Wednesday, January 28, 2009

Elections Do Matter

A couple of years ago, the Supreme Court held that the 180-day limitations period for pay discrimination claims ran from the date that the employee receives her paycheck. This was true whether or not the employee knew that she was being paid less than her male counterparts. The case was Ledbetter v. Goodyear Tire & Rubber Co. Orin Kerr thinks it was a close call.

Justice Ginsburg dissented at the time and didn't think it was such a close call. Toward the end of her dissent, she wrote: "This is not the first time the Court has ordered a cramped interpretation of Title VII, incompatible with the statute's broad purpose. Once again, the ball is in Congress' court. As in 1991, the Legislature may act to correct this Court's parsimonious reading of Title VII."

That is exactly what happened today. Congress didn't just reverse the holding of the Ledbetter case, it kicked the case where it hurts. The law applies to all cases filed since the day before the Court decided Ledbetter. And in one of the whereas clauses, Congress states that the decision "ignores the reality of wage discrimination and is at odds with the robust application of the civil rights laws that Congress intended."

Tuesday, January 27, 2009

Random Question About Mr. DeLeo And Boston Latin

There are a couple of articles about Robert A. DeLeo in the Boston Globe today. Mr. DeLeo is the state representative who appears to be in the best position to snag the speakership in the wake of Sal DiMasi's departure.

This profile of him by Matt Viser is interesting. First there's this sentence: "He drives an olive-colored Ford Explorer and lives in a modest house on the North Shore, which he grew up in as a child." Not so clear, right? If the man grew up in the Explorer, well, that'd be a heck of a story.

But here's the point: further down, the article notes that Mr. DeLeo is "[a] graduate of Boston Latin". If he grew up in Winthrop, how can that be? Is the Boston residency requirement a recent development? Someone who knows more about the school's history might be able to help out with this.

In any event, best of luck to Mr. DeLeo. Based on the circumstances under which his predecessors departed, he'll probably want to lawyer up ASAP.

Friday, January 23, 2009

Andover Student Enables Confirmation Of Common Sense

The SJC's decision that being on the high school swim team isn't a constitutionally protected property interest shouldn't surprise anyone. The case is Mancuso v. Massachusetts Interscholastic Athletics Ass'n, SJC No. 10151.

What's surprising is that two states -- Kansas and New Hampshire -- have held that participating in interscholastic sports is a protected property interest. Massachusetts joins California, Illinois, and Pennsylvania among those states that disagree.

Friday, January 16, 2009

Things You Hope Your Kid Won't Learn At School Today

Commonwealth v. Kaupp, SJC No. 10177, is an interesting case in that it's one of those rare instances in which the SJC flips a conviction based on the trial court's failure to suppress evidence.

Don't expect paper copies of the opinion to be included in the promotional materials distributed by Wakefield's Northeast Metropolitan Vocational High School, however. Yikes.

Thursday, January 15, 2009

Supreme Court Causes Head Scratching

Just a completely bizarre lineup in Oregon v. Ice, Supreme Ct. No. 07-901. The issue, broadly stated, is the role of juries in sentencing decisions. The majority (Ginsburg, Stevens, Kennedy, Breyer, Alito) allowed the judge to impose a harsh sentence in a case involving sexual assaults of an 11-year-old girl. The dissenters (Scalia, Roberts, Souter, Thomas) said this determination should have been left to the jury.

It is really difficult to find the dividing line here. Can it really just be a matter of stare decisis? One thing is for sure, though: when you see Scalia, Roberts, and Thomas dissenting and making vigorous statements regarding the procedural rights of criminal defendants, something strange is going on.

Finally: apologies for the absence of posts thus far this week. Actual work must be done.

Thursday, January 8, 2009

The Commonwealth Beats Back Rampaging Visigoths

And by "rampaging Visigoths", we mean Capital One Bank. The case is Capital One Bank v. Commissioner of Revenue, SJC No. 10105.

The essence of the bank's argument was that it shouldn't have to pay excise taxes in Massachusetts because it doesn't have a physical presence or any employees here. The bank argued that in the absence of a physical presence in Massachusetts, imposing the tax would violate the commerce clause of the U.S. Constitution. The commerce clause constrains state regulation of interstate commerce, while at the same time giving Congress insanely broad powers.*

Capital One did not persuade the Court. In a unanimous opinion, the SJC swept aside seemingly pertinent U.S. Supreme Court precedent because sales and use taxes differ from the excise taxes the Commonwealth sought to impose here. The main difference, says the Court, is that the bank only has to pay the excise tax once a year. But that argument, explored in footnote 17 is a bit tough to follow.

What's really going on here? The Court found it compelling that about 450,000 people had Capital One cards as of 1998, at which point Capital One derived about $60 million in income (fees, interest and penalties) from Massachusetts residents. That was enough for the Court to conclude that Capital One's activities had a "substantial nexus" with Massachusetts.

There appears to be about $2 million for the Commonwealth's coffers at stake here. Think we might be able to use that money for something?

*Though not as broad as, say, thirty years ago.

Wednesday, January 7, 2009

A Closer Call Than It Should Be

Adam at Universal Hub already has a short post up about the Appeals Court's decision in Kennedy v. Beth Israel Deaconess Med. Ctr., Inc., No. 06-P-1918. It's worth digging into the facts a bit more, since this is one of those rare Appeals Court cases where a justice takes the time and effort to draft a dissent.

The Court flipped a trial judge's decision to reopen a case after it had been dismissed. Why was it dismissed? Because the plaintiff's lawyer, H. Paul Carroll, couldn't manage to properly deliver a copy of the complaint to the defendant after receiving six emergency time extensions to do so.

That's right: six!

Let's run down counsel's reasons for these six extension.
  • The First One: he needed to talk to an expert and he put down the wrong deadline on his calendar.
  • The Second One: he still needed to talk to that expert and he'd been assaulted (the lawyer, not the expert).
  • The Third One: he needed to talk to the expert some more and was in discussions with the hospital to get the complaint delivered informally.
  • The Fourth One: the sheriff who was supposed to deliver the complaint couldn't guarantee delivery by a certain date.
  • The Fifth One: recent inclement weather.
  • The Sixth One: he needed to draft a new complaint that more fully set out the complicated medical issues.

By sheer coincidence, there's a lawyer in Newburyport who goes by the name H. Paul Carroll (same guy? maybe?). His website touts his ability to provide timely solutions to his clients, which is a little bit bizarre. There also seems to be a lawyer named H. Paul Carroll (same guy? maybe?) who was suspended by the New Hampshire Bar for failing to pay a special fee after, you guessed it, he didn't file some administrative paperwork on time.

From a strict legal perspective, this is actually a pretty tough case. That's why there's a dissent. This might just be one of those cases, though, were a mechanical interpretation of the law produces a result that wouldn't inspire a whole lot of public confidence in the profession.

Tuesday, January 6, 2009

New Bedford, Guns & Dangerousness

We learn from this morning's Boston Globe that there's some concern about the Bristol County district attorney's practice of putting people who illegally carry weapons in jail pending trial. And when the concern emanates from Chief Justice Margaret Marshall, the issue deserves some consideration.

The details from the Globe story are sketchy. The statute in question is G.L. c. 276 s. 58A, but the Globe doesn't tell us that. Section 58A allows prosecutors to ask district court judges to detain defendants before trial if the person is accused of:
a felony offense that has as an element of the offense the use, attempted use, or threatened use of physical force against the person of another, or any other felony that by its nature involves a substantial risk that physical force against the person of another may result, including the crime of burglary and arson whether or not a person has been placed at risk thereof . . . .
The article states as a factual proposition that "[t]he state law that established dangerousness hearings was enacted in 1994 to combat domestic violence after several defendants free on bail killed their wives or girlfriends."

Is that true, though?

If it is true, then defendants who are simply caught with illegal guns have a compelling argument to make. If, however, the statute was enacted to protect the general public from violent crime (including, of course, domestic violence) perpetrated by defendants out on bail, generally, the defendants here have a less strong argument.

The defendants want the core question to be whether a person carrying an unlicensed gun is dangerous per se. Because the answer to this is probably not.* If Bristol County and C. Samuel Sutter are smart, they'll make the core question whether dangerous people carrying unlicensed guns can be detained pending trial. The answer to this has to be yes. This is example number ten zillion showing that it's important to be the one framing the issues in a case, whether you're in a small claims session or the United States Supreme Court.

Remember too that prosecutors must prove that the defendants in question (197 alone in Bristol County in the last two years, of which 141 were detained) are dangerous. They don't do so in a vacuum. There are hearings. Defendants are represented by their own lawyers.

The article doesn't provide the slightest indication as to whether this policy is working from an objective standpoint, whether gun-related crime is down in New Bedford and Fall River over the last two years. This apparently was not an important enough detail for John R. Ellement or Jonathan Saltzman to tell us about it. Or maybe it was in a draft and it was a casualty of the shrinking news hole. A quick scan of the Google indicates that crime in New Bedford is down from two years ago, but up over last year. So a mixed bag.

Overarching point: there's some question as to whether current laws regulating gun possession are even constitutional anymore.** But until that gets resolved, or the Heller case is overturned, expect to see a lot of hand-wringing about issues like this.

UPDATE: A helpful commenter points us to this article, which indicates that the policy is working.

*But only probably.

**Before you say "Oh no there isn't", ask yourself whether the Supreme Court has explicitly ruled on this issue. Not posited certain reasonable restrictions where those restrictions weren't actually under consideration. No. Actually ruled on the issue. So, yeah, there's some question as to whether laws regulating gun possession are constitutional.

Monday, January 5, 2009

Alberto Gonzales Can Kiss My Constitution

Decisionism entertains you (and itself) with Jeopardy-style trivia!

Answer: The law review articles What's a President to Do? Interpreting the Constitution in the Wake of the Bush Administration's Abuses and Faithfully Executing the Laws: Internal Legal Constraints on Executive Power?

Acceptable Question No. 1: What are the two most recent publications by University of Indiana law professor Dawn Johnsen, Barack Obama's nominee to head the Office of Legal Counsel at the Justice Department?

Acceptable Question No. 2: What is yet another ex post rejoinder to all the people (including some pretty smart folks) who said that there wasn't a big difference between Al Gore and George W. Bush. One hopes that commentators will now keep in mind that regardless of how moderate a candidate for president may seem, he or she's going to be appointing people to a lot of momentous positions a couple of steps down the ladder. That is, the people who actually govern and do things like write torture memos.

Acceptable Unprofessional Question No. 3: What makes blog authors cackle and say "Eat it, John Yoo"?

Friday, January 2, 2009

A Thought Or Two On The Burris Mess

Happy New Year, etc.

So it was looking like the whole should-the-senate-seat-Roland-Burris-? (STSSRB?) mess was headed toward a not very odd partisan divide.* Then Jonah Goldberg had to come in and muck everything up by giving a tepid endorsement to the left-leaning Amar/Chafetz argument concerning STSSRB.** The rightward-tilted Volokh people believe that the answer to STSSRB? is yes. Though they would tend to frame the question as must-the-senate-seat-Roland Burris-? (MTSSRB?). Brian Kalt agrees. And he's a member of the Federalist Society.***

Through a certain ideological lens, it would appear that the Amar/Chafetz interpretation of the impact of Powell v. McCormack on STSSRB? is the right one. Powell v. McCormack, after all, involved the House's attempt to refuse to seat the clearly-elected Congressman Adam Clayton Powell. On that basis, and based on good ole principles of the common law development, it would seem that Powell doesn't speak at all to STSSRB? or MTSSRB?

UPDATE (2:30 p.m.): Prof. Tribe proves/agrees with at least a couple of points in this post. Without even intending to. He is that cool.

*Why not very odd? Well, because right leaning legal thinkers tend to vote Republican (and vice versa). People who tend to vote Republican tend to want Republicans to win as many seats in the Senate as possible (and vice versa). And, uh, Roland Burris might be a ripe target for a Republican pickup (whereas a Democrat appointed by Pat Quinn might be a bit stronger). Just maybe.

**Of course, the structure of said tepid endorsement is typical Jonah Goldberg. Structure: (A) I don't have a strong about opinion about mildly controversial issue X; (B) But I don't think argument Y about issue X is totally crazy. A + B = Jonah Goldberg can never be wrong.

***He also went to the University of Michigan. This means that he is at least 95% awesome. Membership in the Federalist Society, however, means that he is probably 95% wrong about things not related to the awesomeness of the University of Michigan.