Friday morning docket: Scalia speaks!

With oral arguments behind them, it’s crunch time for the justices of the Supreme Court, who still have many cases to decide before the term ends. They meet in conference today. And DC Dicta was remiss not to mention Justice John Paul Stevens’s birthday in last week’s docket. Stevens turned the spry young age of 88 last weekend. Only Justice Oliver Wendell Holmes graced the bench at an older age - he served until he was 90.

Meanwhile:

Are you still sore about the Supreme Court’s role in the 2000 presidential election? Justice Antonin Scalia has a message for you: “Get over it. It’s so old by now.” You can see his full “60 Minutes” interview with Lesley Stahl this Sunday, but here’s a preview:

The very last oral argument case this term involved the question of what happens in an age discrimination claim when the evidence offered by the employer and employee results in a tie for the factfinder. Well, it looks like the recusal of Justice Stephen Breyer could mean the Court itself could end up in a tie. (ABA Journal)

An invitation to Justice Clarence Thomas to speak at the commencement ceremony at the University of Georgia has sparked controversy. Some students and faculty called the invitation inappropriate given recent problems with claims of sexual harassment as the school. But the school’s president stands by his choice and the Atlanta Journal Constitution agrees. (U.S. News; AJC)

President Bush is less than thrilled with Democratic lawmakers’ housing relief plans. (AP)

The government’s plan to crack down on illegal workers could cost employers more than $1 billion a year and legal workers billions in lost wages, a study commissioned by the U.S. Chamber of Commerce says. (AP)

Attorney Scalia, for the defense

Los Angeles attorney Marilyn Burkhardt seemed to have a tough task this morning: convincing the justices of the Supreme Court that a defendant in a murder trial should be able to exclude the testimony of the victim because she is unavailable for cross examination, so long as he didn’t kill her for the purpose of making her unavailable for trial.

But she had a valuable asset during oral arguments in Giles v. California: Justice Antonin Scalia, who jumped to her aid several times - even answering questions posed by the other justices for Burkhardt.

At one point Justice Anthony Kennedy was trying to determine what prosecution sought to prove by introducing the victim statements at issue - statements that the she had been choked, munched and threatened by the defendant.

“[It seems] to me that this is responsive to his defense” of self defense, Kennedy said. “And you say: ‘well, it’s his state of mind, and her testimony was general.’ I think it does go to his state of mind.”

Before Burkhardt could respond, Scalia did.

“I’m not following you,” Scalia said. “Is there — is there an exception to the hearsay rule so long as the hearsay is brought in, in rebuttal? Is there a rebuttal exception to the hearsay rule?”

Later, when Justice Stephen Breyer was in the middle of posing of a detailed hypothetical, Scalia chimed in again, poking fun of Breyer’s previous position of Harvard Law School professor.

“He is thinking about Cambridge - and not England,” Scalia quipped, drawing laughter before Breyer continued with his question.

Breyer ended his hypothetical by asking Burkhardt: “So now are we supposed to incorporate all of these things into the Confrontation Clause?”

“Do any of them have anything to do with the Confrontation Clause?” Scalia answered back, leaving Burkhardt to answer simply: “No.”

[Much more after the jump]

Tax day at the Supreme Court

The fact that today is April 15 was not lost on the U.S. Supreme Court this morning.

“Remarkably enough, we have two tax cases to announce today,” said Chief Justice John Roberts, Jr. at the beginning of today’s session, drawing laughs from the audience.

In the first case, authored by Justice Samuel Alito, a unanimous Court threw out a state court ruling that allowed Illinois to tax a portion of Ohio-based MeadWestvaco Corp.’s capital gains from the 1994 sale of Lexis/Nexis. More on that case, MeadWestvaco v. Illinois Department of Revenue, No. 06-1413, here from CNNMoney.

In another case, penned by Roberts, the Court limited to three years the time frame that coal mining units of TECO Energy Inc. can get tax refunds in their dispute with the federal government over coal export tax payments. More here from the Wall Street Journal on U.S. v. Clintwood Elkhorn Mining Co., No. 07-308

Subprime mess good - for securities attorneys

Times are tough for a lot of industries. But the mortgage meltdown has been a boon for some folks, namely securities attorneys.

The number of subprime-related lawsuits is soaring, says the newly-released PricewaterhouseCoopers 2007 Securities Litigation Study. (National Law Journal via ABA Journal).

Last year, 37 subprime-related class action suits were filed, up from 23 the year before.

The increase has been driven mainly by three areas: three industries were the biggest targets: technology companies, which accounted for 25 percent of securities cases; banking and financial services with 21 percent; and pharmaceutical companies with 13 percent, the article stated.

Lawyers USA did a story looking at the business being driven to securities attorneys in the wake of the housing bust. (Subscribers can read it here). Many firms now have practice groups focused solely on subprime related legal matters.

Texas over Bush, 6-3; Red Sox over A’s, 6-5

In a battle between President George W. Bush and his home state of Texas, waged before the Supreme Court, President Bush lost today.

In a 6-3 decision authored by Bush-appointed Chief Justice John G. Roberts, Jr., the Court ruled in Medellin v. Texas that the President did not have to power to unilaterally order a Texas court to comply with a ruling by the World Court. Bush had made the request in an effort to get a sentencing rehearing for a death row inmate, but Chief Justice Roberts said that the Executive Branch is not vested with the power to do so.

“The executive’s narrow and strictly limited authority to settle international claims disputes pursuant to an executive agreement cannot stretch so far as to support the current presidential memorandum,” Roberts wrote in the opinion. The opinion is here, and more on the case can be found here on CNN.

The Court also ruled that parties cannot negotiate broader judicial review of arbitration agreements than provided under the Federal Arbitration Act in Hall Street Associates v. Mattel. That opinion is here.

In completely unrelated news, the Red Sox won the MLB season opener in Japan - a home crowd for pitcher Daisuke “Dice-K” Matsuzaka. (The start of baseball season is not legal news, but it makes DC Dicta immensely happy).

Paper tug of war between Congress, EPA

The Environmental Protection Agency, which has been under fire by members of Congress pushing the agency to release documents supporting its decision to deny California’s request to implement tougher greenhouse gas emission standards, is pushing back with a document request of its own.

In a letter to congress last week, EPA Associate Administrator Christopher Bliley asked for transcripts of closed-door interviews with seven EPA officials regarding the agency’s efforts to regulate carbon dioxide emissions - an unusual move for an Executive Branch agency under fire by Congress.

Friday, the same day Rep. Henry Waxman, D-Calif. sent a subpoena to the agency seeking almost 200 documents, Bliley wrote Waxman a letter asking for the transcripts.

The angency “has an interest in ensuring that the information provided … by agency employees in their official capacity is accurate and complete,” Bliley wrote.

Kennedy: Congress should act after Medtronic

Could a congressional response to today’s decision in Riegel v. Medtronic be on the way?

Massachusetts Sen. Edward M. Kennedy, who chairs the Senate Health, Education, Labor and Pensions Committee, hinted at that today in his statement in response to the case.

“In enacting legislation on medical devices, Congress never intended that FDA approval would give blanket immunity to manufacturers from liability for injuries caused by faulty devices,” Kennedy said. “Congress obviously needs to correct the court’s decision. Otherwise, FDA approval will become a green light for shoddy practices by manufacturers.”

Last year, just days after the U.S. Supreme Court handed down its decision in Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162, declining to restart the statute each time a paycheck reflecting the alleged unequal pay is issued, Kennedy and a host of other sponsors including Sen. Hillary Clinton filed a bill seeking to overturn the decision. The legislation would give employees 180 days after the date of the last affected paycheck to file a claim.

Drama during House contempt vote

The House voted to hold former White House counsel Harriet Miers and chief of staff Josh Bolton in contempt of Congress, citing their refusal to turn over documents relating to the inquiry over possible political motivations for the firing of nine U.S. attorneys under Attorney General Alberto Gonzales’s Justice Department tenure.

But before the vote, a group of GOP lawmakers walked out in protest, saying that the time would be better spent working on the surveillance bill than voting on contempt charges for the Bush confidantes, according to the Associated Press.

In the first full-chamber House contempt vote in 25 years, the representatives voted 223-32 to hold Bolton and Miers in contempt. The White House has said that it would not direct the justice department to pursue the Congressional contempt citation.

Monday status conference: election gets local

Good morning. The justices of the Supreme Court return from their recess on Friday, when they are scheduled to conference in advance of next week’s resumption of oral arguments. Expect some new decisions to be on the way as well.

In Congress, lawmakers could unveil the much-anticipated energy bill this week. (Reuters)

Meanwhile, whether you call it the Potomac Primary or the Chesapeake Primary, the presidential hopefuls are on the stump all over the greater DC area in anticipation for tomorrow’s election. (WaPo)

Here’s a look at what’s in this week’s issue of Lawyers USA. (Subscribers can click the link for the full story).

A ruling by the National Labor Relations Board late last year makes clear that employers can ban union solicitations on their e-mail systems. Management attorneys say that the ruling isn’t surprising because employers generally maintain control over their company e-mail systems. But union advocates complain that the decision makes employers’ property rights paramount, to the detriment of employees’ right to communicate about union-related matters. More here.

Courts in Oregon and California have reached dramatically different conclusions in reviewing punitive damage awards in two tobacco cases. Both suits involved individual plaintiffs who sued Philip Morris for negligence and fraud associated with decades of covering up the harmful effects of smoking. In California, a jury had awarded the plaintiff $28 billion in punitives; in Oregon, the jury awarded almost $80 million.
The Oregon case, Williams v. Philip Morris, was eventually argued before the U.S. Supreme Court, which vacated the punitive award and remanded the case for reconsideration. More here.

In a move designed to aggregate for the first time information on national bankruptcy filings, as well as detect and stamp out fraud, the government wants to require debtors to use special data-encrypted “smart” forms from which filers’ financial information can be quickly obtained. But some attorneys, fearing that invisible financial data in the forms can be easily accessed by third parties, say the move could leave their clients’ privacy unprotected. More here.

As a federal court in Washington, D.C. continues the lengthy process of determining whether a link exists between childhood vaccines and autism, other developments are casting doubt on the likelihood of a connection. More here.

SEC member: Stoneridge protects investors from fraud and lawyers

In today’s Wall Street Journal op-ed page, SEC Commissioner Paul Atkins (no relation to DC Dicta) said that the Stoneridge decision was not anti-investor. Contrarily, he said, Stoneridge protects investors from the real enemy: trial attorneys.

“Is this proof that the court is insensitive to victimized investors? Hardly,” Atkins wrote. “It is the mark of a court that insists on predictability and the rule of law — principles that are fundamental to the protection of investors and success of their investments. Although some have called Stoneridge ‘anti-investor,’ the Supreme Court’s decision actually protects shareholders from creative and unpredictable new ways to extract large settlements, which always include an ample portion for the lawyers.”

He also said investors should not fret over the fact that they can’t sue third party actors under federal securities laws in situations like Stoneridge and Enron. The SEC, he said, has their backs.

“The SEC has tremendous leverage to obtain settlements and assert novel bases of liability in court. But the SEC must resist efforts — internal or external — to broaden securities laws beyond their existing boundaries, even when those efforts are driven by a desire to see harmed shareholders recompensed,” Atkins wrote. “By respecting legal boundaries and not ‘pushing the envelope,’ the SEC provides predictability to investors, individuals and companies as to unacceptable conduct.”

Atkins must of been on the losing side of the SEC’s 3-2 vote back in June to ask the Justice Department to support the investors in the case. After urging from the White House, Solicitor General Paul Clement instead filed a brief supportig the companies.

HT: WSJ Law Blog