving the so-called “millenium bomber.”

Silence speaks volumes

When it comes to arguing before the Supreme Court, the Justice Department seems to abide by the adage “quit while you’re ahead.”

Today Nicole Saharsky, assistant to the solicitor general who argued the government’s case in Burgess v. U.S. did just that when she used only about six minutes of her allotted half hour for oral argument.

That six minutes included a few silent pauses Saharsky took to allow the justices to jump in with questions. But the Court had few questions for Saharsky, who argued that the government properly applied a statute boosting the minimum sentence in federal drug cases where a defendant was previously convicted of a “felony drug offense.” The defendant in this case appealed the law’s application because his previous conviction was characterized by the state as a misdemeanor, even though it carried a sentence of up to two years’ imprisonment. The federal sentence-boosting statute defined a “felony drug offense” as an offense which carries a sentence of more than one year.

Although the brief for the defendant - who filed a pro se petition for certiorari - was co-authored by heavyweights like Harvard’s Lawrence Tribe, Supreme Court guru and SCOTUSBlog author Thomas C. Goldstein and leading Supreme Court litigator and Stanford Law professor Jeffrey L. Fisher, who argued today on Burgess’ behalf, the government seemed to be on the winning side of the argument, from the Court’s questioning.

Most vocal during the argument of Fisher - who used his full allotted time plus four minutes of rebuttal - were Chief Justice John G. Roberts and Justice Antonin Scalia, who often prefaced his questions with a disbelieving head shake and used words like “extraordinary” and “My goodness!”

More on arguments in the case tomorrow on the Lawyers USA website (which is newly revamped: check it out!)

D.C. v. Heller: “As the Bush Administration Turns”

There is apparently more drama behind the scenes of the Supreme Court case considering the constitutionality of Washington, D.C.’s gun ban than in a daytime soap opera. Now comes word of conflict within the Justice Department over the case, and claims that both Attorney General Michael Mukasey and the White House were surprisingly out of the loop.

But before we get to the latest episode of this serial, let us recap:

- We knew that the Supreme Court agreed to consider whether the Court of Appeals was right in striking down Washington’s handgun ban as unconstitutional under the Second Amendment in D.C. v. Heller.

- We knew that, just weeks after the Court granted cert, the District’s legal department had a little shakeup, with Attorney General Linda Singer (left) resigning after clashing with Peter Nickles, general counsel of Washington Mayor Adrian Fenty. We also knew Nichols fired the attorney on the case, Supreme Court advocate Alan B. Morrison (who was hired by Singer), replacing him with Walter Dellinger.

- We also knew that Solicitor General Paul Clement took a less-than-hard-line stance on the case on the government’s behalf, arguing that the case should be remanded back to the appeals court for clarification, lest federal gun control efforts be put in peril by a potential Supreme Court affirmation. The move surprised some, given President George W. Bush’s strong support for the right to keep and bear firearms.

- We knew that, in another things-aren’t-as-they-seem moment, the majority of both houses of the Democrat-controlled Congress filed a brief urging the Court to affirm the Court of Appeals’ ruling and hold that the Second Amendment prohibits the gun ban.

- Finally, we knew that Vice President Dick Cheney signed onto that brief, in his capacity as President of the Senate, and thus went against the administration’s stance.

Got all that? Good.

Now today, Robert Novak writes that Clement’s brief was the result of an internal Justice Department clash, claiming the attorneys in the Justice Department’s Criminal Division oppose the individual gun right argument, while the Office of Legal Counsel is firmly for the right to bear arms.

What’s more, Novak claims that the White House was completely blindsided by Clement’s position, and that Attorney General Michael Mukasey was unaware of the battle raging between the Criminal Division and the OLC under his command.

It is worth noting that Georgetown professor Marty Lederman, a former attorney advisor at OLC, is quite skeptical of Novak’s claims. In a post on SCOTUSBlog, Lederman said: “No doubt the White House (or certain components in it) now wishes to wash its hands of any responsibility for the DOJ filing - hence the leaks to Novak. But the story they’re shopping doesn’t make sense.”

Mukasey goes to the Supremes, while Alito takes his time

Move over, Paul Clement.

The job of arguing before the Supreme Court on the government’s behalf is usually reserved for the solicitor general (or one of his deputies). But in a case to be argued later this month, his boss, Attorney General Michael Mukasey, will be the one standing at the podium making the government’s case to the justices, the Associated Press reports.

It will be the first time in more than a decade that an attorney general argues before the Supreme Court. Janet Reno last did it in 1996.

Mukasey will urge the high court to rule that 18 U.S.C. Section 844(h)(2), which prohibits carrying explosives “during the commission of any felony” applies even when the underlying felony was not related to the explosive. The government seeks to reinstate the. conviction of would-be millennium bomber Ahmed Ressam on the count, even though Ressam’s underlying conviction involved lying to a customs agent.

The case is United States v. Ressam, and will be argued Tuesday, March 25.

Meanwhile, will next week bring Justice Samuel Alito’s first opinion of the term?

The most-junior justice is the only one who has yet to author an opinion during this term, which began in October. Each of the other eight justices have written at least two opinions this term.

While it is not uncommon for newer justice to take a bit more time to finalize an opinion, the Associated Press piece correctly points out that Alito could simply be waiting for the dissenters to put their two cents in before his first decision is released.

Ashcroft testifies about lucrative white-collar law firm deals

John Ashcroft is back in the Capitol today.

The former Attorney General is testifying today before the House Subcommittee on Commercial and Administrative Law hearing on “Deferred Prosecution: Should Corporate Settlement Agreements Be Without Guidelines?” Ashcroft is set to address lucrative agreements between federal prosecutors and hand-selected law firms to monitor corporations accused of wrongdoing.

His testimony comes a day after the Department of Justice released new guidelines for the use of the so-called ‘deferred prosecution agreements’ in white-collar cases. The White Collar Crime Prof blog has the DOJ memorandum announcing the guidelines.

Historic Congressional lawsuit

While the rest of the country watched the news about a certain lawyer who allegedly did certain things in a certain Washington, DC hotel room, a panel of House lawmakers filed a lawsuit in an effort to force White House chief is staff Joshua Bolten and former White House Counsel Harriet Miers to talk about their role in the firings of nine U.S. attorneys in 2006.

In case you missed it, yesterday’s move by the House Judiciary Committee was historic - it marked the first time the House or Senate sued members of the Executive Branch.

The more came after the House voted contempt charges against Bolten and Miers, but Attorney General Michael Mukasey refused to refer the matter to a federal grand jury.

After the filing, committee chairman Rep. John Conyers, Jr., said in a statement: “We will not allow the administration to steamroll Congress. The administration’s extreme claims to be immune from the oversight process are at odds with our constitutional principles on which this country was founded, and I am confident the federal courts will agree.”

The White House has maintained that Bolten and Miers are shielded by executive privilege.

End to DOJ nominee stalemate?

Could an end to the stalemate between President Bush and Congress over Justice Department appointees be near?

That’s what some folks are saying after yesterday’s confirmation of Chicago federal judge Mark R. Filip as Attorney General Michael Mukasey’s second-in-command at the DoJ.

Apparently the confirmation of Filip - whose nomination had once been put on hold by Sen. Dick Durbin over Mukasey’s refusal to label waterboarding as torture - came after White House Chief of Staff Josh Bolten had a chat with Senate Majority Leader Harry Reid, a Senate aide told the Associated Press on the condition of anonymity.

White House spokeswoman Emily Lawrimore said the two sides reached an understanding to work on a procedural change that might clear the way for stalled nominations.

“We look forward to working constructively with the Senate majority leader to ensure that all Republican and Democratic nominees receive fair consideration and swift confirmation,” she said.

Several Justice posts have remained vacant since former Attorney General Alberto Gonzales resigned amid controversy over nine fired U.S. attorneys.