And the winner is…

October 31, 2008

We finally know who is arguing Carcieri v. Kempthorne before the Supreme Court Monday: Ted Olson.

Although 53 percent of DC Dicta readers thought that Joseph S. Larisa Jr., the attorney who has argued the case in the lower court, should argue the Indian land case according to our extremely unscientific poll, the Supreme Court veteran won out.

The squabble over who would argue the case, explained here in an earlier post, literally came down to the final hour. Supreme Court Clerk William K. Suter called the lawyers at 11 a.m. today and gave them a choice: either decide who is arguing or forfeit oral argument, SCOTUSBlog reports. Larisa agreed to allow Olson the honors in exchange for being seated as co-counsel at the table with Olson. And hus ended what The Wall Street Journal‘s Law Blog dubbed “The Great High Court Showdown of 2008.”


Friday morning docket: Boo!

October 31, 2008

As you stock up on candy are prepare to dress your little ghouls for tricks or treats tonight, here’s a look at the legal news:

W’s preemption priorities: Just days before the U.S. Supreme Court takes up a highly-anticipated case on FDA- preemption of state court actions, a congressional report shows that scientists and career staffers at the agency objected to the preemption policies implemented under President George W. Bush. More here from Lawyers USA.

What timing: But a former FDA chief counsel is criticizing the timing of the report, saying it was purposely released now “to sway the Court in Wyeth v. Levine.” On Monday the Court hears oral arguments in the Wyeth case.  More here from The American Lawyer.

Oh, #@&%! On Tuesday, will the language during oral arguments at the Court include enough swear words to make a middle-schooler giggle? And will those words be included in a audio recording made available to the media? The Chief Justice will decide. More here from SCOTUSBlog.

What a concept: In a decision that could reshape the way banks and high-tech firms protect their intellectual property, a federal appeals court ruled Thursday that a man’s business concept was too vague for patent protection. More here from AP via The New York Times.

Last one out, turn off the regulations: The White House is working on a host of deregulation plans before President Bush leaves office. The rules weaken government rules aimed at protecting consumers and the environment, and would be hard for his predecessor to undo. More here from The Washington Post.

Painful tendon-cies: So far, more than 40 suits have been filed nationwide against Johnson & Johnson and a subsidiary, Ortho-McNeil Pharmaceutical, blaming their popular antibiotic Levaquin for tendon ruptures. The suits are the first of what plaintiffs’ lawyers in court documents say could be between 200 to 500 tendon rupture cases. More here from Lawyers USA.

NYT prints correction after misspelling justice’s name for 28 years

October 30, 2008

In one of the most interesting corrections DC Dicta has seen in quite some time, The New York Times today published a note acknowledging that a story in yesterday’s paper misspelled the name of Supreme Court Justice Ruth Bader Ginsburg. The item notes that the justice’s name is Ginsburg, not Ginsberg.

But the correction goes on to give a startling admission: this has happened before. Many times. But only today has it become news that’s fit to print.

“The Times has misspelled her name at least two dozen times since 1980; this is the first correction the paper has published,” the note states.

Better late than never!

[HT to How Appealing]

Chamber: trial lawyers’ weeds choke Congress

October 30, 2008

There is little love lost between the U.S. Chamber of Commerce and plaintiffs’ attorneys, and that was evidenced yesterday at the annual summit of the Chamber’s Institute for Legal Reform.

Attendees of the summit’s received a handout depicting the Capitol building being strangled by the vines of what the Chamber called “trial lawyer earmarks.”

During one panel discussion, ILR’s president Lisa Rickard said the trial plaintiffs bar has launched a “stealth campaign,” inserting language in host of bills with an aim of expanding causes of action, fighting mandatory arbitration laws, and seeking tax breaks for lawsuits.

To illustrate the point, the group launched a website featuring an interactive version of the handout given to attendees.

Rickard said the measures are called earmarks because they are not stand-alone bills, but rather amendments tacked on to other measures. “Our problem here is that this isn’t just a fight in the Judiciary Committee,” Rickard said. “It is in everything.”

Meanwhile, trial lawyer group the American Association for Justice was launching its own offensive against the Chamber. AAJ CEO Jon Haber blasted Chamber President and CEO Tom Donohue for bragging to summit attendees about the number of lawsuits the Chamber files each year on its own behalf while condemning other lawsuits as “frivolous.”

“U.S. Chamber obviously believes big corporations should have access to the legal system, but leave everyone else out to dry,” Haber said.  “For U.S. Chamber and big corporations, it’s one rule for us and one rule for the rest of America.”

A positive moment at a beleaguered department

October 30, 2008

It’s been a tough couple of years at the Department of Justice. It has seen a seemingly endless stream of news headlines about politicized hiring and firing practices, congressional probes, even the resignation of the last attorney general amid scandal.

Yesterday, Attorney General Michael Mukasey used the occasion of honoring the extraordinary work of some DOJ staffers to make a point: the department’s controversies belie the true nature of the place and its employees.

“Over the last few years, this Department has endured its share of critical attention,” Mukasey said yesterday on the stage of DAR Constitution Hall, where he kicked off the Attorney General’s Awards Ceremony. “As a result, I have been asked many times about morale at the Department and about how we were going to restore the public’s confidence in DOJ. My answer has never wavered: to a person, the men and women who were here when I arrived have worked hard to help me succeed and have kept doing their jobs on behalf of the American people.”

Mukasey praised the people in his department, saying “the dedication and excellence of the people of this Department have not wavered in the face of public controversy is a powerful testament to how seriously you take the oath of office you have sworn.”

Mukasey added that the workers’ dedication is often overlooked by lawmakers and the press. “I wish I could simply hand today’s program to the press or to the Congress and ask them to read it,” he said. “I wish the newspapers would reprint it so that the American people could read about the extraordinary work we do on their behalf. … If the American people could see today’s program, I am certain that we would no longer have to field questions about our morale or whether people can have confidence in what we do.”

Supreme reconsideration

October 29, 2008

Remember how the Supreme Court justices limited the question presented in a case about how to split up pension benefits in a divorce, only to completely second-guess themselves during oral argument?

Lawyers USA wrote about oral arguments in Kennedy v. DuPont Savings Plan Administrator earlier this month (sub. req’d). During arguments, the justices openly questioned whether they should change their minds about limiting the question in the case to whether a qualified domestic relations order is required to divest a spouse of pension benefits. And they spent a lot of time asking questions about what rule should govern the decision about who gets the benefits if the QDRO is not required.

“I’m sorry we limited” the question, said Justice Stephen Breyer one point. “I’m tempted to try to decide it.”

Well, the Court is going to do just that. Yesterday the Court ordered the parties in the case the brief the issue of whether the the “plan documents rule” should govern the determination. In that case, the beneficiary card of the pension would dictate where the funds go. If not, the divorce decree, in which the ex-spouse in the case divested her rights to the pension fund, would govern.

Parties and amici have until Nov. 10 to file the supplemental briefs. More here from SCOTUSBlog and here from Lawyers USA.

The hand that rocks the voting booths rules the courts

October 29, 2008

As DC Dicta has noted, President George W. Bush is very proud of the federal judges he’s appointed over the last eight years, and hopes those jurists help to shape his legacy.

Right now, conservative justices hold a majority in 10 of the 13 federal circuits, “while judges appointed by Democrats have a dwindling majority on just one circuit,” notes a piece in today’s New York Times.

What’s more, even though Bush appointed 61 judges to President Bill Clinton’s 65, Bush’s nominees are so young that they will affect the shape of the judiciary for many years to come. Even the nation’s Chief Justice was the youngest appointed in more than 200 years.

So what does all that mean for the election? It raises a new stake: A McCain victory will give that administration a chance to shore up conservative control of federal courts, even ensuring a majority in all 13 circuits. An Obama win would allow Democrats to try to roll back the GOP advantage in the courts. Obama could could even appoint enough judges to regain a majority by the end of his first term, the story says.