By Carlyn Kolker
Argument Preview: A lawyerly case
Lawyers, listen up: On Tuesday, the Supreme Court will be
taking up a case that directly affects lawyers. In Filarsky v.
Delia, the court will grapple with the question of whether an
external lawyer who is hired by a government agency can enjoy
the same immunity as state employees. The case stems from a
dispute in California. After the City of Rialto suspected a
firefighter employee of taking too much sick time, it hired
attorney Steve Filarsky to investigate. Eventually the
firefighter sued the city and Filarsky, saying his
constitutional rights had been violated during a home
inspection that was part of the investigation. The 9th Circuit
Court of Appeals ruled that the case against Filarsky - and
only Filarksy - could go forward.
No surprise, but the American Bar Association has weighed
in vigorously to support Filarsky. The ABA says in an amicus
curiae brief that the 9th Circuit decision "will impose new and
potentially significant liability risks on private counsel that
will seriously impact the vital contributions they make." The
U.S. government also submitted an amicus brief, saying that the
federal government "has an interest in ensuring that private
contractors and volunteers acting on its behalf are able to
serve the public good effectively and without undue fear of
What does the Senator from New Jersey have in mind?
New Jersey Senator Bob Menendez is going to meet with U.S.
Magistrate Judge Patty Shwartz, a nominee to the Third Circuit
Court of Appeals whose nomination Menendez has been accused of
holding up. The New York Times (among others) has reported that
Menendez, a Democrat, has held up Shwartz's nomination because
Shwartz's companion, a federal prosecutor in New Jersey, was
involved in a political corruption inquiry of Menendez. Roll
Call however reports today that Menendez says he hasn't
approved of Shwartz because he was dissatisfied with answers
she gave him in a previous meeting about the Supreme Court's
ruling in the Citizens United case. The ruling, which allowed
corporations and unions to spending freely in elections, has
sparked a firestorm on the left.
But Menendez's office's comments got us thinking. What kind
of questions will he be asking of Shwartz, in particular about
Citizens United -- and what kind of answers does he really
expect? Judicial nominees usually trip all over themselves not
to delve into specifics about the legal precedent that will
come before them. Take Supreme Court Justice Elena Kagan's
confirmation hearings in 2010. Under repeated questioning from
Senators about major court decisions, Kagan repeated a
variation on "Once a court decides a case as it did, it's binding precedent."
Lower court nominees sound a similar trope, and the
archives of Senate judiciary committee testimony is filled with
nominees' pro-forma responses about judicial precedent. Take
controversial nominee Goodwin Liu's answer to a question on
reigning precedent: "Even in a novel case, a circuit court
judge must take his guidance from the Supreme Court and lacks
authority to improvise his own approach to deciding legal
issues," he wrote in a judiciary committee questionnaire.
(Liu's nomination was blocked by Senate Republicans, but he is
now a justice on the California Supreme Court).
Of course, we'll never know what Shwartz says to Menendez
in a private meeting. But we have a pretty good idea what kind
of response she'll give on Citizens United -- and other Supreme
Court decisions -- in a judiciary committee questioning. If, of
course, Menendez let's her get that far.
Barbour's new stomping grounds
Haley Barbour is now perhaps best known as the former
governor of Mississippi for granting a raft of controversial last-minute pardons to convicted criminals. But he's also a
lawyer and apparently is joining the Mississippi law firm
Butler, Snow, O'Mara, Stevens and Canada. We're intrigued
Barbour joining a law firm? What will he be doing, and what's
the shop that's welcoming its arms to him?
According to Butler Snow's press release, Barbour, who
earned his a law degree from the University of Mississippi Law
School, will be providing "leadership to the firm in the areas
of economic development, government relations, strategic
planning and business development." He will be joined at Butler
Snow by his former chief of staff Paul Hurst, a firm alum, and
will also be heading his own lobbying group, jetting off for
speaking tours and writing a book about his leadership during
Butler Snow, a general practice firm which is based in the
greater Jackson area and has offices throughout the south,
appears to have longstanding ties to Barbour. The leader of its
public policy practice group is also a former chief of staff to
Barbour. In 2008 the firm represented Barbour in a dispute with
Mississippi Attorney General Jim Hood over the special election
to fill the Senate seat of former Senator Trent Lott.
We reached out to Butler Snow chairman Donald Clark Jr. to
ask a little more about how the firm snared Barbour, but we
didn't immediately hear back.
Behind the Bankruptcy Numbers
Bankruptcy filings were down about 12 percent in 2011 and
the New York Times' Dealbook tries to puzzle through the
numbers. There have been declines in both Chapter 7
bankruptcies (allows personal bankruptcy after a means test)
and Chapter 13 (which allows filers to repay debts over a
scheduled time frame). But that is not necessarily good news,
says Professor Robert Lawless, a law professor at the
University of Illinois College of Law (with a name like that,
how could you not be a lawyer?) If people can simply put their
debts on a credit card, they can avoid bankruptcy. Welcome to
the American way.
In an analysis of federal court statistics at the end of
his annual report on the judiciary, U.S. Supreme Court Justice
John Roberts also noted that bankruptcy filings were down,
having dropped off in 87 of the 90 bankruptcy courts around the
All in the timing
It was bound to happen. The Justice Department on Thursday
released a previously-confidential memo detailing the Obama
administration's legal justification for the recess appointment
of Richard Cordray to the Consumer Financial Protection
Bureau, as well as the appointments of three members of the
National Labor Relations Board. Already, at least one
opposition group is pouncing on the memo.
The American Center for Law and Justice, a Washington-based
conservative-leaning legal group, has a detailed explication of
the 23-page memo, noting in particular that the memo was
written two days after the appointments were actually made, and
that the administration itself says the legal issue is a "novel
The criticism comes against the backdrop of an
ever-higher-fever pitch of opposition to the appointments,
Cordray in particular. On Wednesday, the Washington Post,
tipping its hat to Roll Call, reported that at least 70 House
Republicans are issuing non-binding resolutions condemning the
And also Wednesday, Bloomberg carried a piece noting a top
Citigroup Inc. lobbyist's opposition to Cordray's appointment;
the lobbyist, Candida Wolff, noted that "legal challenges to
the appointment are likely to come from every quarter."
We predict some more action, faster than you can say "the
business lobby will file a lawsuit."
Summary Judgments for Jan. 12
Summary Judgments for Jan. 11
Summary Judgments for Jan. 10
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