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Tuesday, December 21, 2010

Class-Action Foes Have Trifecta Before Supreme Court

PJP fellow Daniel Fisher discusses three pending cases that could end class-action litigation.

Three cases that may determine the future of class-action litigation are before the Supreme Court. If business advocates get their way on all three, plaintiff lawyers could have a much harder time convincing courts to certify lawsuits on behalf of large groups of consumers and employees.

And the typical 5-4 split between conservative and liberal justices may not rule the day: Justice Ruth Bader Ginsburg, a former civil procedure professor, is a class-action skeptic who has previously voted to rein in cases on behalf of asbestos claimants and insurance customers.

Full article at Forbes

Monday, December 20, 2010


"A very undesirable legislative condition." That is how the Senate Committee on the Judiciary, gathering in 1932, referred to the period after a bi-annual election and before the swearing in of the new Congress. The committee was describing reasons why the nation should adopt what turned out to be the twentieth amendment to the Constitution. This is the amendment which moved the beginning of the elected terms of federal offices to January from the original March date following the year of election. As the committee explained, the March date had been established in the 18th century when legislators needed a few months to close their home town affairs and move by horse-drawn coach to Washington. Such a long-drawn out period had no purpose in a faster world. But there was another reason for changing it: as Sen. George Norris, of Nebraska (pictured left), later one of those whom Sen. John F. Kennedy featured in his "Profiles in Courage," claimed, the lame duck session encouraged a kind of political fraud in which the Congress which had just been repudiated came back to meet, now absent any political mandate.

Friday, December 17, 2010

Publish and Perish? The Legal Times Article at the Heart of a Confirmation Battle

Ever since Robert Bork's nomination to the Supreme Court was defeated in 1987, there has been considerable worry over how a judicial nominee's written "track record" can work against them. The more someone writes, the more chances there are that what they write will offend a critical constituency (as it did with Bork) and lead to their defeat. The worry, of course, is that we are diminishing the chances of getting the best nominees for the courts if we make confirmation risky for anyone who has published significantly and, by being forthcoming, made important contributions to the law.

Now, in an interesting situation before the Congress, this tendency has been extended to include a nominee to become deputy Attorney General. James Cole, a partner at Bryan Cave, received the backing of the Judiciary Committee last summer but confirmation by the full senate has been held up because of an article he wrote in 2002 for Legal Times. The critical idea Cole expressed there was his belief, hardly novel, that terrorism cases should more appropriately be tried in the civilian courts.

Thursday, December 9, 2010

The Constitution in "Quotes"

“If the court’s ruling is correct, the government has unreviewable authority to carry out the targeted killing of any American, anywhere, whom the president deems to be a threat to the nation...It would be difficult to conceive of a proposition more inconsistent with the Constitution, or more dangerous to American liberty.”

Jameel Jaffer, a lawyer for the American Civil Liberties Union, on the decision this week by federal judge John D. Bates allowing the Obama administration to pursue the death of Anwar-al-Awlaki (in picture at left), an American citizen and Muslim cleric who is believed to have been involved with violent Al Qaeda activities in Yemen. Awlaki is now in hiding. While acknowledging that the thought of the president ordering the assassination of a U.S. citizen "without first affording him any form of judicial process whatsoever, based the mere assertion that he is a dangerous member of a terrorist organization” raised "stark" and "perplexing" questions, Bates saw the decision to target Awlaki for killing as a "political" question. Only the executive branch, he concluded, has the tools to determine whether someone in hiding "presents such a threat to national security that the United States may authorize the use of lethal force against him."

Tuesday, December 7, 2010

Distinguishing “Wikileaks” from the Pentagon Papers: One PJP Fellow’s Insight

Ever since Wikileaks burst onto the scene a few months ago, comparisons have been made linking the story of Julian Assange, the Wikileaks founder, with Daniel Ellsberg, the defense analyst who in 1971 exposed the Pentagon's secret history of the Vietnam War, revealing gross misrepresentations on the part of the government. Ellsberg's leak, which led to the publication of the Papers by the New York Times, resulted in a constitutional challenge and one of the most dramatic decisions in Supreme Court history, extending the reach of First Amendment protections and a reassertion of the doctrine of prior restraint. Ellsberg, now 79, has even spoken out in support of Assange and of PFC Bradley Manning, who leaked defense documents on the wars in Iraq and Afghanistan, to Assange. But can the two stories -- the Pentagon Papers and Wikileaks -- really be equated? PJP Fellow Trudy Rubin says no.

Monday, December 6, 2010

Does Our Primary System of Popular Election Threaten to Install Extremists into Positions of Power?

Former PJP Participant Bruce Ackerman Fears It Will

It was the Democratic convention of 1968 in Chicago that began a trend toward presidential primaries as the proving ground for major party nominations. Vice President Hubert Humphrey received the Democratic nomination for president that year despite having entered the campaign late and despite a strong showing by other candidates, notably Minnesota senator Eugene McCarthy. The convention, which was marred by violence from youth groups protesting the Vietnam War and questioning the legitimacy of American traditions and practices, gave impetus to those arguing for a popular national primary or, failing that, state practices that relied more on binding delegates to the results of statewide primaries.

Sunday, December 5, 2010

One to Watch in the New Congress: Utah Senator-Elect Mike Lee

Members of the new, Republican-infused Congress that will take office in January, 2011, will be carrying with them well-read copies of the Constitution, though some of them have strong views on how to change it, both in language and doctrine. Writing in the New York Times, former PJP faculty member Jeffrey Rosen cited Utah senator-elect Mike Lee as having the best legal credentials of the new class: Lee's father was a Solicitor General under President Ronald Reagan ("Mike acquired his love for the Constitution early on while discussing everything from the Due Process Clause to the Second Amendment around the dinner table [with his father]," reads the senator-elect's campaign website) and the junior Lee served as a clerk to Judge Sam Alito when he was on the Third Circuit Court of Appeals and again after Judge Alito became Justice Alito of the United States Supreme Court. In-between, he joined the well-respected Washington firm, Sidley & Austin.

Saturday, December 4, 2010

Andrew Mangino, PJP Collegiate Fellow 2009, Named Marshall Scholar

Andrew Mangino, who was a collegiate fellow for PJP 2009 while an undergraduate at Yale, has been awarded a Marshall Scholarship. The award is named for General George Marshall, who was secretary of state, secretary of defense and chief of staff of the Army as well as the author of the Marshall Plan. The Marshall Scholarship is provided to approximately 40 American graduate students to study in the United Kingdom. Mangino, who was editor of the Yale Daily News, graduated in 2009 and has been working as a deputy speechwriter to Attorney General Eric Holder.

Friday, December 3, 2010

Could the Obama Health Care Reforms Be Stopped Before They Start? This Man Will Decide

Judge Henry E. Hudson may be the most powerful man you have never heard of. As a federal district court judge in Richmond, VA, he will decide -- before year's end, he now asserts -- on a challenge to the recently passed federal health care law. The suit, brought by Virginia's attorney general, Kenneth T. Cuccinelli II, asserts that the provision of the law requiring people to buy health insurance is unconstitutional. While the Supreme Court has ruled that the Commerce Clause of the Constitution allows that body to regulate "activities that substantially affect interstate commerce," the question that Hudson must decide is: does the failure to do something -- in this case, the act of buying insurance -- constitute an "activity," albeit a passive one, that can be lawfully regulated by Congress?

Thursday, December 2, 2010

The Constitution in "Quotes": 2007 PJP Participant Kathleen Sullivan's Nuanced View of Citizen's United

"Citizens United has been unjustly maligned as radically departing from settled free speech tradition. In fact, the clashing opinions in the case simply illustrate that free speech tradition has different strands. The libertarian strand from which the majority draws support emphasizes that freedom of speech is a negative command that protects a system of speech, not individual speakers, and thus invalidates government interference with the background system of expression no matter whether a speaker is individual or collective, for-profit or nonprofit, powerful or marginal. The egalitarian strand on which the dissent relies, in contrast, views speech rights as belonging to individual speakers and speech restrictions as subject to a one-way ratchet: impermissible when they create or entrench the subordination of political or cultural minorities, but permissible when aimed at redistributing speaking power to reduce some speakers’ disproportionate influence."

Stanford Law School Professor Kathleen Sullivan, on Citizen's United, the Supreme Court decision announced earlier this year barring Congress, under the First Amendment, from limiting corporate contributions to independent political broadcasts. Sullivan's comments appeared in the Harvard Law Review.