Archive | March, 2010

It’s Spring, So It’s Time for a Romantic Story About Love and Marriage

The story — let us all learn and profit by it — is in Hall v. Maal (Fla. Ct. App. Mar. 30) (en banc). The short version: If you don’t get a marriage license — because a week before the wedding, the groom told the bride “that they were not going to be able to get a marriage license because they had not agreed on the pre-nuptial agreement” — but go through the whole ceremony, live together as husband and wife, have children, and so on, you’re still not married, at least in Florida.

To depart from the requirement to have a license re-creates common-law marriage as abolished by section 741.211 [“No common-law marriage entered into after January 1, 1968, shall be valid, except that nothing contained in this section shall affect any marriage which, though otherwise defective, was entered into by the party asserting such marriage in good faith and in substantial compliance with this chapter.” -EV] ….

[Both parties] were aware that to become married in Florida they were required to appear before the clerk of the court together and apply for and receive a marriage license…. Although there is little doubt that [the woman] genuinely wanted to be married, she could not have reasonably believed she achieved that aim after engaging in a wedding ceremony in full knowledge that neither [party] had ever applied for a marriage license….

“The parties were not in substantial compliance with Chapter 741…. [I]n order for there to be substantial compliance, there has to be some compliance. Some compliance would, at a minimum, entail the parties applying for and receiving a license.

Some judges dissent, arguing (among other things) that “The Legislature did not prohibit marriage without a license; instead, it created a type of registration to ensure certain criteria are [...]

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Moot Court

An interesting thought about moot court, from Prof. Ken Gallant (which was posted to a lawprofs’ discussion list, and which I repost here with his permisison):

I sometimes coach moot court teams and participate as a judge in mooting teams. HOWEVER, I do believe that moot court is exceptionally unrealistic training for actual appellate advocacy in the common law system.

1. The records are grotesquely unrealistic. Effectively they are not records at all, in most cases. As a result[:]

2. Argumentation from facts as proven by evidence — the heart of most appellate cases — simply is not modeled by moot court.

3. For decades, the brief has been the most important part of the appellate advocacy process in the US. The moot court system vastly overvalues oral argument in its judging structure.

4. The moot court rules effectively make it impossible for the teaching function to occur at the brief writing stage. [There’s a good reason for this — it’s called the epidemic of “cheating” that occurred some decades ago. And I certainly can’t figure out a way to allow the teaching function to occur here without risking the likelihood that arguments will actually come from faculty rather than students.] All the teaching value effectively goes into the oral argument stage.

In my view, there is a better way to teach appellate advocacy as it exists in our system. It’s called the Appellate Clinic, where students actually write briefs and present oral arguments in appellate cases. Many state supreme courts and a number of US Circuits have programs to encourage law school participation in this type of thing.

I haven’t closely followed the debates about Moot Court (though I know that my former boss, Judge Kozinski, has strong views on the subject), so I’m not sure how sound [...]

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Obama Compromises on Off-Shore Drilling

Kudos to President Obama for agreeing to open up some areas for off-shore drilling (though not nearly as much as we need). This appears to be a significant step in the right direction. In the summer of 2008, candidate Obama hinted that he might be willing to do this, but by inauguration last year he was not saying much that would give one hope for change on this issue.

One must still be cautious about whether there has been real change: the proof will come in the actual granting of permits to drill and open up new wells. I remember advocates of strict gun control arguing that “restrictive licensing” was more effective than a complete ban because restrictive licensing seemed more open to gun ownership or carrying, but in practice almost no one could get a permit. On drilling, time will tell.

UPDATE: According to Robert Costa, Sen. Bob Bennett says that the Administration’s openness on drilling is a sham:

While the administration may act like it is moving to the political center on energy, Bennett says that “tucked away in the language of its policy are countless actions that make it all the more difficult” for exploration. “Just look at what’s happening in Utah,” he says. “I’m trying to push Secretary Salazar in our direction. He keeps telling us that the administration is interested in natural gas, yet there is always some regulatory or legal hang-up that’s cited to keep anything from moving forward. They’re not serious about this. They want to implement onerous regulations. Same goes for coastal exploration.”

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Why Would Congress Question Corporate Executives About Disclosures of Health Care Costs?

Megan McArdle has a good post on Congress’s decision to hold hearings about corporations’ disclosing their charges against earnings based on estimates of health care costs:

The Democrats, however, seem to believe that Generally Accepted Accounting Principles are some sort of conspiracy against Obamacare, and all that is good and right in America.

Here’s the story: one of the provisions in the new health care law forces companies to treat the current subsidies for retiree health benefits as taxable income. This strikes me as dumb policy; there’s not much point in giving someone a subsidy, and then taxing it back, unless you just like doing extra paperwork. And since the total cost of the subsidy, and any implied tax subsidy, is still less than we pay for an average Medicare Part D beneficiary, we may simply be encouraging companies to dump their retiree benefits and put everyone into Part D, costing us taxpayers extra money.

But this is neither here nor there, because Congress already did it. And now a bunch of companies with generous retiree drug benefits have announced that they are taking large charges to reflect the cost of the change in the tax law.

Henry Waxman thinks that’s mean, and he’s summoning the heads of those companies to Washington to explain themselves. It’s not clear what they’re supposed to explain. What they did is required by GAAP. And I’ve watched congressional hearings. There’s no chance that four CEO’s are going to explain the accounting code to the fine folks in Congress; explaining how to boil water would challenge the format.

Fair enough. But I’ll bet that there will both a few moments of effective Congressional demagoguing and a few moments when the corporate officials are successful in depicting that the hearings are a farce and that corporate [...]

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The Second Amendment and People with Medical Marijuana User Cards

The AP reports that Steve Sarich — who “runs CannaCare, an organization that claims 7,000 members in the state,” which among other things “provides patients with marijuana clones or starter plants and delivers about 50 patients a week with usable marijuana” — has been told by the King County Sheriff’s Office that he may not buy a gun.

The federal law underlying the prohibition is 18 U.S.C. § 922, which bars possession of guns by (among others) anyone “who is an unlawful user of or addicted to any controlled substance,” and bars transfers of guns to such people. The sheriff’s office reported that the FBI’s National Instant Criminal Background Check System “informed us that possession of a medical drug card is sufficient to establish an inference of current use,” and that therefore the sheriff’s office can’t approve the transfer of a gun to Sarich.

Sarich had been trying to buy guns to replace ones seized by investigators who were investigating a burglary and attempted robbery at Sarich’s home; Sarich had shot one of the robbers. Sarich is also being investigated by the Sheriff’s Office “for potential violations of the state’s medical-marijuana law.” The sheriff’s office “insists he was making a handsome profit selling marijuana and starter plants and charging patients for attending the clinics,” and claims that Sarich has had many more plants than he is allowed to possess under state law. But the ostensible reason for the background check coming up with a no-sale result was the possession of the card, not any past conviction — Sarich has not been convicted of the drug crimes that the sheriff’s department is investigating.

Possession of marijuana remains a crime under federal law, notwithstanding any state law exceptions for medical use. The Second Amendment question, I take it, is whether people [...]

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(Continuing) Speculation About Authorship of Remaining October Supreme Court decisions

With today’s decision in Padilla v. Kentucky, there are only three cases undecided from the Supreme Court’s October sitting: United States v. Stevens, 08–769 (the First Amendment challenge to the federal prohibition on depictions of animal cruelty); Salazar v. Buono, 08–472 (involving an Establishment Clause challenge to a cross used in a war memorial that Congress later transferred to a private entity); and Perdue v. Kenny A., 08–970 (involving whether a reasonable attorney’s fee award under a federal fee-shifting statute ever can be enhanced based solely on the quality of performance and results obtained when those factors already are included in the lodestar calculation). And there are two Justices remaining without a majority opinion from that sitting: the Chief and Justice Kennedy.

In light of Justice Stevens’ (sort of) anticipated authorship of Padilla, I’ll stick with the predicted authorships of my last post on the subject: Justice Kennedy will be writing an opinion invalidating the law in Stevens, the Chief will write Buono, and Justice Ginsburg will handle Kenny A (unless respondents lose, in which case Alito may get the nod).  Which means either the Chief is performing a Rehnquistian damage-limitation role and holding his nose to write an opinion that he doesn’t really agree with (see, e.g., Dickerson v. United States), or the government has some good news coming to it.  (Of course, that’s assuming there hasn’t be a change of votes post-conference.)

 But again, that opinion is worth slightly less than you paid for it. [...]

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Interesting SCOTUS Line-Up

Today the Supreme Court released its opinion in Shady Grove Orthopedic v. Allstate Insurance.  The case concerns whether state law can preclude a federal court from considering a class-action when the federal court is exercising diversity jurisdiction over a case that primarily raises state law claims.  I’m sure others will have plenty to say on the import of the Court’s holding.  For now I just thought I’d note the interesting line-up:  Justice Scalia announced the judgment of the Court.  His opinion was joined (in whole or in part) by the Chief Justice and Justices Stevens, Thomas, and Sotomayor.  Justice Stevens wrote an opinion concurring in part and concurring in the judgment.  Justice Ginsburg dissented, joined by Justices Kennedy, Breyer, and Alito.

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Communicating With Those Who Have No Privacy Rights: The Hard Question in City of Ontario v. Quon

On Monday, April 19, the Supreme Court will hear oral argument in this Term’s only significant Fourth Amendment case, City of Ontario v. Quon. Quon considers whether a city violated the Fourth Amendment by obtaining copies of stored text messages sent over a city-provided text pager used by a city employee. In an earlier post, I explained that the Petitioner’s merits brief made the stakes of Quon a lot lower than some had expected: The brief was drafted narrowly to avoid the question of whether the Fourth Amendment applies to text messages generally, and instead focuses specifically on how much notice is required for government employees to waive their rights.

I’ve now had a chance to look through the rest of the briefs in Quon, and I think the really interesting and important issue in the case is one that hasn’t received much attention before. While in the past I have focused on whether the government access violated the rights of the government employees who were assigned the pagers (here, Jeff Quon), I now think that the really juicy questions in the case involve whether the access violated the rights of the individuals with whom those employees were texting (here, Jerilyn Quon, April Florio and Steve Trujillo). That is, the really key question isn’t whether the government access violated the rights of the government employee who had received notice; Rather, it was whether the government access violated the rights of the folks on the other end of the communications. In this post, I want to explain why this is a tricky problem and what I think the Court should do with it.

I. The Problem

To understand the issue in Quon, you need to know a bit about how the Fourth Amendment applies to some earlier [...]

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“Population of the 24 Urban Places [in the U.S]: 1790”

From the Census site:

Rank Place Population
1 New York city, NY 33,131
2 Philadelphia city, PA 28,522
3 Boston town, MA 18,320
4 Charleston city, SC 16,359
5 Baltimore town, MD 13,503
6 Northern Liberties township, PA 9,913
7 Salem town, MA 7,921
8 Newport town, RI 6,716
9 Providence town, RI 6,380
10t Marblehead town, MA 5,661
10t Southwark district, PA 5,661
12 Gloucester town, MA 5,317
13 Newburyport town, MA 4,837
14 Portsmouth town, NH 4,720
15 Sherburne town (Nantucket), MA 4,620
16 Middleborough town, MA 4,526
17 New Haven city, CT 4,487
18 Richmond city, VA 3,761
19 Albany city, NY 3,498
20 Norfolk borough, VA 2,959
21 Petersburg town, VA 2,828
22 Alexandria town, VA 2,748
23 Hartford city, CT 2,683
24 Hudson city, NY 2,584
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Unexpected Flight Delay => Hotel Stay => Criminal Prosecution for Gun Possession

An unfortunate story, detailed in Revell v. Port Authority (3d Cir. 2010): Gregg C. Revell was flying from Salt Lake City to Allentown, Pennsylvania, via Minneapolis and Newark. He had an unloaded gun legally checked in his luggage, which was supposed to meet him at Allentown.

Supposed to. In fact, the flight to Newark was late, so Revell missed his connection. He booked himself on the next flight, but the airline changed those plans. He was supposed to get on a bus, but his luggage didn’t get on the bus with him. He found the luggage, but the bus had left, so he had to stay overnight at the hotel, with his luggage.

Aha! That’s where the crime came in. The Firearms Owners’ Protection Act protected Revell on the plane, and would have protected him on the bus. But the moment the luggage came into his hands or otherwise became “readily accessible” to him outside a car — here, when he got the luggage to go to the hotel, but it would have also happened if he had gotten the luggage to put it into the trunk of a rental car — he violated New Jersey law, which requires a permit to possess a handgun (and which bans the hollow-point ammunition that Revell also had in a separate locked container in his luggage). Revell was arrested when he checked in with the luggage at Newark Airport, and said (as he was supposed to) that he had an unloaded gun in a locked case in his luggage; he then spent four days in jail until he was released on bail. Eventually the New Jersey prosecutor dropped the charges against him, but Revell didn’t get the gun and his other property back until almost three years later.

Revell sued, and lost; the [...]

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“We have to pass the bill so that you can find out what is in it” (continued)

I mean this in less snarky way than the title of this post suggests, but I continue to be surprised by some of what worked its way into the health care reform bill.

Today the Supreme Court held 7-2 in an opinion by Justice Stevens that 31 U.S.C. 3730(e)(4)(A), a provision of the False Claims Act that bars qui tam actions that are based upon the public disclosure of allegations of fraud against the government in (among other things) “a congressional, administrative, or [GAO] report, hearing, audit, or investigation,” includes state and local administrative hearings, audits, or investigations, and not just federal ones.   But tucked away in a footnote is notice that the holding of the case (Graham County Soil & Water Conservation District v. United States ex rel Wilson, 08-304), will have limited application going forward:

On March 23, 2010, the President signed into law the Patient Protection and Affordable Care Act, Pub. L. 111–148, 124 Stat. 119.  Section 10104(j)(2) of this legislation replaces the prior version of 31 U.S.C. §3730(e)(4) with new language.  The legislation makes no mention of retroactivity, which would be necessary for its application to pending cases given that it eliminates petitioners’ claimed defense to a qui tam suit. See Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U. S. 939, 948 (1997).

The health care reform law changes the relevant text to provide for dismissal of a qui tam action based on a public disclosures “in a congressional, [GAO], or other Federal report, hearing, audit, or investigation.”  Thus, it essentially overrules today’s decision.  The amendment also eliminates the old language, under which a court would not have jurisdiction over a case based on a public disclosure, to simply state that a court shall dismiss an action, unless [...]

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