It was clear the justices on the Wisconsin Supreme Court were divided, and disagreed sharply over how to resolve litigation over the passage of controversial legislation curtailing public employee collective bargaining rights. But things in chambers apparently got even more heated than many realize. The Journal-Sentinel reports that an argument among some of the justices […]
Author Archive | Jonathan H. Adler
Is There a First Amendment Right of Access to Material Witness Proceedings?
Yesterday, in United States v. Brice, the U.S. Court of Appeals for the D.C. Circuit turned away a convicted defendant’s effort to unseal the records of material witness proceedings that were referred to during his sentencing hearing. Even assuming there was a “qualified” First Amendment right of access to material witness proceedings the Court held […]
Would the REINS Act Rein In Federal Regulation?
I have an article in the new issue of Regulation on the REINS Act, which would prevent major regulations from taking effect without the passage of a joint resolution of approval by Congress. The article is largely based on my Congressional testimony about the Act, and summarizes the arguments for and against the measure. My […]
Circuit Split Over Speech and Debate Clause
Yesterday, the U.S. Court of Appeals for the Ninth Circuit rejected former Representative Richard Renzi’s effort to escape prosecution for alleged quid pro quo corruption. Rep. Renzi claimed he was immune from prosecution under the Constitution’s the Speech and Debate Clause. Specifically, Rep. Renzi claimed the federal government sought to prosecute him for privileged “legislative […]
A Variety of 5-4 Opinions
Bullcoming v. New Mexico was not the only 5-4 decision handed down by the Court today — and it did not present the only 5-4 lineup. Here are the others. In Stern v. Marshall, the latest installment of the Ana Nicole Smith inheritance saga, the Court split along traditional ideological lines, with the conservatives prevailing. […]
Formalists Prevail in Bullcoming v. New Mexico
Among the six merits opinions released by the Supreme Court this morning was Bullcoming v. New Mexico, a Confrontation Clause challenge to the admissability of a forensic report without calling the author of the report to testify. This was a significant case for Court watchers because the case raised issues that have divided the Court […]
NLRB To Accelerate Union Elections
The National Labor Relations Board is proposing new regulations to accelerate the pace of union organizing elections. As the Washington Post reports: The board is proposing to streamline a union election process that currently has workers vote within 45-60 days after a union gathers enough signatures to file a petition, a time many companies use […]
An Environmental Grant
Most eyes have focused on the Supreme Court’s recent decisions in Wal-Mart v. Dukes and AEP v. Connecticut. Yet the Court has also continued to grant additional cases for next term. Among Monday’s grants was PPL Montana PLC v. Montana, the first (and thus far only) environmental case on the docket for OT 2011. It’s […]
Olson and Elwood on Wal-Mart v. Dukes
Overlawyered‘s Walter Olson comments on the implications of Wal-Mart v. Dukes in the Philadelphia Inquirer. Here’s his conclusion: This week’s decision will make it harder, though not impossible, to apply class actions to employment-discrimination cases in which cash damages are the main point. (As the court noted, though, class treatment is still more liberally available […]
Thoughts on AEP v. Connecticut
As I noted below, today in American Electric Power v. Connecticut the Supreme Court held unanimously that the Clean Air Act displaces federal common law public nuisance claims against emitters of greenhouse gas emissions. It was easy for the justices to agree on this point. Indeed, this outcome was clearly compelled by applicable precedent given […]
Court Unanimously Rejects Class Action Against Wal-Mart
In another big decision this morning, the Supreme Court held unanimously against class action plaintiffs seeking to sue Wal-Mart for gender discrimination in Wal-Mart v. Dukes. While the Court split 5-4 over the scope of the decision, the Court was unanimous that the class should not have been certified. This outcome is not-so surprising given […]
Supreme Court Unanimous that Clean Air Act Displaces Climate Suits
Today the U.S. Supreme Court held unanimously in American Electric Power v. Connecticut that the Clean Air Act displaces suits alleging global warming constitutes a public nuisance under federal common law. As I’ve discussed before (see posts here, here and here), this conclusion was hard to avoid once the Supreme Court held (erroneously in my […]
Greenwald on Bush, Obama, and OLC
Glenn Greenwald draws an interesting, if unfavorable, comparison between the actions of lawyers in Department of Justice under President Bush and President Obama. Bush decided to reject the legal conclusions of his top lawyers and ordered the NSA eavesdropping program to continue anyway, even though he had been told it was illegal (like Obama now, […]
An End to ObamaCare Waivers
The Department of Health and Human Services has announced that it will cease issuing waivers from the health care reform law’s requirements in September. From the NYT: No more applications will be accepted after Sept. 22, federal health officials said. Steven B. Larsen, director of the federal Center for Consumer Information and Insurance Oversight, said […]
Balkin on Bush, Obama and OLC
Jack Balkin blogs on the Obama Administration’s decision to overrule OLC at Balkinization. He compares the Obama Administration’s actions with those of the Bush Administration. The Bush White House undermined OLC’s role by cocooning those who were working on certain questions and short-circuiting intra- and interagency rule. Through this process, the White House got the […]