By Carlyn Kolker
Tennessee stakes out recusal grounds
1/9/12
It has been nearly three years since the U.S. Supreme
Court's decision in Massey v. Caperton, where the court ruled
that a judge should have recused himself in a case involving a
campaign supporter. The case paved the way for states to adopt
stronger recusal rules and procedures in cases where a judge's
impartiality is questioned. But as of last June, only nine
states had adopted changes to their codes, according to a
report from the Brennan Center For Justice, a legal institute
that's part of New York University School of Law.
Now, make that ten: last week the Tennessee Supreme Court,
in an 83-page order (with comments appended), approved a new
set of recusal rules for judges in that state. Among other
things, the order requires that judges must disqualify
themselves if their impartiality "might reasonably be
questioned" -- such as when the judge has a personal bias in a
case or against a lawyer; the judge's spouse or close relative
has a stake in the case; or a party has made monetary
contributions to the judge. In other words, while the Tennessee
rule notes that a campaign contribution can give rise to
disqualification request, the state doesn't put a pricetag on
that contribution.
Another facet of the new rule is that judges also must give
written explanations when they deny a motion for
disqualification.
Of course there are probably as many ways of dealing with
judicial recusal as there are states. New York, for example, as
Summary Judgments reported, last year adopted a hard-and-fast
rule saying judges in the Empire State will be automatically
disqualified from cases in which individuals have given at
least $2,500 in the previous two years to their campaigns.
Which raises the question: Is it better to have a threshold
contribution level triggering disqualification, like New York,
or go the Tennessee way, setting more flexible groundrules?
I caught up with James Sample, a professor at Hofstra Law
School who studies judicial elections and the courts, who noted
that, while bright-line rules like New York's may provide some
clarity to litigants, there are reasons to have more elastic
rules, too.
"One size doesn't fit all in the real world," said Sample.
A $500 donation to a judge in a case with $1 billion is
unlikely to make much of a difference, noted Sample. By
contrast, a small donation to a judge in a small town can be
more persuasive.
Sample says that, against the backdrop of expensive
political campaigns, states are now taking up Supreme Court
Justice Anthony Kennedy's invitation in Caperton to promulgate
their own rules on judicial recusal, setting the bar higher.
"States are finally paying attention," said Sample. "It's
federalism at work. The Supreme Court in Caperton said 'this is
the floor,' [in terms of recusal standards] and states are free
to do more. And now states are doing more."
Tennessee's new rules go into effect in July.
High stakes in a Johnson & Johnson trial
1/9/12
To note that a lot is at stake in the off-label marketing
case against a unit of Johnson & Johnson would be an
understatement. In a trial that starts today, Texas is seeking
more than $1 billion in damages over the pharma company's
alleged illegal marketing of an anti-psychotic drug. What's
more, if J&J loses, other related lawsuits could follow,
according to Bloomberg. Pharma cases in general and off-label
marketing cases in particular can produce staggering verdicts.
J&J, for example, was ordered to pay $327 million in a similar
case in South Carolina. It faces trials in other states, too,
including one in Arkansas in March.
If J&J loses, stockholders could sue the company saying it
should have settled, Bloomberg quotes Patrick Burns from
advocacy group Taxpayers Against Fraud as saying.
The J&J has denied wrongdoing and told Bloomberg it has
"policies in place to ensure that our products are only
promoted for their FDA-approved indication."
Meanwhile readers can watch coverage on the trial at
Courtroom View Network's website, www.courtroomview.com;
coverage will be available through a secure password. "A trial
involving these issues and parties should be as publicly
accessible as possible," CVN wrote in a letter to the court
requesting the ability to stream live coverage.
Searched and Seized
1/9/12
It looks like counterfeiters are sending fewer big ticket
knock-offs and more tchotkes and incidentals through U.S.
ports. Though customs officials seized 24 percent more items in
2011, the value of the merchandise dropped 5 percent from a
year earlier, U.S. Customs and Border Protection and
Immigration and Customs Enforcement said in a report released
today. The hot category was pharmaceutical and perfumes (yes,
that appears to be a joint category), with a 148 percent
increase in the value of these items seized. The country of
origin that shipped the most pirated goods was China, with 62%
of all good seized coming from that country, ICE
said.
Remembering Judge Roll
1/9/12
Arizona this weekend remembered U.S. District Judge John
Roll, the Tucson federal judge who was killed in the shooting
that injured Congresswoman Gabrielle Giffords. Roll, you may
recall, had stopped by the grocery store where Giffords was
visiting to thank Giffords for advocating for more judicial
resources for Arizona's federal courts, which are jammed with
immigration cases. At a special court session on Friday, Roll
was honored by colleagues, who read letters from Supreme Court
Chief Justice John Roberts, U.S. Senator John McCain and former
Supreme Court Justice Sandra Day O'Connor. A new courthouse in
Yuma, Arizona will be named for Roll, The Republic reports.
Summary Judgments has previously reported that Roll's vacancy
was filled in October, when the Senate confirmed Jennifer
Zipps, formerly a U.S. Magistrate Judge, a small step of
progress on judicial confirmations.
Connecticut and the death penalty
1/9/12
The death penalty in Connecticut has been applied in an
arbitrary and discriminatory fashion, according to a study by
Stanford Law professor John Donohue. Donohue, formerly of Yale,
studied every case in Connecticut that was eligible for the
death penalty since 1973, when the state enacted its current
death penalty law, as Lincoln Caplan reports in a New York Times opinion piece. To analyze the system, Donohue first
looked at who was charged for death-penalty cases and who was
not. His conclusion: a third of cases that could have been
charged as capital cases were not. Next, he assembled what he
called an "egregiousness" rating system to gauge the
seriousness of the 205 Connecticut murder cases that were
eligible for the death penalty, taking into account factors
such as the severity of the crime, how much the victims
suffered, the defendants' culpability and the number of
victims. Donohue and his team of researchers concluded that the
nature of the crime, or its egregiousness, did not determine
whether the death penalty - as opposed to life without parole -
was meted out. Rather, race and geography were primary factors,
Donohue concluded. Connecticut's system is a violation of the
U.S. Supreme Court's 1972 decision in Furman v. Georgia, which
said that a state must have a "meaningful basis" for
determining whether a capital sentence is imposed over those
cases in which death sentences are not imposed, writes Caplan.
Summary Judgments for Jan. 6
Summary Judgments for Jan. 5
Summary Judgments for Jan. 4
Follow us on Twitter: @ReutersLegal