By Carlyn Kolker
A win for the Establishment Clause
1/10/12
The 10th Circuit Court of Appeals today upheld a lower
court ruling blocking an Oklahoma law that bans the use of
Sharia, or Islamic law, in courts in the Sooner state (where
Summary Judgments has the good fortune of visiting her in-laws
every holiday season). The big winner in the 10th Circuit's
ruling, as far as Summary Judgments can tell, is the
Establishment Clause of the First Amendment.
Refresher: the First Amendment reads, in part: "Congress
shall make no law respecting an establishment of a religion, or
prohibiting the free exercise thereof" That concise phrase
gives way to two clauses, the Establishment Clause and the Free
Exercise clause, that form the bedrock of many religious
freedom cases.
The three-judge panel of the 10th Circuit ruling determined
that Muneer Awad, who'd sued to block the law, showed that he
had sufficiently argued his case for a preliminary injunction
under the Establishment Cause, and didn't even need to reach
Awad's argument under the Free Exercise clause. Awad, the panel
wrote, showed that the law subjects Muslims in Oklahoma to
disfavored treatment -- a kind of harm that can be used to make
a claim under the Establishment clause.
"We conclude that Mr. Awad's allegation -- that the
proposed state amendment expressly condemns his religion and
exposes him and other Muslims in Oklahoma to disfavored
treatment- suffices to establish the kind of direct
injury-in-fact necessary to create Establishment Clause
standing," Judge Scott Matheson wrote in the opinion.
Oklahoma had argued that the law wasn't discriminatory.
Bipartisanship lives!
1/10/12
And you thought redistricting was just about Texas. A day
after the Supreme Court heard a crucial case about Texas's
redistricting plans, the 11th Circuit Court of Appeals will
consider a challenge to a constitutional amendment in Florida
which helped re-set the Congressional map in that state, as my
Reuters colleague Terry Baynes reports. What really jumped out
at Summary Judgments about the Florida fight is the strange
bedfellows the lawsuit has produced. The plaintiffs in the case
are two representatives from opposite political parties.
Corrine Brown, an African-American Democrat, and Mario
Diaz-Balart, a Republican have joined forces to sue the state,
saying the Florida law is unconstitutional because it violates
the Elections Clause, which gives state legislatures the
authority to regulate the details of congressional elections.
They also say the 2010 law deprives minorities of voting power.
But in yet another strange-bedfellows-twist,both the American
Civil Liberties Union and the NAACP oppose the lawsuit. "I
think the lawsuit is just frivolous," an ACLU lawyer told
Baynes.
Stanford Law monitors China's top court
1/10/12
Among the areas of the law that Summary Judgments confesses
to knowing absolutely nothing about, the workings of China's
Supreme Court is way up there. Until now. Stanford Law School
announced on Monday that it is launching a website of the
"guiding cases" issued by China's Supreme People's Court. While
these cases aren't precedential in the Western common law
sense, they are, subject to a November 2010 Chinese rule, to be
referred to with guidance by courts throughout the country. In
other words, China's legal system is evolving before our very
eyes, and Stanford's new website, which lists the first of
these four opinions, is there to capture that evolution. All
opinions will be translated into English to facilitate an
"ongoing dialogue" about the development of Chinese law.
Lawyers, professors and other interested parties will be
invited to comment on the implications of the cases.
SEC seeks cyber-attack risk factor
1/10/12
As the Securities and Exchange Commission asks corporate
America to pony up more info on hacking vulnerabilities, expect
to see more disclosures from big companies about the
cyber-attack risks. But companies never go lightly into the
disclosure night, and tension abounds, Bloomberg reports.
Corporations worry that shelling out info will create a roadmap
for hackers, and they are unlikely to disclose actual attacks
for fear of reputational damage. "You will see an increased
mention of cyber security risk-factors," Amy Goodman of law
firm Gibson Dunn & Crutcher told Bloomberg. "In terms of actual
cyberattacks, I think it's too early to tell." A Senate
subcommittee, meanwhile, has asked the SEC to clarify its
guidelines on disclosures. "Companies will think of every
single reason not to report these incidents, which is why the
investor side of things really needs to take control of these
issues," says a former Senate staffer.
Hedge fund biggie sanctioned
1/10/12
Yowza. We've seen some sanctions in our days, but this one
really stands out, not for the amount of the fine levied, but
the surprising nature of the alleged deed and the person who
did it. Delaware Chancery Court Judge Travis Laster last week
sanctioned hedge fund titan Michael Steinhardt for using
non-public information he gleaned during a legal battle between
the telecom companies, Occam Networks and Calix Inc., Ross Todd
at the American Lawyer reports (tipping his hat to Forbes).
Steinhardt was an investor in Occam, but had also made bets on
Calix during the two companies' takeover battle. His trades
came to light in the course of the discovery phase of the
takeover litigation, which took place in Laster's court, Todd
reports. Laster ordered Steinhardt to give up $534,000 in
profits and to report his trades to the Securities and Exchange
Commission. ("I urge the parties to double-check my math and
confer regarding how the funds should be handled," Laster
wrote, skirting the issue of who Steinhardt should pay the
money to). AmLaw reached out to Steinhardt's lawyers but didn't
hear back.
SCOTUS' recusal issue: It's back
1/10/12
The U.S. Supreme Court today is poised to hear arguments in
a crucial case over the Federal Communications Commission's
power to regulate profanity and nudity on TV. The Wall Street Journal, Washington Post, and USA Today all tell us what's at
stake in the case -- minor considerations like current
interpretation of the First Amendment; the reach of a major
government agency; and, you know, what you and your 11-your
child may watch on network TV.
But what really intrigues Summary Judgments is the question
of how many justices will sit behind the court's mahogany Bench
(yes, the "B" is capitalized in the court's official online
story) at 1 First Street Northeast. Nine? Eight? Seven?
According to the National Journal, there will be no more than
eight, and possibly as few as seven.
Justice Sonia Sotomayor will be sitting out today's case,
having an obvious conflict because she presided over case
proceedings in the 2nd Circuit Court of Appeals. It appears
that Justice Samuel Alito will be present, according to
National Journal. But there's some history there: Alito
previously owned stock in Walt Disney Company, the parent of
ABC News, a party to the case, even when he decided a previous
First Amendment case involving ABC. He's since sold the stock,
National Journal says. So we're pretty sure we're counting on
eight justices.
The constellation and number of justices who preside over a
case can greatly affect its outcome, especially when
razor-close decisions are not uncommon. That's a situation that
Chief Justice John Roberts himself acknowledged in his 2011
year-end letter, in which he defended the court's recusal
standards. "The Supreme Court consists of nine Members who
always sit together, and if a Justice withdraws from a case,
the Court must sit without its full membership. A Justice
accordingly cannot withdraw from a case as a matter of
convenience or simply to avoid controversy. Rather, each
Justice has an obligation to the Court to be sure of the need
to recuse before deciding to withdraw from a case."
We will be counting the justices at today's
arguments.
Summary Judgments for Jan. 6
Summary Judgments for Jan. 5
Summary Judgments for Jan. 4
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