New Merits Brief Filed by Cockle Printing

Brief for the Petitioner in Marx v. General Revenue Corporation, No. 11-1175, filed on July 27, 2012

The ACS Blog Talks With A Public Defender About What Arguing A Case In The Supreme Court Felt Like

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Over at the ACS blog, Nicole Flatow interviewed attorney and State Appellate Defender Valerie Newman about her experience arguing before the Supreme Court on behalf of the respondent in Lafler v. Cooper. Rarely, do we hear an unvarnished take on what it is like for attorneys to argue before the high court. Speaking of the experience, Ms. Newman said:

“It was not a pleasant experience,” she said. “… I tell people the experience felt to me like there were nine lions, even though Justice Thomas never talked, and I was the piece of meat that was thrown into the ring and they were just all scratching at me to see who could get the biggest piece.”

That is likely the experience for most people at their first oral argument before the Supreme Court, especially if you are defending a pro-defendant result.

But this story has a happy ending. Ms. Newman stood her ground during oral argument and ultimately prevailed in a 5-4 decision written by Justice Kennedy. Lafler, along with Missouri v. Frye, were two of the most important criminal cases the Court decided this term. In fact, those two cases may go along side some of the most important rulings ever on ineffective assistance of counsel, cases such as Strickland, Padilla, and Wiggins.

Nice work Ms. Newman.

Rights versus right?

Guest post by Elaine Sylvester

 

12 people were killed when a gunman entered a theater in Aurora, Colorado, and proceeded to open fire on the captive audience.

Like many news-hungry Americans, I spent a sizable percentage of the days after combing the Internet for insight into the cruelties that we witnessed from afar. And though I still feel cold inside, it can be nothing compared to what the families of the victims feel. Or the terror that they felt not knowing the status of a loved one.

I remember feeling that on September 11th, 2001. I never want to feel that way again.

Unfortunately, we cannot choose to be given happy lives. We can only choose how we live the lives that we are given.

I cannot help but think of my freshman year philosophy class in which we discussed Hobbes’ theory of a social contract. The idea that we must give up some of our lesser Rights to insure the protection of our “natural rights” (or inalienable Rights) by the state. Hobbes posits that it is only through mutual sacrifice that we transcend our “state of nature” and function as a society.

The Right to own guns is a Right given to us by the Second Amendment of the Constitution of the United States. I do not pretend to comprehend the thoughts or beliefs of our founding forefathers in their decision to include this (although it seems reasonable considering the British militia regime). I do not argue with the Justices of the United States when they upheld this Right in District of Columbia v. Heller.

But perhaps, in the pursuit of a great United States for those generations that will come after us, we might discuss the possibility that the Right to bear arms is a Right that we could readily compromise.

To save the victims of future massacres.

Yes, I understand that people feel the need to protect themselves against the world. And, yes, I understand that one way to protect yourself is to carry a gun.

But when the same law that arms you kills you, wouldn’t it just be easier if no civilian had that Right?

And yes, I know guns don’t kill people. People kill people. But, personally, I’ve never heard of a single man acting on his own without a gun killing 10 (Jacksonville 1999, Alabama 2009), 12 (Aurora 2012, Tucson 2011, Columbine 1999), 13 (Fort Hood 2009, Binghamton 2009), 16 (Austin 1966), 21 (San Ysidro 1984), 23 (Killeen, Texas 1991), or 32 (Virginia Tech 2007) people at one time. It only seems to be the ones with guns who do that.

Truth be told, we have given up a lot of our Rights already. The Right to remain unpunished is one. Imagine a world without regulation. There is no ruling body to dictate what constitutes a crime, and thus you retain the Right to live unpunished.

You give up this Right when you agree to live in a community with others. By living in a society we have agreed to live by rules that restrict the Rights of all of us to better the lives of all.

We have simply already internalized this lack of Rights as the cost of living in a civilized society.

No one wants to lose all their Rights. But maybe it is only wise to trade some in to build a safer society, which would ultimately save our inalienable Rights (like the Right to live).

So, in my naiveté, I would relinquish this Right to bear arms. It is a choice; to knowingly accept the risks of remaining unarmed, open to attack. If that makes it even a little bit harder for the mass shooters of the world to get a gun, I’m okay with that.

Unfortunately, it doesn’t work that way unless an entire society joins the social contract. I don’t see that happening anytime soon. People are concerned with protecting their own; and that doesn’t make them bad, it makes them human.

So I guess, I just wanted to tell you all that I’m glad you’re alive. And that if I am ever gunned down by a gunman, I want you to know that I would have much preferred that he didn’t own the gun legally. Then I’d at least know that my country’s inhabitants were trying to protect all of us instead of just the armed individuals.

Maybe I am too young to understand. But I wish that we spent more time on what is right, and not on Rights.

 

 

New Merits Brief Filed by Cockle Printing

Brief of Respondent in Tibbals v. Carter, No. 11-218, filed on July 20, 2012

The State of the NBA

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The several years behind us and before us will define the future of the NBA. The denigration of competitive spirit and moral fiber amongst certain players and upper management has left an irreparable stain on the legacy of the game that in the past brought us pioneers and idols like Jordan, Russell, Magic, Bird, Chamberlain, etc. The question is…how long will this go on? Will the fans and the sports community do their duty to end this behavior and bring the absentee sense of integrity back to the game of basketball? These answers should emerge in the near future.

How can the everyday American relate to Dwight Howard? We can’t, not a single one of us. Dwight preached “loyalty,” (yes, this is very real) while destroying the Orlando Magic front office and giving up on his teammates and fans, effectively holding a franchise hostage for over a year. Almost as embarrassing was his public statement, “there are a lot of nights where I don’t sleep, ” regarding the self-induced uncertainty in the destination of his playing future. Dwight, you have a max contract in the NBA. You are living every boy’s dream, playing a game for millions of dollars while also collecting an absurd stream of endorsement money. That statement is a slap in the face to the American public, many of whom are struggling to make end’s meet in the current recession. The American public has reason to lose sleep at night, Dwight Howard does not.

So how did things get this bad? The reasonable response is to begin with the advent of free agency in the NBA. Hell, teams have been moving around as long as players have. As Trey Parker and Matt Stone wrote in the film Baseketball, “The Minneapolis Lakers moved to Los Angeles, where there are no lakes. The Oilers moved to Tennessee, where there is no oil. The Jazz moved to Salt Lake City, where they don’t allow music.” The latest example is the movement of what was formerly the Seattle Supersonics franchise to Oklahoma City, which has left a nigh irreparable relationship between the people of Seattle and the NBA, Commissioner David Stern, and owner Clay Bennett. The tongue-in-cheek of Parker and Stone highlighted a negative trend in professional sports, the love of the game being left behind in the pursuit of big business.

In recent years, the decision to test free agency has been amplified by larger contracts and the “super friends” mentality. There were days in the past when a star leaving a team for their rival was seen by fans on the same level as committing adultery (e.g. my own and this little girl’s current feelings towards Steve Nash). This is now accepted as business as usual every offseason. A generation ago, players stayed with their respective teams for the majority of their careers. These players cultivated friendly (or not so friendly) rivalries with certain opposing teams or players. They stayed true to the front office that took a chance on them, the teammates that treated them like family, and the fans that embraced them. They were appreciative.

The current media age, coupled with ease of travel and communication, has galvanized a generation of young players. Rather than creating rivals, these players are constructing lasting bonds and friendships. These players have known each other since their AAU and college recruitment days; they watch each other play on TV every night. Social media keeps them only seconds apart at all times. So why would these superstars want to play against their close friends when the NBA has given them the chance to team up? The NBA is enabling and cultivating this selfish attitude in its star and even mid-level players; it is unacceptable.

What many teams had anticipated for years, the epic 2010 free agent class, turned into every small/medium market NBA team’s nightmare. Pat Riley saw an unprecedented opportunity, exposed a loophole in the system, and signed to the Miami Heat three of the top ten players in the league. The rest is history, and now every big market NBA team is scrambling to keep pace. Two years ago we saw Carmelo Anthony pout his way from the Denver Nuggets to the New York Knicks to join up with Amar’e Stoudemire, as they both awaited the potential arrival of Chris Paul. Last season Dwight Howard began his drama; he is currently lobbying to be traded to the Brooklyn Nets, also known as Deron Williams and Joe Johnson (talks seem to be dead for the moment). The Lakers have a big three of Kobe Bryant, Andrew Bynum, and Steve Nash (not to mention Pau Gasol), and are also in on the talks for Howard. The dynamic of the NBA is changing. Rather than being dictated by the spirit of competition and the enjoyment of the fans, the players are taking over more than anyone could have envisioned, in any professional sport. When you put only five starters on the floor, the impact of one player is greater than it is in football, baseball, or hockey. LeBron James departure from Cleveland is the paramount example, dropping the Cavaliers from first to worst immediately after taking his talents to South Beach.

So how can the small market teams keep up? How will the NBA balance the business interests of the franchises and the league with the individual interests these “super friends” and big market teams are creating? The answers are unknown; the next several years will help shake things out and determine which direction the league is ultimately headed. Ideally league officials will find a way to stymy this trend before it creates severe negative shockwaves throughout the NBA. Current hope for change can be found in Oklahoma City, one of the few teams in the league that has built a serious contender by hitting home runs with their draft picks and filling out their roster with contributors who don’t demand max salaries, a near NFL success model (honorable mentions to the Philadelphia 76ers, Memphis Grizzlies, and Indiana Pacers, several young teams on the rise). If teams built in the model of OKC can beat back these “super teams,” owners and GMs may revert to the more balanced/traditional method of assembling rosters. This will benefit the competitive balance and the team-first mentality that seems to be disappearing from the NBA at an alarming rate.

The Three Best Places To Read About Law, But Not From A Law Blog

There are a number of online places to read about law. Blogs are aplenty, as as student-led online law journals. But I tend to enjoy reading about the law from someone who isn’t a practicing lawyer or law professor because I think its important to see law from a bird’s eye view rather than simply on the ground. If all you do is read things produced by lawyers and law professors every day, your perspective can become warped. The following are three places where you can read pieces touching on the law written by non-lawyers.

The Huffington Post’s Radley Balko does investigative reporting on civil liberties, the criminal justice system, and national security issues. Balko also blogs on The Agitator.  His latest piece at HuffPo covered the not so War on Cops.

Mother Jones is one of the best places to find investigative reporting that you can’t find anywhere else. MJ publishes hard hitting pieces on a variety of subjects. For example, in the past few weeks MJ has published a piece on the GOP’s strategy to Voter ID laws to rig win elections and about the War on Drugs.

Lastly, I use the Gallagher Blogs at the University of Washington School of Law to learn about new reports issued by public advocacy groups. The blog is prepared by the librarians at the Gallagher Law Library. In recent weeks, Gallagher Blogs highlighted new justice statistics from the Department of Justice and a new report from the State Department on Human Trafficking.

The New York Times Skewers Law Schools, Again!

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After the ABA published employment statistics for new law school graduates that were the worst since 1994, the media has started to take notice. On Sunday, the New York Times wrote yet again about the struggling state of law school education.

But what about law schools?

Not so much. For the most part, law schools are operating the same–way too many graduates with way too much debt vying for too few jobs.

Oh sure, as the Times notes, a few schools are making changes. But what we are not seeing is the system-wide change needed, especially at the lower levels of the law school spectrum where employment statistics are jokingly bad; the bottom 20 law schools had only 31% of its 2011 graduates employed in lawyer jobs. Ouch!

I hope the Times and other media continue to highlight the worst aspects of legal education. If law schools won’t make changes, maybe the law school economy will make changes for them.

Ninth Circuit Ruling is Monumental for Those Suffering From Eating Disorders

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Guest Post By Ann Marie Hopwood

On July 12, 2012, the Ninth U.S. Circuit Court of Appeals summarily denied Blue Shield of California’s request for rehearing and rehearing en banc for the decision made in Harlick v. Blue Shield of California. In the decision made on June 4, 2012, the Ninth Circuit withdrew its prior opinion of August 26, 2011, and Judge William A. Fletcher issued a majority opinion declaring that health insurance plans are required to provide coverage for “severe mental illnesses” under “the same financial terms as those applied to physical illnesses.” Thus, California health insurance plans are obligated to pay for residential treatment for those suffering from eating disorders even if residential treatment is explicitly excluded from the policy.

You can view the original Harlick v Blue Shield of California decision at: http://bit.ly/M7yqes

This is a huge feat for the estimated ten million Americans struggling with eating disorders, most of whom cannot afford to pay for the necessary medical treatment to recover. Eating disorders have the highest mortality rate of any mental illness and generally require intense and prolonged treatment. This monumental decision, even though currently only affecting those with California health insurance plans, will hopefully spur the other states to follow suit and provide the opportunity for suffering individuals to escape the clutches of an eating disorder.

For more on eating disorders and the law, please visit the Kantor & Kantor Eating Disorder Law Blog at http://bit.ly/P52gRE

You can also view the Kantor & Kantor press release from yesterday regarding the Ninth Circuit Ruling in Harlick v Blue Shield of California at http://on.mktw.net/LfeUso

Erwin Chemersinsky’s sad criticism of Knox v. SEIU

Dean Erwin Chemerinsky published this article last week on the ABA Journal’s website complaining about the Supreme Court’s decision in Knox v. SEIU. That’s the case in which the Supreme Court said that the union must ask non-members before it takes away their money to run a political campaign. As I explain here, the rule had previously been that people who objected to having their paychecks docked to subsidize union political activities bore the burden of raising an objection and going through an expensive, time-consuming refund process. In Knox, the Court agreed with PLF that this was contrary to long-standing First Amendment precedent, which said that courts must not presume that people mean to give up their expressive freedoms.

There was a time when liberal lawyers believed that laws that infringe on speech and other rights central to the democratic process, should be regarded with skepticism by the courts. In Knox, these concerns should be particularly heightened, since the union was taking non-members’ money in order to run a campaign opposing a California ballot initiative which would have imposed an opt-in requirement so as to protect those same non-members. In other words, the union was forcing people to subsidize a campaign in favor of forcing people to subsidize campaigns! Under the rule of the famous Footnote Four—once regarded as gospel by liberal constitutional lawyers—such efforts to “restrict[] those political processes which can ordinarily be expected to bring about repeal of undesirable legislation” and “curtail the operation of those political processes ordinarily to be relied upon to protect minorities” deserve to be struck down, and the Supreme Court did so in Knox.

(Continue reading at PLF Liberty Blog)

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Booklist Reviews Law Man

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Booklist Online is a collection of over 130,000 book reviews for librarians, book groups, and book lovers—from the experts at the American Library Association. I was excited to learn that a few weeks ago, David Pitt wrote a Booklist Online review of Law Man: My Story of Robbing Banks, Winning Supreme Court Cases, and Finding Redemption.

At 23, Hopwood was already a veteran bank robber, having committed a handful of robberies, including the one that got him sent to prison for more than a decade. In prison, he faced numerous challenges, including the inevitable violence and threats from gangs, but—readers familiar with this sort of story will see where it’s going—rather than become trapped by prison culture, he began the process of turning his life around, eventually becoming an acclaimed “jailhouse lawyer” who changed the lives of many of his fellow inmates. Stories of redemption are not exactly in short supply—even ones written by ex-cons are plentiful—but this one succeeds because it is simply told. Rather than load his story up with obvious spiritual themes and life-affirming messages, Hopwood tells us about his life as he lived it, the good stuff and the bad stuff, and allows us to derive our own messages from the story. The book will be different things to different readers: what is a story of personal triumph to one reader could be a story of “beating the system” to another. But either way, it keeps you reading.