By Carlyn Kolker
Paul Clement's niche practice
We've written before about Paul Clement, a former U.S.
solicitor general who is carving out something of a niche
practice working on behalf of conservative causes.
He is, for example, representing the states suing the
administration over the health care law before the U.S. Supreme
Court next month. A new Clement case caught our eye on
Wednesday, when the attorney general of South Carolina sued the
Obama administration over its decision to block a voter
identification law in that state, as Reuters reported. The Obama
administration says the South Carolina law would unfairly impede
minority groups' ability to vote. According to the complaint,
filed in federal district court in Washington, Clement is
representing South Carolina. We reached out to him through
Bancroft Pllc law firm in Washington, where he is a partner, but
didn't immediately hear back.
Arm-chair quarterbacking the Prop 8 decision
We reported on the pre-game show in the Prop 8 decision -
the hype before the highly-anticipated ruling from the 9th
Circuit about the constitutionality of California's ballot
measure that had banned same-sex marriage. (In case you missed
it, the 9th Circuit, in a 2-to-1 decision, upheld a district
court's decision striking down the law). And now, we give you
the post-game show: the rehashing, interpretations,
Monday-morning quarterbacking that is coming from the elite
ranks of society: law professors.
-Judge Stephen Reinhardt, who penned the majority decision
handed down on Tuesday, offered narrowly-tailored judicial
reasoning. He tamed the voice of the "liberal lion" that has
typically roared, writes Garrett Epps of the University of
Baltimore in the liberal-leaning American Prospect online. While
Reinhardt's opinions are typically progressive, his opinion on
Tuesday showed dovish restraint -- likely shown to gain allies
at the Supreme Court, says Epps.
- The U.S. Supreme Court is likely to uphold the 9th
Circuit's ruling, writes Erwin Chemerinsky, dean of the
University of California, Irvine School of Law in an opinion piece in the Los Angeles Times. Chemerinsky argues that the
government doesn't have an interest in prohibiting same-sex
marriage; he also attempts to address what supporters of Prop 8
see as a major flaw in the court's decision: that the law was
enacted by referendum, reflecting the will of the people. Even
so, "it is a crucial judicial role to interpret the Constitution
and to remedy unjust discrimination and violations of rights,"
-Writing in his self-titled Volokh Conspiracy blog,
University of California law professor Eugene Volokh says the
Ninth Circuit "erred" in its use of the "rational basis
standard" to strike down the law. "Under the rational basis test
that the Ninth Circuit is purporting to apply, a court must
uphold a law so long as it rests on a plausible view of the
facts, regardless of whether the judges agree with the lawmaker
on those facts," Volokh writes. When he notes that "I on balance
think that recognizing full same-sex marriage is a good policy"
-- he is, like any good law professor - picking apart the Ninth
-The Ninth Circuit's decision is "dishonest and foolish"
because it relies on but misrepresents the U.S. Supreme Court
precedent in the 1996 case Romer v. Evans - writes Brooklyn Law School professor Jason Mazzone in the Balkinization blog. The
Romer opinion, which was written by Supreme Court Justice
Anthony Kennedy, struck down a Colorado constitutional amendment
that barred local laws prohibiting discrimination on the basis
of sexual orientation. "The problem is that Proposition 8 is
nothing like [Colorado's] Amendment 2 in Romer," Mazzone writes.
Prop 8 took away rights that the California Supreme Court had
ruled were required by the state's constitution; Romer, by
contrast, pertained to a state constitutional amendment that
eliminated protections gained through the political process .
"Romer doesn't stand for the freewheeling proposition that if
the state gives you something it can't take it away," writes
Mazzone. The 9th Circuit decision could have gone much farther,
Mazzone writes. "The panel could have written a powerful opinion
setting out why a ban on same-sex marriage violates the Equal
Protection Clause of the Fourteenth Amendment," Mazzone says.
Allowing the media in juvenile court
Last week Summary Judgments posted about a rare move in the
Los Angeles County courts to allow the media to attend juvenile
Last week's ruling, which cited the need for more
transparency in the areas of child abuse, foster care and
adoption, has already had an effect, the Los Angeles Times reported on Tuesday. In one courtroom in Monterey Park,
California, a judge opened up a proceeding involving a young boy
who allegedly had been abused. The boy was taken from his
parents and the judge chastised a social worker for being slow
to find him an adoptive home. In another courtroom with another
judge, proceedings were halted as the judge tried to determine
whether news media should be present.
"Children's court is an insular judicial world that has been
criticized by parents for too often trampling their rights and
by children's advocates for inadequately protecting young people
at risk from potentially harmful living situations," the Times
While the media had battled for years for certain juvenile
proceedings to be opened up, not everyone is in favor. The
Children's Law Center, which represents about 25,000 children in
juvenile cases in LA County, has sued to overturn the
open-access ruling, saying it tramples on children's privacy and
"puts the needs and interests of the public and the media ahead
of the victims of child abuse and neglect," the Times reports in
a separate article on Tuesday.
Isn't there some legal tenant that says you can't put a dead
person on trial? Or, maybe common sense? Russia says it will
posthumously try Sergei Magnitsky, a lawyer accused of tax
evasion, the New York Times reports. Magnitsky died in pre-trial
detention in 2009 and his family and human rights officials have
blamed the 37-year-old's death on poor prison and medical
As part of the same tax evasion case, Russian officials also
plan to try, in absentia, William Browder, the chief executive
of Hermitage Capital, Magnitsky's former employer. Browder
resides in London. Russian officials have said the trial would
give Magnitsky's relatives a chance to clear the family name.
Browder, on the other hand, counters that the case is intended
to intimidate Magnitsky's family so they do not press for
charges against officials involved in his imprisonment. The
Times reached out to the Russian Interior Ministry, which is
prosecuting the case, but didn't hear back.
Mandatory minimum sentences can produce extremely-long terms
Mandatory minimums can mean lengthy sentences for
gun-related crimes, as Philadelphia's track record shows. The
city leads the nation in convictions under a section of the
federal criminal code that makes it a crime to use a gun while
committing another act of violence, the Philadelphia Inquirer reports. In trying to understand the phenomenon, The Inquirer
looks at the case of LaRue Smith, a Philadelphia man who
committed a dozen robberies, was convicted by a federal jury (he
didn't take the plea bargain offered him) and was sentenced to
232 years in prison.
While the newspaper doesn't come to any hard conclusions,
one suggestion is that local prosecutors have little sympathy
for defendants: U.S. Attorney Zane Memeger notes they can take
the pleas offered them, rather than risk the penalties if they
are convicted under mandatory minimum laws. As the Inquirer
observes, Smith will never get out of prison - there's no parole
in the federal system - and he'll likely cost the state more
than $1 million for his incarceration.
Mandatory minimums have seen some examination in the last
several years. Following the 2010 passage of the Fair Sentencing
Act (which eliminated mandatory minimums for crack sentences)
Reuters reported in November that an estimated 12,000 inmates
convicted of crack cocaine offense became eligible for sentence
reductions. Apparently mandatory sentences for gun-related
crimes have not received such scrutiny.
Summary Judgments for Feb. 7
Summary Judgments for Feb. 6
Summary Judgments for Feb. 3
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