Category Archives: Supreme Court

AltLaw Beta: Free Boolean-searches of SCOTUS/Federal Courts of Appeal Decisions

AltLaw

AltLaw, the newest and one of the more promising internet legal resources to hit the scene, is now up and running and available for free public advanced searches of case law.

It’s a sort of Google for Supreme Court and Federal Circuit Courts of Appeal decisions, and clearly holds promise to democratize the availability of relevant and useful case law in the States. LEXIS and Westlaw, of course, have long monopolized the availability of such information in any searchable or useful form, and have charged a pretty penny to those that want to easily search case or other resources (via “Natural Language” or the far more powerful, but underused, advanced/Boolean search engines). AltLaw now makes Boolean searching entirely free.

The catch: at startup, AltLaw’s coverage of SCOTUS case law extends fully only back to May 1991, and the Federal Courts of Appeals in a more irregular spread–the 7th Circuit back only to October 1999, and at best, the 1st Circuit back to 1992. Complete details about AltLaw’s initial coverage are posted HERE.

AltLaw is a joint project of Columbia Law School and the University of Colorado Law School. The site touts, amazingly, advanced searching options akin to LEXIS and Westlaw, including proximity searching, Boolean searches, concentration searches, wildcard searches (my fave), among others. The site also intimates that West Reporter Citations will be added.

Yet another step in making U.S. case law readily available to the citizenry, along the lines of what Cornell’s indispensible Legal Information Institute has done, for example, in making the U.S. Code and Code of Federal Regulations, among LII’s many other items, very quickly searchible and accessible for free.

Thanks to fellow appellate litigator Greg May at The California Blog of Appeal, and Harvard’s Info/Law for the story.

Lime

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Crack v. Cocaine: The Supreme Court to Rule on Decreased Punishment for Powder Cocaine

The Supreme Court added to its docket United States v. Kimbrough, 06-6330, which involves the application of the United States Sentencing Guidelines (“Guidelines”).

Note – Crack cocaine (hereinafter “crack“) is cocaine hydrochloride that is processed with baking soda to form of cocaine capable of being smoked. Cocaine in powder form will be referred to as “cocaine.”

Synopsis – Kimbrough was sentenced to 120 months for possession of 50 grams of crack cocaine. The range under the Guidelines was 168 – 210 months. The judge made the downward departure from the Guidelines based upon his disagreement with the sentencing disparity between crack cocaine and powder cocaine. This disparity in sentencing is known as the “100:1 crack/powder ratio,” which means that a defendant who deals 100 pounds of powder cocaine faces the same punishment as the defendant who deals 1 pound of crack.

Issue – The Court will decide whether a judge may deviate from the Guidelines if he disagrees with the decreased punishment for powder cocaine by giving a shorter sentence than required.

State of the Law – In United States v. Booker, the Supreme Court held that sentence enhancements, under the Guidelines, based upon facts found by the sentencing court and not a jury, violated the Sixth Amendment. The Booker majority remedied this Continue reading

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Lawyering Tip: RSS Legal Feeds

If any of you use RSS readers or depend on the internet for news related to your profession (or simply for enjoyment), you should be familiar with Netvibes. Netvibes is perhaps one of the more elegant and streamlined RSS readers out there. It’s been my intention to post a full review of the site in a future posting.

Until then, I’m publishing my law-related feeds in the shared section of Netvibes. The feeds, almost 50 sites in all, are a compilation of several dozen of the best legal sites and blogs out there, and via Netvibes, makes reading the content quite easy.

Simply float your mouse over a given headline, and you’ll get a bubble with a paragraph selection of the news item or blog post. Click on the headline, and you’ll be given a mini-RSS reader within Netvibes, without actually having to exit to another website. I’ve played around with software-based and web-based readers, including Windows Live, Google, and others, but I’ve continued to return to Netvibes as my main reader. The interface is very fast, and makes quickly locating the articles of interest a breeze.

Harry Lime’s Legal Feeds via Netvibes. Enjoy! And please send any good sites my way, I’d be glad to add to the pot.
HL

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Filed under Appellate Law, Criminal Law, Law, Military Justice, Military Law, Supreme Court, Tech, Windows Vista

Supreme Court or YouTube: Scott v. Harris

Scott v. Harris, 127 S.Ct. 1769 (2007), involves a 42 U.S.C. § 1983 action against a state police officer. Harris was involved in a high-speed chase, during which he was being chased by the police. Deputy Scott pulled Harris over by hitting the rear of his car, known as Pursuit Intervention Technique, attempting to get him to come to a stop. Harris lost control, crashed, and thereafter found his limbs inoperative.

Harris sued Deputy Scott on the theory that hitting the back of his vehicle was excessive force resulting in an unreasonable search under the Forth Amendment. The 11th circuit held that Deputy Scott was not entitled to immunity, because the law was sufficiently clear at the time to give reasonable law enforcement authorities fair notice that ramming a vehicle under the circumstances of this case was unlawful.

The Supreme Court found that the threshold question of whether Deputy Scott violated the Fourth Amendment was resolved, in large part, by the video Continue reading

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UPDATE: Court of Military Commissions and Review Rules available

The Pentagon has freshly updated and made available to the public a cartload of Military Commissions materials. Earlier this month we noted that the site hadn’t been updated for several months. That’s been remedied. On the site are:

  • Rules of Practice for the Court of Military Commission and Review
    • After a very quick perusal, I notice nothing too remarkable here–they look like, as we were led to suspect, a typical Court of Criminal Appeals’ rules, modified for the Commissions context. Many rules are footnoted “taken from ACCA (Army Court) rule” this or “Court of Appeals for the Armed Forces Rule” that. I will note that Rule 30 states that “The Clerk of Court is authorized to release unclassified filings with the CMCR and CMCR decisions. Filings and decisions will be available at: http://www.defenselink.mil/news/commissions.html.” That openness is certainly welcome, hopefully the link will be continually and timely updated.
    • Admission to practice requirements (as if you’d want to): “to be eligible for admission to the Bar of the CMCR, an attorney must be a member in good standing of the Bar of the highest court of a state, territory, commonwealth, or possession of the United States, the District of Columbia, or of the Bar of a Federal Court.” Proof of good standing is required. Foreign attorneys may gain honorary membership.
  • Approval and Promulgation of Rules of Practice
  • Multiple recent documents from the Khadr Commissions case that AO has reported on, inter alia, HERE (Khadr and Hamdan dismissal), HERE (reconsideration denial), and HERE (Khadr appeal), including: Continue reading

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POTUS applies Geneva Conventions to the CIA

The President yesterday signed an Executive Order, entitled “Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency.”

The White House Press release is HERE, and the full text of the Executive Order follows below my brief analysis.

Note that the Military Commissions Act requires this Executive Order. MCA, Sec 6(a)(3) : states that “As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.” The section continues to state that POTUS “shall issue [such] interpretations . . . by Executive Order,” and that such EO “shall be authoritative (execpt as to grave breaches of common Article 3) as a matter of United States law, in the same manner as other administrative regulations.”

As you read, note a few additional things. First off, the EO requires that CIA detainees “receive the basic necessities of life.” However, the Washington Post reports that a “senior administration official” states that “sleep” does not fall within the “basic necessities” category.

Second, the President reaffirms his 7 February 2002 determination that al Qaeda, Taliban, “and associated forces” are “unlawful enemy combatants who are not entitled to the Continue reading

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Parker Second Amendment Case headed to SCOTUS

We reported earlier that Parker v. District of Columbia, 04-7041 (D.C.Cir, 9 Mar 2007), the D.C. Circuit Court that struck down parts of the 31-year old D.C. gun laws as unconstitutional, was headed to the Supreme Court.

Not surprisingly, today that became a reality. Although the petition was due August 7th, D.C. officials announced today they’d be asking for a 30 day extension to file their petition. At a press conference, Mayor Adrian Fenty announced: “We have made the determination that this law can and should be
defended and we are willing to take our case to the highest court in
the land to protect the city’s residents. Our handgun law has saved
countless lives–keeping guns out of the hands of those who would
hurt others or themselves.”

If SCOTUS takes the case, it will be only the second time in 70 years that the Court has considered the breadth of the Second Amendment.

More as the case develops.

Lime out

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Military Commissions: Government appeals Khadr; Repercussions of the SCOTUS about-face

Some new developments.

1. First off, the Pentagon on Wednesday (July 4th) filed an appeal to reverse the commission judge’s dismissal and denial of reconsideration in the Khadr case, which we previously discussed HERE. I’m somewhat surprised, as most government offices weren’t open on the 4th. Despite the filing of the appeal, apparently the court, called the Court of Military Commissions Review (CMCR), isn’t even truly in existence yet: the members are due to be sworn-in this week.

The Court’s rules are according to one report “almost identical to those employed by the various service courts of criminal appeals.” For an example of one of the service court’s rules, the Navy-Marine Corps Court of Criminal Appeals’ rules are HERE.

The same report suggests that no timetable exists for processing the appeal. If the CMCR follows generally military case law, however, one can look to United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), which requires a docketing time with the court of no more than 30 days after conviction, and requires no more than an 18 month time period between docketing of a record Continue reading

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Hamdan, Boumediene, and Al Odah back at SCOTUS; Commission denies reconsideration of dismissal

SCOTUS Detainee Cases

News on several fronts. Last Friday, June 29th, SCOTUS reversed its denial of cert in both the Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196) cases, saying :

The petitions for rehearing are granted. The orders entered April 2, 2007, denying the petitions for writs of certiorari are vacated. The petitions for writs of certiorari are granted. The cases are consolidated and a total of one hour is allotted for oral argument.

SCOTUS reversing a denial of cert, then granting rehearing and new argument, reportedly has not occurred since Hickman v. Taylor, 329 U.S. 495 (1947).

The Court also noted that due to pending decisions in the U.S. Court of Appeals for the District of Columbia Circuit, supplemental briefings would be ordered upon any decisions issued in Bismullah, et al., v. Gates (06-1197) and Parhat, et al., v. Gates(06-1397). Boumediene and Al Continue reading

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Lime’s take: Guantanamo Bay — A not-so-easy Question

Kudos to yojoe for airing his views, but as with my strong disagreement with the conclusions of Michael Moore’s Sicko, there’s often another way to skin a cat. While I find merit in yojoe’s conclusions, I’m not sure he’s taken the most virtuous route to that conclusion (and I ascribe no fault to him–but to factors detailed below). And so I’m left disagreeing with his conclusion in this particular case.

Without going in great depth for professional and other reasons, readers trolling over to the New York Times, one of yojoe‘s sources, will notice the following language not cited by yojoe: “Three of the Russian men released with Mr. Odizhev have since been arrested, and the other three have apparently fled Russia because of police harassment or torture, according to Human Rights Watch, a private American organization, which has investigated their cases.”

Lest readers be mistaken that Human Rights Watch doesn’t intersect with the U.S. Government’s concerns, on May 24th, Department of State Assistant Secretary for European and Eurasian Affairs Fried testified before the U.S. Helsinki Commission about Russia’s current trajectory, and this is what he said:

Under the guise of demanding reforms, Russia has proposed changes to the [Organization for Security and Cooperation in Europe (OSCE)], the effect of which would be to cripple its democracy promotion efforts. The United States disagrees strongly with this Russian approach . . .

Suppression of genuine opposition, abridgement of the right to protest, constriction of the space of civil society, and the decline of media freedom all represent serious setbacks that are inconsistent with Russia’s professed commitment to building and preserving the foundations of a democratic state. The unsolved murders of Continue reading

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SCOTUS decides Federal Sentencing Guidelines case, Rita v. U.S.

SCOTUS handed down today its decision in the Federal Sentencing Guidelines case, Rita v. United States, No. 06-5754, holding 6-3 (J’s Scalia, Thomas, and Souter dissenting) that appellate courts may presume that sentences are reasonable (and holding 8-1 as to the issue I don’t discuss below, that the District Court properly analyzed the relevant sentencing factors) .

The petitioner, Victor Rita, was convicted and sentenced for two false statements made to a grand jury about his purchase of machinegun parts. The trial judge’s sentence was 33 months, and the recommended Federal Guidelines sentence range from 18 U. S. C. §3553(a), had been 33 to 41 months based on petitioner’s physical condition, likely vulnerability in prison, and military experience. 4th Circuit affirmed, holding that a sentence imposed within the properly calculated Guidelines range is presumptively reasonable.

In a decision that will make it more difficult for appellants to challenge their sentences arrived at in consultation with the Federal Sentencing Guidelines, SCOTUS now holds that courts of appeal may apply a non-binding presumption of reasonableness to Continue reading

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4th Circuit Al-Marri Decision: Military Custody of Detainee Must Cease

The 4th Circuit today released its opinion in Al-Marri v. Berman, No. 06-7427. Fuller analysis later, but here is the opinion. Until then, it’s the usual suspects–citation of Quirin, Ex Parte Milligan, etc. The opinion limits the habeas-stripping provisions of the Military Commissions Act (MCA), holding that “As an alien captured and detained within the United States, he has a right to habeas corpus protected by the Constitution’s Suspension Clause.” Opinion at 13. The opinion then remands to the Federal judge in South Carolina, instructing the judge to order the Pentagon to release Al-Marri from military detention so that the Pentagon can transfer Al-Marri to federal civilian custody for trial in federal civilian (criminal) courts. The court barred military detention of non-U.S. citizens who were detained inside the U.S., but “lawfully admitted to this country [and] who have established substantial connections here.” Op. at 30.

The court further orders: “The Government can transfer al-Marri to civilian authorities to face criminal charges, initiate deportation proceedings against him, hold him as a material witness in connection with grand jury proceedings, or detain him for a limited time pursuant to the Patriot Act. But military detention of al-Marri must cease.” Op. at 77.

Analysis forthcoming.

Lime out

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Khadr and Hamdan: DISMISSED

 [UPDATE: On 29 June 2007, COL Brownback denied the government's reconsideration motion on the Khadr case.  Story HERE.]

We’ve discussed both the Khadr and Hamdan cases previously here, here, and here, and just yesterday a very significant development has sprung itself on us. On Monday 4 Jun 07, the military judges of both cases (CAPT Keith Allred, JAGC, USN in Hamdan, COL Peter Brownback III, JA, USA in Khadr) granted the defense motions to dismiss all charges and specifications, without prejudice. Both rulings dismissed the commissions trial on jurisdictional grounds. The actual rulings are here for Khadr and Hamdan.

Hamdan

In Hamdan, the court noted that the accused had, on 2 October 04, appeared before a Combatant Status Review Tribunal (CSRT) in Guatanamo, which determined that Hamdan had been properly detained as an “enemy combatant.” However, the court noted that on 10 May 07, Hamdan’s charges were referred, specifying jurisdiction as arising due to Hamdan’s status as an “alien unlawful enemy combatant.” This is precisely the language that the Military Commissions Act (MCA) limits Military Commissions jurisdiction to under 10 U.S.C. § 948(d): jurisdiction is limited to law of war violations committed by “an alien unlawful enemy combatant.” What’s clearly missing from the CSRT’s determination is that Hamdan was also “unlawful.”

The court declined to adopt the Government’s invitation to find that the “unlawful” designation could be derived from President Bush’s 7 February 2002 memorandum entitled “Humane Treatment of al Qaeda and Taliban Detainees,” which contained the conclusion that “Taliban detainees are unlawful combatants and therefore do not qualify as Prisoners of War under Article 4″ of the Geneva Conventions. CAPT Allred specifically noted that jurisdiction required Continue reading

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$125 free money!!! Attorney fired??? Zounds!!! A BAR/BRI Class Action update.

I took the Bar/Bri Bar Review course, as do far too many attorneys-to-be. Simply put, it costs far too much for what amounts to mere force-fed rote memorization of masses of answers to multiple choice questions.

As you likely know, there’s a settlement out there negotiated between the firm representing the class, McGuireWoods, and BAR/BRI. The settlement (not yet finalized) requires West Publishing to pay $36 million, and Kaplan to pay $13 million. That amounts to an average of $125.00 for each of the approximately 300,000 law students that took a BAR/BRI course between 1997 and 2006.

If you haven’t submitted a claim and want to get in on the action, you must postmark your claim no later than September 17th, 2007. The class action page and claim form links are here.

McGuireWoods partner Eliot Disner, however, along with three of the seven lead plaintiffs, have objected to this settlement, claiming it far undervalues the class’ actual damages, which Mr. Disner estimates at more than $400 million. Although Mr. Disner drafted the brief, he did not file it–it was filed by the three objecting plaintiffs, Loredana Nesci, Lisa Gintz, and Ryan Rodriguez. Turns out that Mr. Disner et al don’t think the $125 is so free after all. At ten times the damages, this theoretically would mean we’d each be entitled to, approximately, $1,000. Much more attractive figure, that.

May 24th, the Wall Street Journal reported, and Mr. Disner confirmed, that he has been fired by McGuireWoods for objecting to the settlement. Law.com reports that McGuireWoods partner William Alcott responded to the Disner-drafted brief: “Eliot’s brief does not represent the position of McGuireWoods as lead class counsel,” and that “[McGuireWoods] will be addressing the substance” of the brief in a later filing.

For those of you that agree with Disner, et al, and think the objectors have any chance of success, you may get word in advance of your September 17 deadline. While the $49 million settlement has been preliminarily approved by the judge, another hearing is scheduled for June 18th to finalize the settlement.

And a little postscript. Who is this colorful Loredana Nesci character that’s popping up in the media in pictures with Disner? Why is she suddenly the objectors’ poster-girl? From the odd MySpace page, to her bodybuilding stats, to her extra-schmaltzy law firm website (check out the bio, which details her participation in police shootouts (as a policewoman) and her providing nutrition counseling to insecure fellow law students), she almost seems like an attractive female Mike Hammer (yes, right down to the schmaltz). At best, this seems like an unorthodox choice of a poster-girl. Her wit and wisdom about the settlement is that it “pretty much sucks.” Needless to say, I agree: I’ll take the $1,000 over the $125 anyday.

Loredana: I sincerely hope you and Disner can squeeze a little more out of those publication and Bar Review powerhouses for us starving attorneys. Disner: hope you get your job back. If all else fails, Loredana’s web site says that her passion as an attorney is defending the blameless. (And we all know you’re doing this solely because it’s a righteous cause… you’re doing it for us.)

Lime out

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Avandia, Incompetent Lawyers, and the New Science: Medicine (and the Law?) makes strides thanks to Google

Tuesday’s Wall Street Journal reported on the alarming news about the diabetes drug Avandia, which places users at a 43% increased risk of suffering a heart attack. I have a close relative on the drug, so it’s of immediate concern to me. More about the Avandia news here.

Dr. Steven Nissen of the Cleveland Clinic, the WSJ article reports, started investigating Avandia’s risks in 2006, based on “hints” of trouble he found in prior studies of the drug. However, the article states, he “hit pay dirt with a Google search that pointed him to a trove of study data.” Dr. Nissen then pushed this study data “in just a few weeks” into the prestigious New England Journal of Medicine’s article, to be released in the June 14, 2007 issue. Nissen’s Google search, which turned up an online database of drugmaker Glaxo’s study results, including the heart attack data, was the catalyst for Nissen’s viewing the “hints” as much more serious indicia of Avandia’s dangers, and for the push to quick publication.

Continue reading

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