Month: November 2011

Does Standing Require Injury?

The 1974 Real Estate Settlement Procedures Act bars, among other things, kickbacks by title insurance companies. Under the law a plaintiff can sue without having to show actual injury. At least that was the argument made by the lawyer representing Denise Edwards, the homebuyer in this case who sued First American Financial Corp. SC111128_Lamken

But it was an uphill battle. Justice Scalia questioned, “I’m not even sure it’s proper to call it a kickback. It’s a commission.” And Justice Alito told Edwards’ attorney, Jeffrey Lamken, “We are looking for whether there is injury in fact.” SC111128_Panner

In his rebuttal Aaron M. Panner, the lawyer for First American, reaffirmed that “what is required is an injury-in-fact, a harm to the plaintiff who is seeking to obtain redress from the courts.

Mike Sacks brilliant analysis of the argument is here.




Posted in Arguments, Supreme Court Tagged with: ,

The Cheese and the Worms in Bologna

These are sketches of historian Carlo Ginzburg being interviewed by artist Jorge Satorre in Bologna. Ginzburg is the author of that seminal work of microhistory, Il fromaggio e i vermi, The Cheese and The Worms. Menocchio110929_Satorre_Ginsburg





Posted in History Tagged with: , ,

“It’s not just a coincidence that I look like Jesus.”

Oscar Ramiro Ortega-Hernandez appeared before Magistrate Judge Alan Kay today, charged with attempting to assassinate the president by firing an AK-47 at the White House.  Ortega111121wide

He does indeed look a bit like Jesus, as he told Oprah in this home videoOrtega111121_jesus

AP story here.

Posted in Courtroom Tagged with: ,

The Meat of Preemption

In 2009, in reaction to a disturbing Humane Society video documenting the mistreatment animals at one of its slaughterhouses, California passed a law banning the purchase, sale and butchering of animals that are unable to walk to their demise.  SC111109_Wells

Such non-ambulatory, “downer” animals were to be immediately euthanized. But the Federal Meat Inspection Act says that for some animals, in this case swine, an inspector should determine if the animal is sick and unfit for human consumption, or merely tired and lazy. SC111109_Smith

During yesterday’s arguments it appeared that the Justices are incline to strike down California’s law because Federal law trumps, or preempts, State law.  Still, it’s not that simple.

Justice Breyer:  “Do we have to write an 11-part opinion where we treat each of these different things, which are different, separately and analyze it?  To write an 11 part opinion or do we treat each of these differently separately and analyze it.  I’m not trying to get out of work.  I just want to know.” 

Justice Scalia: “I’d like to get out of the work, to tell you the truth.”

WaPo story here.






Posted in Arguments, Supreme Court Tagged with:

Big Brother is Watching

The Supreme Court struggled with privacy rights in the digital age during arguments on warrantless GPS tracking. SC111108wide_Leckar

DC police investigating a nightclub owner, Antoine Jones, in a drug case put a tracking device on his car and tracked its movements every ten seconds for a month. Stephen C. Leckar, shown above, argued the case for Jones. SC111108_Breyer

Justice Breyer told the government’s lawyer, Deputy Solicitor General Michael Dreeben, “if you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States…..sounds like ‘1984.’” SC111108_Dreeben

“The court should address the so-called ‘1984’ scenarios if they come to pass, rather than using this case as a vehicle for doing so,” replied Dreeben.

Huff Post’s Mike Sacks has the full story here.





Posted in Arguments, Supreme Court Tagged with: ,

Passport Case or Foreign Policy?

When the parents of  two-year-old Jerusalem-born Menachem Zivotofsky submitted a passport application for their son who has U.S. citizenship they were told that they could not designate “Israel” as the place of birth.

The case pits the State Department against an Act of Congress that says that a U.S. citizen born in Jerusalem shall “record the place of birth as Israel.” SC111107_Lewin

In arguments at the Supreme Court today the lawyer for the parents , Nathan Lewin, said “it’s a passport law.”

Solicitor General Donald Verrilli took the position that it’s a “political question” about who controls foreign policy, congress or the president? SC111107_Verrilli

Bob Barnes reports on a “supremely funny moment” here.







Posted in Arguments, Supreme Court Tagged with: ,

Eyewitness Reliability and Due Process

Identification by an eyewitness is notoriously unreliable and yet has a powerful influence on jurors. Testimony that has been intentionally influenced by the police or prosecutor may be barred, but what if the circumstances surrounding the identification were suggestive, but unintended?

The case is Perry v. New Hampshire.  The witness identified Barion Perry as a “tall black man” she saw standing next to a police officer in a dark parking lot, and Perry was convicted of theft based partly on her testimony.

As public defender Richard Guerriero argued to exclude any unreliable witness ID, the Justices seemed unlikely to expand the umbrella of due process. SC111102_Guerriero

Richard Guerrierro, arguing for petitioner Perry, is pictured above as Scalia asks, “Why is unreliable eyewitness identification any different from unreliable anything else? So shouldn’t we look at every instance of evidence introduced in criminal cases to see if it was reliable or not?”

Pictured below is New Hampshire Attorney General Michael A. Delany, who had an easier time of it. SC111102_Delany

HuffPost’s Mike Sacks does a great job of reporting it here.




Posted in Arguments, Supreme Court Tagged with: ,