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Legal news from Monday, June 29, 2009

Supreme Court adds Confrontation Clause case to 2009 term
Jaclyn Belczyk on June 29, 2009 7:56 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] issued a second set of orders Monday, granting certiorari [order list, PDF] in one additional case. On its final day of the term, the Court agreed to hear Briscoe v. Virginia [docket; cert. petition, PDF], in which it will consider whether, if a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, the state avoids violating the Confrontation Clause of the Sixth Amendment [Cornell LII backgrounder] by providing that the accused has a right to call the analyst as his own witness. The Supreme Court of Virginia ruled that there was no Confrontation Clause violation.

Last week, the Court ruled [opinion, PDF; JURIST report] 5-4 in Melendez-Diaz v. Massachusetts [Cornell LII backgrounder; JURIST report] that a forensic analyst's laboratory report is testimonial evidence under the Confrontation Clause, giving criminal defendants a right to cross-examine the analysts. The Massachusetts Appeals Court held [opinion, PDF] that the report was not testimonial in nature and could therefore be admitted without the analysts testifying in person. Writing for the Court, Justice Antonin Scalia reversed that decision. Justice Clarence Thomas filed a concurring opinion. Justice Anthony Kennedy filed a dissenting opinion, joined by Chief Justice John Roberts and Justices Stephen Breyer and Samuel Alito.

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Kenya troops violated human rights during illegal arms operation: rights group
Andrew Morgan on June 29, 2009 3:04 PM ET

[JURIST] Kenyan troops tortured, raped, and committed other human rights violations against civilians during an operation to quell ethnic fighting in the country's northeastern Mandera Triangle region, according to a report [text, PDF] released Monday by Human Rights Watch (HRW) [advocacy website]. HRW compiled testimony from victims in the region, non-governmental organizations (NGOs) operating in the area, and representatives from the Kenya National Commission on Human Rights [advocacy website]. According to the report, during an October 2008 joint operation by Kenyan military and police to disarm warring factions from the Garre and Murulle communities:

security forces terrorized the civilian population through violence while demanding that they turn over illegal weapons if they wanted the violence to stop. By the time the operation was over on October 28, more than 1,200 people from both clans were injured as a result of severe beatings and torture by the security forces; one person died.

Kenyan government spokesperson Alfred Mutua [official profile] flatly denied the allegations [AP report], saying that HRW had not consulted with the government on the report.

Earlier this month, Amnesty International [advocacy website] Secretary General Irene Khan [AI profile] urged [press release] the Kenyan government to address impunity for human rights violations [JURIST report] committed by police and security forces during the December 2007 post-election violence [JURIST report]. Also this month, former UN secretary-general Kofi Annan [official website] told the BBC [BBC report] that Kenya has until the end of August to establish a tribunal [JURIST report] to try the leaders behind the violence or he will be forced to give the International Criminal Court (ICC) [official website] a sealed list of key suspects for prosecution.

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Iran Guardian Council certifies contested election results
Andrew Morgan on June 29, 2009 2:21 PM ET

[JURIST] Iran's Guardian Council of the Constitution [official website, in Persian] on Monday certified [press release, in Persian] the results of the controversial June 12 presidential election [BBC backgrounder], officially sanctioning the re-election of President Mahmoud Ahmadinejad [BBC profile; JURIST news archive]. The certification [BBC report] comes a week after the Council rejected [BBC report] protesters' requests to abandon the results and start over after a partial recount [JURIST report] ordered by the country's spiritual leader and highest authority, Ayatollah Ali Khamenei [official profile; BBC profile], showed no irregularities in Ahmadinejad's overwhelming victory. The investigation concluded that any minor inconsistencies would not have resulted in victory for reform candidate Mir Hossein Mousavi [IranTracker profile]. Monday also marks the end of the period declared [JURIST report] by Khamenei during which opposition candidates could submit additional complaints about the election.

Supporters of Mousavi and other opposition candidates protested in Tehran and elsewhere after Ahmadinejad's victory, reportedly resulting in at least 17 deaths and hundreds of arrests [JURIST report]. Authorities stated that those arrested would be dealt with [Reuters report] by the court system. Human rights groups have viewed the arrests as political repression [JURIST report], saying that Iranian forces are using the protests to "engage in what appears to be a major purge of reform-oriented individuals." Amnesty International [advocacy website] called for authorities to respect and nurture debate Thursday, stressing [press release] that "healthy debate on issues of fundamental importance to peoples' lives" informs, rather than threatens, policy makers."

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Re-arguments ordered in Supreme Court campaign finance case
Andrew Morgan on June 29, 2009 1:05 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday ordered [order, DOC] re-argument in Citizens United v. Federal Election Commission [Cornell LII backgrounder] on whether Austin v. Michigan Chamber of Commerce and McConnell v. Federal Election Commission [Oyez backgrounders] should be overturned in deciding the case. Both cases deal with the facial validity of Section 203 of the Bipartisan Campaign Reform Act (BCRA) [text, PDF], which the Federal Election Commission (FEC) [official website] argues allows them to regulate the release of and advertising for a 90-minute documentary, questioning then-Senator Hillary Clinton's (D-NY) qualifications to serve as US president. Petitioner Citizens United [advocacy website], a non-profit conservative advocacy corporation who produced the film, appealed on broad First Amendment grounds a decision [opinion, PDF] by the US District Court for the District of Columbia [official website], which held that the movie was "electioneering communication" within the meaning of BCRA.

The Court originally heard oral arguments [JURIST report] in March. The government had argued the Court's decisions in McConnell and Federal Election Commission v. Wisconsin Right to Life [opinions, PDF] allowed them to regulate the video because it was funded by a corporation and could not reasonably be interpreted as anything other than an appeal to vote against Clinton. Citizens United argued that the movie was the kind of "robust, uninhibited debate about a subject of intense political interest" that the First Amendment was designed to protect.

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Madoff sentenced to 150 years for fraud scheme
Jaclyn Belczyk on June 29, 2009 12:12 PM ET

[JURIST] Disgraced financier Bernard Madoff [JURIST news archive] was sentenced Monday to 150 years in prison on securities fraud charges [complaint, PDF; JURIST report] stemming from his multi-billion dollar Ponzi scheme. Madoff, 71, appeared before Judge Denny Chin of the US District Court for the Southern District of New York [official website] and was given the maximum sentence for the 11 fraud charges to which he pleaded guilty [JURIST report] in March. Madoff made a statement in court apologizing [Bloomberg report] to his victims. Prosecutors are still investigating whether anyone else at the firm was involved in the fraud scheme and charged [JURIST report] Madoff's accountant David Friehling in connection with the scheme in March.

In April, Chin issued a restraining order that protects from bankruptcy more than $100 million in Madoff's assets. On the same day, a federal bankruptcy judge appointed an interim trustee [Bloomberg report] to oversee Madoff's assets ahead of attempts by injured investors to recoup losses suffered in the scheme. In February, Madoff consented [JURIST report] to a partial judgment [SEC press release] with the SEC over civil charges brought by the SEC to obtain a preliminary injunction and asset freeze against him. The same day, then-SEC Division of Enforcement Director Linda Thomsen announced she was stepping down from her post [SEC press release]. In the week following Madoff's charges, then-SEC Chairman Christopher Cox [official profile] said that he would launch an immediate investigation [press release; JURIST report] into how the fraud allegedly perpetrated by Madoff went undetected for so long.

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National Bank Act does not prevent state enforcement: Supreme Court
Andrew Morgan on June 29, 2009 11:51 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday ruled [opinion, PDF] 5-4 in Cuomo v. Clearing House Association [Cornell LII backgrounder; JURIST report] that the National Bank Act (NBA) [12 USC § 484(a) text] and 12 CFR § 7.4000 [text] do not prevent a state from enforcing fair lending laws against national banks. The Office of the Comptroller of Currency (OCC) [official website] had interpreted § 484(a) defining "visitorial powers" to preempt state enforcement of state laws against national banks, and brought suit to prevent the New York Attorney General [official website] from seeking the voluntary release of bank information under threat of subpoena. Finding that visitorial powers "include any form of administrative oversight that allows a sovereign to inspect books and records on demand," the Court found that when:

a state attorney general brings suit to enforce state law against a national bank, he is not acting in the role of sovereign-as-supervisor, but rather in the role of sovereign-as-law-enforcer. Such a lawsuit is not an exercise of "visitorial powers" and thus the Comptroller erred by extending the definition of "visitorial powers" to include "prosecuting enforcement actions" in state courts.

The Court also found that the executive authority to issue subpoenas granted to the Attorney General by New York Executive Law § 63 [text] was not an enforcement power "vested in the courts of justice" as required by the NBA, and therefore upheld part of a lower court injunction preventing the issuance of executive subpoenas, while allowing the commencement of judicial proceedings.

The Clearing House Association [industry website], a banking trade group, and the OCC brought suit after then-New York attorney general Elliot Spitzer [JURIST news archive] sent "letters of inquiry" "in lieu of subpoenas" to banks operating in New York. Spitzer was seeking to determine if mortgage data released by the Federal Reserve [official website] in 2005, showing a that minority borrowers had disproportionately high percentage of high-interest home mortgage loans, showed that banks had violated state consumer protection and anti-discrimination laws.

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High court finds Title VII violation in firefighter reverse discrimination case
Andrew Morgan on June 29, 2009 10:13 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday overturned [opinion, PDF] a lower court ruling dismissing racial discrimination challenges to the promotion criteria used by the fire department of New Haven, CT. The Court ruled 5-4 in Ricci v. DeStefano [Cornell LII backgrounder; JURIST report] that a "strong basis in evidence" that an employer would be liable under a Title VII [text] disparate impact [EEOC backgrounder] analysis is necessary to justify a "race-based" action that would otherwise violate Title VII's disparate treatment standard. The Court ruled that summary judgment on disparate treatment grounds in favor of firefighters who were not promoted despite high test scores was appropriate, finding that the prima facie disparate impact case demonstrated by the City did not meet the "strong basis in evidence" standard. Writing for the majority, Justice Anthony Kennedy said that:

there is no evidence — let alone the required strong basis in evidence — that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City. Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.

The Court also noted that a disparate impact suit brought as a result of the City certifying the test results would now fail because there is strong evidence that "had it not certified the results, it would have been subject to disparate treatment liability." Having resolved the issue on Title VII grounds, the Court did not reach the petitioners' Equal Protection [Cornell LII backgrounder] claim. Justice Ruth Bader Ginsburg filed a dissenting opinion in which Justices John Paul Stevens, David Souter and Stephen Breyer joined.

The case gained prominence after Sonia Sotomayor [WH profile], who ruled on the case at the Second Circuit Court of Appeals [official website], was nominated [JURIST report] to fill the vacancy left by the retirement [JURIST report] of Justice David Souter. Sotomayor's confirmation hearing before the Senate Judiciary Committee [official website] is scheduled to begin [JURIST report] on July 13.

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Supreme Court takes international child custody, NFL antitrust cases
Jaclyn Belczyk on June 29, 2009 10:03 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday granted certiorari [order list, PDF] in six cases. In Abbott v. Abbott [docket, cert. petition, PDF], the Court will consider whether a ne exeat clause, which prohibits one parent from removing a child from the country without the other parent's consent, confers a "right of custody" within the meaning of the Hague Convention on International Child Abduction [text]. The Hague Convention requires a country to return a child who has been "wrongfully removed" from his country of habitual residence. Under Art. 12, a "wrongful removal" is one that occurs "in breach of rights of custody." The US Court of Appeals for the Fifth Circuit held [opinion, PDF] that ne exeat rights do not constitute "rights of custody" within the meaning of the Hague Convention.

In American Needle, Inc. v. NFL [docket; cert. petition, PDF], the Court will consider whether the NFL and its member teams are a single entity that is exempt from rule of reason claims under Section 1 of the Sherman Act [text]. The NFL teams reached an agreement with Reebok to license and sell consumer headwear and clothing with the respective teams' logos and not to grant licenses to Reebok's competitors for 10 years. The US Court of Appeals for the Seventh Circuit ruled [opinion, PDF] that the NFL and its member teams are a single entity under the Sherman Act.

In Weyhrauch v. United States [docket; cert. petition, PDF], the Court will consider whether a federal honest services mail fraud prosecution under 18 USC §§ 1341 and 1346 [texts] requires proof that the conduct at issue also violated an applicable state law. The US Court of Appeals for the Ninth Circuit held [opinion, PDF] that no state law violation is required. The case involves former Alaska state representative Bruce Weyhrauch and whether he should have disclosed that he was seeking legal work from oil company Veco Corp. while he was voting on an oil tax.

In Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA [docket; cert. petition, PDF], the Court will consider whether a debt collector's legal error qualifies for the bona fide error defense under the Fair Debt Collection Practices Act (FDCPA) [15 USC § 1692 text, PDF]. Petitioner Jerman filed an action challenging the debt collection practices of the Carlisle law firm, claiming that they violated the FDCPA when they used allegedly deceptive forms to notify her of a foreclosure on her home. Specifically, Jerman claims that defendants violated the FDCPA by representing to Jerman that her debt would be assumed valid unless she disputed the debt "in writing" even though the FDCPA does not require a written dispute. The US Court of Appeals for the Sixth Circuit ruled [opinion, PDF] that although the defendants violated the FDCPA by instructing Jerman that she must dispute the debt in writing, defendants qualified for the FDCPA bona fide error defense.

In Granite Rock Company v. International Brotherhood of Teamsters [docket; cert. petition, PDF], the Court will consider whether a federal court has jurisdiction to determine whether a collective bargaining agreement was formed when it is disputed whether any binding contract exists, but no party makes an independent challenge to the arbitration clause apart from claiming it is inoperative before the contract is established and whether Section 301(a) of the Labor Management Relations Act (LMRA) [text], which generally preempts otherwise available state law causes of action, provides a cause of action against an international union that is not a direct signatory to the collective bargaining agreement, but effectively displaces its signatory local union and causes a strike breaching a collective bargaining agreement for its own benefit. The US Court of Appeals for the Ninth Circuit affirmed [opinion, PDF] the district court's dismissal of a claim against the International Brotherhood of Teamsters for tortious interference with a collective bargaining agreement between Granite Rock and Local Union 287.

In Conkright v. Frommert [docket; cert. petition, PDF], the Court will consider whether a district court has no obligation to defer to an Employee Retirement Income Security Act (ERISA) [text] plan administrator's reasonable interpretation of the terms of the plan if the plan administrator arrived at its interpretation outside the context of an administrative claim for benefits and whether a district court has "allowable discretion" to adopt any "reasonable" interpretation of the terms of an ERISA plan when the plan interpretation issue arises in the course of calculating additional benefits due under the plan as a result of an ERISA violation. The US Court of Appeals for the Second Circuit ruled [opinion, PDF] that a district court is under no obligation to defer to an ERISA plan administrator's interpretation and that a district court does have "allowable discretion" to adopt any "reasonable" interpretation of the terms of the plan.

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DOJ says Guantanamo detainees have some constitutional protections: report
Andrew Morgan on June 29, 2009 8:58 AM ET

[JURIST] The US Justice Department's Office of Legal Counsel (OLC) [official website] has cautioned that Guantanamo Bay detainees tried by military commission [JURIST news archives] in the US have some constitutional protections [WSJ report], the Wall Street Journal [media website] reported on Monday. According the report, the OLC told the White House in a confidential memo that while federal courts may not extend all Constitutional rights to detainees, they were likely to find that the use of coerced statements would violate Due Process Clause of the Fifth Amendment [text]. The memo advised the White House to seek changes to the Military Commissions Act of 2006 [text, PDF] to address the Fifth Amendment issue and strengthen the constitutional basis of the commissions, echoing the conclusion reached [JURIST report] last week by the US Senate Armed Services Committee [official website].

Last month, US President Barack Obama [official website] announced [JURIST report] that he would use the controversial military commissions system to try some Guantanamo Bay detainees. The move drew criticism [JURIST report] from human rights groups, which called the plan "fatally flawed," continuing a long line of criticism of the commissions [JURIST report] for admitting some evidence that is barred from federal court, including hearsay or coerced confessions. In January, Obama issued an executive order [text; JURIST report] directing the military prison be closed "as soon as practicable and no later than one year from the date of this order," which has led the government to consider various options for detainee disposition.

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Unprecedented Notice of Warrantless Wiretapping in a Closed Case
Ramzi Kassem
CUNY School of Law

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