The United States Court of Appeals for the Eleventh Circuit ruled yesterday
[.pdf] that a citizen's refusal to decrypt encrypted drives is protected by the Fifth Amendment, at least under some circumstances. In doing so it reversed the district court's contempt order entered against a John Doe defendant after he refused to decrypt his laptop hard drive and five external hard drives in response to a subpoena. This decision arguably conflicts with an earlier decision
in which a district court in Vermont required a defendant to provide the password to his encrypted drives. The Eleventh Circuit distinguishes the earlier case on the basis that the government in that case knew of the existence of the files and simply couldn't access them, while in the recent case the government did not know the names of files or even whether or not files actually existed on the encrypted drives.
An-arrgh-chy: The Law and Economics of Pirate Organization. [alternate link] To effectively organize their banditry, pirates required mechanisms to prevent internal predation, minimize crew conflict, and maximize piratical profit.
The Supreme Court issued its opinion Bell Atlantic Corp. v. Twombly [pdf]
today. Although superficially an antitrust case, the Court examined the standard of review under 12(b)(6) and concluded that the old "no set of facts" standard should be officially retired.
The Structure of Search Engine Law
, by James Grimmelmann. [abstract inside]
In a 5-4 opinion [pdf]
, the Supreme Court concluded today that the EPA has the authority to regulate greenhouse gases that may contribute to global warming, and must examine the scientific evidence of a link between those gases contained in the exhausts of new cars and trucks and climate change. Justice Stevens wrote the majority opinion, and Justice Scalia wrote a dissent, joined by Roberts, Thomas, and Alito. ScotusBlog summary here
Looks like the battle over Bush's judicial nominations may be back on. In February, Bush nominated Michael B. Wallace
to a seat on the Fifth Circuit. Not long after, the ABA Standing Committee on Federal Judiciary
, which evaluates the professional qualifications of all nominees for the federal bench, gave Wallace a 'not qualified' rating
. With that rating, Wallace joins company with other similarly unqualified
judicial nominees such Richard Posner, Frank Easterbrook, and J. Harvie Wilkinson III. [more inside]
In June, the American Bar Association created
a task force
to investigate President Bush's use of signing statements
to qualify his approval of certain laws. Some of the members of the task force, among others, testified before Congress
, and today the task force issued its final report and recommendations [pdf]
. Its conclusion: "American Bar Association opposes, as contrary to the rule of law and our constitutional system of separation of powers, the issuance of presidential signing statements that claim the authority or state the intention to disregard or decline to enforce all or part of a law the President has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress."
Judge Refuses to Dismiss NSA Spy Program Lawsuit.
Judge Walker has denied the motion by the government to dismiss the EFF's suit
based on the state secrets doctrine. Read the order [pdf]
and more coverage and analysis at SCOTUSblog
Two recent papers examine networks among Republicans: one among lawyers and the other among judges. Lawyers of the Right: Networks and Organization
concludes that conservative lawyers, and particularly the Federalist Society, occupies a structurally important core bridging the gap between the religious and business constituencies on the right, which otherwise wouldn't interact. Meanwhile, Do Republican Judges Cite Other Republican Judges More?
concludes that judges tend to base outside-circuit citation decisions on the political party of the cited judge, tend to cite judges of the opposite political party significantly less, are more likely to engage in biased citation practices in certain high stakes situations, and cite disproportionately more to those judges that cite back to them frequently. [via Professor Bainbridge and Empirical Legal Studies]
Legal Theory Lexicon.
A companion to Prof. Larry Solum's Legal Theory Blog
, the Lexicon collects Solum's introductory posts on various aspects of legal theory. The Lexicon does a spectacular job of providing both a clear introduction to a wide range of basic and advanced topics, as well as references for more advanced reading.
SCOTUS strikes down campaign finance restrictions [pdf].
The Supreme Court issued an opinion today in Randall v. Sorrell
, striking down limits on campaign contributions and campaign spending imposed by the state of Vermont. The Court, in a fractured opinion (six separate opinions, including two dissents), concluded that restrictions on both contributions and expenditures ran afoul of the First Amendment. More
from Amy Howe at SCOTUSblog. Expect more from Rick Hasen
Why Tolerate Religion?
Brian Leiter's new paper on the philosophical and legal justifications for toleration of religion. From the abstract: Religious toleration has long been the paradigm of the liberal ideal of toleration of group differences, as reflected in both the constitutions of the major Western democracies and in the theoretical literature explaining and justifying these practices. While the historical reasons for the special “pride of place” accorded religious toleration are familiar, what is surprising is that no one has been able to articulate a credible principled argument for tolerating religion qua religion: that is, an argument that would explain why, as a matter of moral or other principle, we ought to accord special legal and moral treatment to religious practices. There are, to be sure, principled arguments for why the state ought to tolerate a plethora of private choices, commitments, and practices of its citizenry, but none of these single out religion for anything like the special treatment it is accorded in, for example, American and Canadian constitutional law. So why tolerate religion? Not because of anything that has to do with it being religion as such - or so this paper argues.
Luttig Resigns. Judge J. Michael Luttig
, long considered a front-runner for a Supreme Court nomination, at least until he was passed over by President Bush, has resigned his position on the Fourth circuit. Luttig will take over as general counsel to Boeing. Read Boeing's press release
and Luttig's resignation letter [pdf]
Don't like the law? Write it yourself.
Starting a new job at the big law firm? Make sure you read this coloring book for lawyers.
Need a little background material for your next legal discussion? Bone up with Learning About the Law
, Learning More About the Law
, and Learning About Judges
(also available in Spanish
). For law enforcement information, try Law & Order, an Adventure to Color
. [most links pdf]
The SEC has proposed new rules [pdf]
to drastically increase requirements on executive compensation disclosure. You can read a summary of the proposal in the SEC's press release
, as well as statements from Chairman Cox
and Commissioner Atkin
. [more inside]
David Garrow reviewed Justice Blackmun's papers
, released to the public in 2005
, and concludes
that towards the end of his career, Blackmun's clerks all but signed his opinions. In an interview
, discussing senility and Supreme Court Justices, Garrow argues that there has been "a dramatic increase over the last 35 or 45 years in the amount of the justices’ work that is performed by their law clerks," and recommends a "reduction to two or, even better yet, one clerk" from the four clerks available per Justice now. Garrow also comments on the now-deceased Chief Justice Rehnquist, who suffered from an addiction to painkillers in the 1980s
. Garrow's view is controversial
, though, and Legal Affairs published several responses
in the same issue. Other law professors have weighed in, including Dan Markel
, Mark Tushnet
, and some of the folks at the Volokh Conspiracy
. So how large
is the impact
of law clerks?
Lawyers appear to missing out on the growth of the leisure class. Despite American's growing leisure time
, and despite another round of pay increases for starting associates
, lawyers seem to be working more hours than ever
. As long as lawyers are tied the billable hour
, it seems that greater salaries for associates inevitably means longer hours for associates. Law professor Pat Schiltz argues [pdf]
that the longer hours for new associates combined with the high pressures of law practice means that those lawyers often suffer from depression, anxiety, alcoholism, drug abuse, and suicide at very high rates, and are often forced into unethical practices
just to meet the requirements of the law firm.
Alito's First Vote.
In his first significant act on the Supreme Court, Justice Alito splits with his conservative colleagues, and votes to refuse to let Missouri execute a death-row inmate contesting lethal injection. You can read the (very short) order on page four of yesterday's order sheet
[pdf]. More commentary at SCOTUSblog
, and discussion of Alito's approach to the death penalty is available at Sentencing Law & Policy
The Supreme Court decided Ayotte v. Planned Parenthood
today, vacating the lower court's ruling that the parental notification statute was unconstitional. Instead, the Court instructed the lower court to consider narrower relief. The Court, in an opinion [pdf]
written by Justice O'Connor, held that if enforcing a statute that regulates access to abortion would be unconstitutional in medical emergencies, invalidating the statute entirely is not always necessary or justified, for lower courts may be able to render narrower declaratory and injunctive relief. [more inside]
Supreme Court upholds Oregon's assisted suicide law.
Justice Kenedy wrote the opinion for the majority, concluding that Ashcroft did not have the authority to sanction doctors under the Controlled Substances Act. Justice Scalia dissented, joined by Justice Thomas and Chief Justice Roberts. Thomas also wrote a separate dissent. The Washington Post has the opinions
, and you can get the pdf
from the Supreme Court's website.
In July, Georgia federal judge William C. O’Kelley ordered Barrow County to remove a Ten Commandments plaque from its courthouse. The suit was filed by ACLU Georgia
, which not only succeeded in getting the plaque removed, but also recovered $150,000 in attorneys’ fees and expenses. Ten Commandments-Georgia
pledged to reimburse the county for its legal expenses. In order for the group to raise the last $52,000 it needs to meet that pledge, it has put the actual Ten Commandments plaque that was removed from the courthouse under the order of the court up for auction on eBay
The Supreme Court ruled today
that Michael Newdow did not have standing to sue on behalf of his daughter in challenging the recitation of the pledge in a public school classroom in California.
Looks like Rice will testify before the 9-11 Commission after all.
In a letter
sent by White House counsel Alberto Gonzales to the Sept. 11 commission, Gonzales notes:
Furthermore, we have now received assurances from the speaker of the House and the majority leader of the Senate that, in their view, Dr. Rice's public testimony in connection with the extraordinary events of September 11, 2001, does not set, and should not be cited as, a precedent for future requests for a national security adviser or any other White House official to testify before a legislative body.
Separation of powers question: If the institution of the separation of powers is a set of informal arrangements between the branches, which continually look to previous practice, how can this not
be a precendent? Various blawgs weigh in
uncovers what seems to be a serious problem either with California voting machines or the vote tallying system: The Secretary of State's summary of votes
on the Davis recall shows three counties--Alameda, Kern, and Plumas--that apparently had zero
voters who didn't vote on the recall. Not one. All three counties used Diebold machines. Other counties ranged from 0.5% to 10.3% of voters not voting on the recall. More
from Rick Hasen, a top election law scholar. [Via Volokh.]
Ronald Dworkin’s Rights and Terror
[pdf]. At NYU's Colloquium in Legal, Political and Social Philosophy
, Dworkin provides a useful catalogue of the Bush administration’s restrictions on the rights of both citizens and non-citizens of the US since September 11th. Via Crooked Timber and Larry Solum's Legal Theory Blog.