By Carlyn Kolker
Here at Summary Judgments, we love circuit splits -- when
courts from different circuits differ on similar questions of
law. There's a whole blog devoted to these cases and, as we've
posted before, we are loyal readers. So, we were quite interested in a National Law Journal report on a potential split
over the constitutionality of state laws that require doctors
to show women seeking abortions sonograms of their fetuses. The
5th Circuit Court of Appeals in January upheld such a law in Texas, with some forceful input from Judge Edith Jones. The
group of medical providers challenging the law have until May to
file a petition for a hearing before the U.S. Supreme Court, the
NLJ says. Meanwhile, a district court in North Carolina has
halted the adoption of a similar law in a case scheduled for
trial next year. A portion of that case is awaiting appeal
before the 4th Circuit - setting up the possibility of a circuit
split. Walter Dellinger, a former U.S. solicitor general under
Bill Clinton is representing a group of doctors and health care
providers challenging the law, showing, the NLJ writes, "the
high profile nature of the case and its possible Supreme Court
A leopard changing its spots?
As we mentioned earlier today, the theme of today's Law Day
is "No Courts, No Justice, No Freedom," and is being promoted as
a moment when public, civilians, judges and lawyers nod to the
importance of courts in our society. This year, Law Day has an
unexpected celebrant in its midst: the U.S. Chamber of Commerce.
Though the Washington-based pro-business group in the past has
railed against so-called lawsuit abuse, for 2012, the group is
pulling out the stops to voice support for the court system.
Through its legal affiliate, the Institute for Legal Reform, the
Chamber on Tuesday issued a statement in support of the courts.
"Recent reductions in court fundings are paralyzing judiciaries
in some states and slowing the delivery of justice in others,"
the statement reads. " Delays in resolving litigation can be
devastating for businesses, causing postponement of new hiring,
restricted access to credit, and negative impacts on stock
prices and business reputation." The Institute's president, Lisa
Ricard, spoke on Tuesday at an ABA Law Day event in Washington
about court budget cuts (another participant was Linda Lipsen,
head of the trial lawyers' group American Association for
Justice). And on Wednesday the Chamber is scheduled to host
another ABA event about - guess the topic - court budget cuts,
featuring business leaders such as the general counsel of
DuPont. In January Rickard also penned a newspaper opinion piece
with ABA president Bill Robinson III called "Why underfunded
courts hurt Americans."
Adam Liptak of the New York Times doesn't write it, you
won't hear it from Summary Judgments either (at least in this
forum) and Justice Antonin Scalia has expressed his disdain for
it. What is it? A certain four-letter word that, despite its
vulgarity, has made an appearance in various Supreme Court
decisions (usually in quotation marks) and may be featured in an
upcoming opinion. The case is Federal Communications Commission
v. Fox Television, which will tackles, surprise, the
constitutionality of the FCC's indecency policy. By Liptak's
account, there is a leading scholar in the area: Christopher Fairman of Ohio State University, whose online biography
actually bills him as a scholar of "taboo language" (and you
thought you knew what you wanted to be when you grew up).
Fairman even wrote a 2007 law review article - simply bearing the one-word title of the word in question, chronicling one of
the most famous cases centering on this word in question (we
hope you've guessed it by now), Cohen v. California, a 1971 case
about a Vietnam-era protestor who was arrested for wearing a
button bearing the word, in the context of what he might want to
do to the military draft.
There is much to look forward to in the court's decision in
the Fox case; it's expected before the end of June.
Well, that was fast. On Monday we reported, via the Daily
Oklahoman, that Oklahoma Senator Tom Coburn was letting two judicial nominees languish before the Senate Judiciary
Committee. Instead of submitting a "blue slip" for Robert
Bacharach (to the 10th Circuit Court of Appeals) and for John
Dowdell (to a district court bench in Tulsa), Coburn maintained
he wanted the committee to start the process first - the reverse
of judiciary committee custom. Coburn's fellow Oklahoma
Republican senator Jim Inhofe handed in his blue slips.
But now, Coburn has reversed course and says he'll allow the
process to go ahead because he is "comfortable" with the
nominees, according to The Oklahoman, which didn't dish up any
more detail on the sudden change of heart.
This gives Summary Judgments a little bit of a flashback to
earlier this year, when New Jersey Senator Robert Menendez
refused to turn in a blue slip for 3rd Circuit Court of Appeals
nominee Patty Shwartz. After a report on the refusal surfaced in
the New York Times, Menendez met with Shwartz and reversed
Celebrating the rule of law
Hello and happy May 1 -- also known as Law Day. (Yes, we
know that it is also "May Day" -- but here at Summary Judgments
we are all law, all the time). On law day, courts, judges,
lawyers and -- gasp, civilians -- celebrate the role of law and
the rule of law in our lives. For many lawyers, such as heads of
state bar associations, this is an opportunity to get a little
PR for a topic we have covered throughout our Summary Judgments
tenure: sweeping budget cuts across the courts.
Below are a few bulletins about what's going on on Law Day,
and why. We'll have some additional coverage about an
interesting entrant in the court budget cuts later today. Please
-President Eisenhower first declared May 1 Law Day in 1958,
and Congress designated law in 1961, according to Politico,
citing www.history.com as its source. The idea for Law Day came
from the American Bar Association, Politico says.
-The theme of this year's law day is, "No Courts, No
Justice, No Freedom," a slogan repeated in opinion pieces in
newspapers around the country.
-"People take courts for granted," the Jacksonville Daily
Record quotes the Florida Bar Association president saying in an interview, "They think that like roads, they're always going to
-In New York state, the courts have "weathered the storm" of
budget cuts, state chief judge Jonathan Lippman writes in the New York Law Journal, but lawyers "shouldn't be complacent"
about their future.
-Law Day means some judges will take to the people: Ohio
supreme court justices will speak out across the state about the
rule of law and budget cuts in the state on May 1, according to television station WTRF.
Last month, we told you how New York litigator Randy Mastro
is representing a coalition of community groups to challenge some of New York University's expansion plans. Though the
coalition hasn't sued anyone (yet), it has hired Mastro, a
partner at Gibson, Dunn & Crutcher, just in case it does.
Mastro has a penchant for getting involved in litigious
civic matters against the Bloomberg administration. He has, for
example, represented groups opposed to the building of a stadium
on Manhattan's far west side; groups challenging the city's plan
to build a city jail on a waterfront property; and politicians
opposed to extending mayoral term limits in New York City.
"We've been doing cases involving challenges to government
actions for the past decade," Mastro told me in an interview.
Today we bring you another update on Mastro's busy practice:
He's representing the Taxicab Service Association, a group of
credit unions that lend money to finance yellow taxi medallions.
The association is suing Mayor Mike Bloomberg over his plan to
allow livery car services to pick up street passengers. (Note to
loyal readers outside New York City: yellow taxis are the yellow
cars you see in TV shows and movies; livery cars are typically
black town cars that can only be called, and not hailed on the
Mastro's complaint, filed in state court in Manhattan,
comes on the heels of a similar lawsuit brought by a group of
fleet owners. Both argue that a state law authorizing the taxi
plan violates New York state's constitution. The law and a
planned auction of more medallions could "fundamentally change
the industry in ways that would have drastic consequences,"
Mastro told me in a phone conversation.
In a statement, the city's law department said, "This
program was developed after careful consideration and will bring
much-needed taxi service to residents in the outer boroughs. We
are confident that it meets all legal requirements and will be
upheld in court."
Summary Judgments for April 30
Summary Judgments for April 27
Summary Judgments for April 26
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