Supreme Court Grants Immunity to Ashcroft for Abusing Material Witness Warrants to Detain American Citizens

In its first day back from Memorial Day weekend, the Supreme Court today held that using material witness warrants as a pretext for detaining alleged terrorism suspects, with no probable cause to arrest for criminal wrongdoing, does not violate the Fourth Amendment in Ashcroft v. al-Kidd.Eight justices unanimously held that former Attorney General Ashcroft was entitled to qualified immunity from suit, because there was no clearly established constitutional law prohibiting the pretextual use of material witness warrants to preventively detain terrorism suspects. However, Justice Scalia’s majority...

Read more »

Hosting this week's #CRECHAT on Twitter!

I guess it is time for me to dust off my chat hosting skills -- I can't believe it has been about 13 years since I have done it -- for a good cause!  #CRECHAT on Twitter is a great group of commercial real estate professionals that meets weekly at 1:00 PM (Central time) on Fridays for an hour to discuss issues of the day in the business.  This is the brainchild of my friend Jason Sandquist in Minneapolis, whom I have gotten to know through social media.  I think he is a great and smart guy and really appreciate the effort he has put into #CRECHAT.This week's topic is "Overcoming...

Read more »

LA Times: Supreme Court "justices should not have the last word about their own compliance with judicial ethics"

The LA Times this week examined the issue of ethics at the Supreme Court.The Code of Conduct for United States Judges was established by the U.S. Judicial Conference and covers all federal lower court judges. Among other things, the code says that "a judge should avoid impropriety and the appearance of impropriety in all activities." Supreme Court justices insist that they too are guided by the code, but when it comes to ensuring public confidence, voluntary compliance is no substitute for mandatory adherence. Earlier this year, Rep. Chris Murphy of Connecticut introduced a bill that would place...

Read more »

Liu Withdraws Nomination

Goodwin Liu, one of the most remarkable, highly qualified, and well-respected judicial nominees in recent memory, has withdrawn his nomination to the Ninth Circuit Court of Appeals.Click here to read Liu's letter to President Obam...

Read more »

Supreme Court Upholds Arizona's Anti-Immigrant "Legal Arizona Workers Act"

Today the Supreme Court’s conservative majority upheld Arizona’s anti-immigrant Legal Arizona Workers Act in Chamber of Commerce v. Whiting. The Court held that the federal Immigration Reform and Control Act (IRCA) of 1986 did not preempt the state from revoking business licenses or mandating that employers’ check their employees’ immigration status using the federal E-Verify database.In an effort to crack down on illegal immigration, Arizona passed a law in 2007 that punishes employers that hire undocumented workers by revoking their business license – referred to as the “business death penalty.”...

Read more »

Supreme Court Ruling Encourages Further Erosion of Government Transparency

The Supreme Court held yesterday in General Dynamics Corp. v. United States that the federal government can invoke the state-secrets privilege to prevent a government contractor from raising a defense to the government’s breach of contract claim. The federal government terminated a contract to build a type of stealth aircraft with two defense contractors due to extensive scheduling delays, exposing the contractors to severe contractual penalties. To avoid a default judgment and raise a defense, the contractors were required to file a claim in the Court of Federal Claims. They argued that the...

Read more »

Split Supreme Court Upholds Ruling to Reduce Cruel and Unusual Punishment in California Prisons

California prisons currently hold twice as many inmates as the prisons were designed to house. As a result of overcrowding, the prisons are incapable of providing basic health care. Prisoners suffering from mental illnesses and those suffering from physical ailments brought separate class action lawsuits to address this problem, which were consolidated in the U.S. Supreme Court in Brown v. Plata. The district courts ruled in both cases that California’s inadequate health care facilities violated the Eight Amendment’s prohibition against cruel and unusual punishment and appointed supervisors...

Read more »

Commercial real estate and social media in 11 words

I have been reading a lot online about so-called social media expertise and all these folks who purport that they can make me a better and more successful lawyer because of their skill at marketing via blogging, Twitter, Facebook and the like.This isn't to say there aren't a few people out there whom I think have legitimate knowledge and even expertise when it comes to social media.  But I think that, more often than not, the real experts are not so much the ones who advertise themselves as authorities and try to sell you services (again, there are exceptions), but rather the folks out there...

Read more »

Violating a Principle on Judicial Nominations

When Senator Lamar Alexander said, "I will not vote to deny a vote to a Democratic president's judicial nominee just because the nominee may have views more liberal than mine," it was taken as a statement of principle, and a reflection of the belief that the Senate should hold a final yes-or-no vote on every one of a president's judicial nominees.But after Senator Alexander -- and every Republican except Sen. Lisa Murkowski of Alaska -- voted against a motion to break a filibuster and hold a yes-or-no vote on Liu's nomination, it's clear that Alexander's statement of principle leaves some room...

Read more »

AFJ Condemns Republican Hypocrisy and Cynicism in the Filibuster of Ninth Circuit Nominee Goodwin Liu

PRESS RELEASEAlliance for Justice President Nan Aron issued the following statement on the Republican filibuster of Ninth Circuit Court of Appeals nominee Goodwin Liu: Today is an extremely sad day for American justice as all but one Republican Senator chose to block a final vote on Goodwin Liu, one of the most remarkable, highly qualified, and well-respected judicial nominees in recent memory. The vote to sustain the filibuster relied almost exclusively on dishonest and distorted attacks on Professor Liu’s record and character. Not only have the American people been denied a great judge,...

Read more »

Join us at #CRECHAT tomorrow!

Thanks to the efforts of Jason Sandquist, some of us in the commercial real estate industry who also participate on Twitter are planning a series of weekly chats on the industry at 2 PM Eastern time, starting tomorrow.You can also follow a feed of the chat here.  I was thinking about playing hooky tomorrow with the nice weather and all, but I do not want to miss the first effort!  (Perhaps the iPad or a laptop in the clubhouse is a good compromise.)I hope you join u...

Read more »

President Obama Nominates Morgan Christen to Ninth Circuit

Joe.Steinberg 11.9999 Normal 0 false false false MicrosoftInternetExplorer4 st1\:*{behavior:url(#ieooui) } /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:"Times New Roman"; mso-ansi-language:#0400; mso-fareast-language:#0400; mso-bidi-language:#0400;}...

Read more »

Panel Discusses U.S. Detention Policy

- Joshua FriedlanderYesterday, the Constitution Project, a non-profit think tank focused on building bipartisan consensus on pressing constitutional questions, hosted an panel discussion on the detention of terrorism suspects. From the government’s misuse of the Material Witness Statute to holding Guantanamo Bay detainees on limited evidence, the United States’ detention policies have spurred political, constitutional, and judicial debates.This term’s Supreme Court case Ashcroft v. al-Kidd directly challenges the status quo of U.S. detention policy. Central to Mr. al-Kidd’s case is the Material...

Read more »

Commercial real estate and test cricket

That is my current analogy of how the market is performing right now. Why? After looking at this and other similar deals.In test cricket you play it safe for the long haul. The game is five days long with, typically, two full turns of batting and fielding. (Yes, I am over-simplifying cricket. It isn't the easiest game to understand for us Americans, after all.) So batters tend to try to hit balls that will get them one and two runs, with anything more being gravy. That is what buying a building at a 6-cap is: safe and long-haul. There are shorter forms of cricket that have become increasingly...

Read more »

Who is Goodwin Liu?

Goodwin Liu is President Obama's nominee for a seat on the Ninth Circuit. Originally nominated in February 2010, Liu has seen his nomination held up for more than a year by delays in the Senate.The Center for American Progress has produced a video of Goodwin Liu in his own words:For more on Goodwin Liu, click her...

Read more »

The Need for the Arbitration Fairness Act

Last month's Supreme Court decision in AT&T Mobility v. Concepcion was a major victory for big corporations facing class-action suits. More than that, it was a staggering blow to consumer, employment, and civil rights. Because of the Corporate Court's decision, corporations now feel free to force individuals into contracts where the individual relinquishes his or her right to pursue justice in the courts.An editorial in the L.A. Times argues that Congress has an obligation to step in and protect consumers, employees, and anyone who hopes to hold corporations accountable for their misdeeds.Underlying...

Read more »

Senate Confirms Carney to Second Circuit

The Senate has confirmed Susan Carney to the United States Court of Appeals for the Second Circuit on a vote of 71-28. Judge Carney was nominated on May 20, 2010, and was renominated at the beginning of the 112th Congress. She is the third circuit judge confirmed this year, and the nineteenth circuit judge confirmed during the Obama presidency. She is the first circuit judge confirmed this year who received any Republican opposition in committee.There are currently 109 vacancies in the federal judiciary, 20 of which are on circuit courts. Thirty-five vacancies are considered to be judicial...

Read more »

Tell Your Senators: Goodwin Liu Deserves a Vote!

** UPDATE: THIS ALERT IS NO LONGER ACTIVE ** An acclaimed scholar, teacher, and lawyer, Goodwin Liu is widely considered one of the brightest legal minds of his generation. Yet his nomination to the Ninth Circuit Court of Appeals has been stalled for over a year by obstruction in the U.S. Senate.Act now to support Goodwin Liu's nomination to the Ninth Circuit. Tell your senators to confirm Goodwin Liu TODAY!Supported by leaders from across the political spectrum, Goodwin Liu possesses the intellect, integrity, experience, and temperament to serve as an excellent circuit court judge. Not...

Read more »

Supreme Court Overturns Decision Holding Corporation Accountable for Deceptive Retirement Benefit Practices

Today the Supreme Court overturned a district court order in CIGNA Corp. v. Amara that compelled CIGNA to provide retirement benefits as they were described in a deceptive summary rather than the less generous benefits described in the plan itself. The Second Circuit upheld the district court’s order.In order to avoid a backlash among its employees, CIGNA buried in fine print a change to its retirement plan that reduced benefits. CIGNA accurately detailed the change in the complete description of the plan but implied in a shorter summary that employees were more likely to read that no change...

Read more »

Supreme Court Denies Cert Mohamed v. Jeppesen in a Blow to Torture Accountability

The Supreme Court today denied certiorari in Mohamed v. Jeppesen Dataplan, a Ninth Circuit Court of Appeals decision that kicked out of court a lawsuit claiming that the victim had been tortured. The Ninth Circuit en banc panel voted 6-5 to dismiss the case, upholding an assertion of the state secrets privilege, first raised by the Bush Administration and now by the Obama Administration, that the need to protect state secrets trumps the ability of former prisoners to sue over alleged torture.The ruling is another blow to accountability for torture that took place under the Bush Administration....

Read more »

Supreme Court Undermines Whistleblowers’ Ability to Uncover Corporate Fraud

The Supreme Court held today in a 5-3 decision in Schindler Elevator v. United States ex rel. Kirk that a federal agency’s response to a Freedom of Information Act (FOIA) request is a “report” under the False Claims Act (FCA). Therefore, a private party that uncovers corporate fraud against the federal government as a result of a FOIA request may not obtain a court award for doing so.Daniel Kirk, an employee of Schindler Elevator Corporation and a Vietnam veteran, suspected that his employer was violating a federal statute requiring companies with large federal contracts to establish affirmative...

Read more »

Summarizing a real estate deal in four letters: RTFD

This is a follow up to my post on why you should call me (or your real estate lawyer) first. Let's be honest, though: it isn't always going to happen.  Why? Time, money, hubris, you name it.  I get that.  I don't like it but I get it.What really irks me, though, is a corollary to at least two of the five points I made last week; namely, this classic: "Oh, I just signed the document without reading it." And it happens more than I care to admit.I can hear someone say, well, what about the boilerplate residential loan documents that are uniform and the same for every single deal?...

Read more »

Movement in the Judicial Selection Process

The judicial selection process has seen new movement over the last two weeks.On May 3, cloture was invoked on John McConnell, a long-blocked nominee to the District Court of Rhode Island, despite unprecedented opposition from the U.S. Chamber of Commerce. McConnell was confirmed on a party-line vote the next day. The McConnell vote helped pave the way for confirmation of Edward Chen this week as the first Asian-American district court judge in San Francisco. In addition, the White House has submitted eleven new nominees, a considerable increase from the two-per-week average prior to May. These...

Read more »

Professor Schwartz Calls for Ethics Reform

Washington College of Law Professor Herman Schwartz today authored an op-ed in Politico, calling for the application of mandatory ethical rules to justices on the Supreme Court. Comparing the justices’ lifetime tenure and immense power to the closest thing America has to “absolute monarchs,” Schwartz notes that in return, we expect them to act ethically.Today, Supreme Court justices are subject to virtually no ethical standards — except those they impose on themselves. That is not good enough.The official Code of Conduct for United States Judges is not applicable to justices. It should be. Though...

Read more »

Senate Confirms Urbanski to District Court

Yesterday, the Senate confirmed Michael Francis Urbanski to the United States District Court for the Western District of Virginia on a vote of 94-0. Judge Urbanski is the 23rd Obama nominee to be confirmed during the 112th Congress.There are currently 110 vacancies in the federal judiciary, 34 of which are considered to be “judicial emergencies” by the administrative office of the U.S. Courts. Forty-nine nominees are pending in the Senate, 14 of which are awaiting final confirmation votes.For the most up-to-date and comprehensive information on judicial nominations, visit the Alliance for Justice’s...

Read more »

New York Times: "A Devastating Blow to Consumer Rights"

Today's New York Times editorial summarizes the blatantly pro-business decision in the Supreme Court case of AT&T Mobility v. Concepcion, and takes a hard stand against the blatant corporate bias on the Roberts Court.Calling it "a devastating blow to consumer rights," the editorial rightly described the Corporate Court's decision "a dramatic example of judicial activism."In his dissent, Justice Stephen Breyer highlights the damage to consumers: “What rational lawyer would have signed on to represent the Concepcions in litigation for the possibility of fees stemming from a $30.22 claim?” And...

Read more »

Recusal on the High Court Gets Attention As Health Care Law Works Its Way Through the Courts

Politico yesterday ran an article describing the efforts on both the left and the right to force the recusal of certain justices from the upcoming challenge to the Affordable Care Act, which could be heard in the Supreme Court as early as next October. Conservatives have argued that Justice Kagan should recuse herself because she was Solicitor General while the case was active within the Department of Justice, while progressives have argued that Justice Thomas should recuse due to fact that his wife earned over $700,000 lobbying against the passage of the law. Neither Justice has recused from...

Read more »

Constitutional Scholar Chemerinsky Slams Corporate Court’s AT&T Mobility v. Concepcion Decision

Erwin Chemerinsky, constitutional scholar and dean of the law school at UC Irvine, slammed the Supreme Court’s decision in AT&T Mobility v. Concepcion and its recent history of pro-corporate bias in a Los Angeles Times op-ed. Chemerinsky called AT&T Mobility “part of a disturbing trend of the five most conservative justices closing the courthouse doors to injured individuals.” Chemerinsky offered the following critique of the decision:The high court's decision is particularly troubling because it is based on the Federal Arbitration Act, which states that contracts providing for arbitration...

Read more »

Corporations Rush to Kill Consumer Rights Following AT&T v. Concepcion Decision

Only three weeks have passed since the Supreme Court’s decision in AT&T Mobility v. Concepcion gave corporations a license to steal from the public.As American Lawyer (subscription required) reports, that has proven to be plenty of time for corporations to rush to court and use the decision as a basis for throwing out lawsuits by consumers who claim that the corporations cheated them out of money.In AT&T Mobility, the Supreme Court handed corporations a sweeping legal victory by allowing them to write clauses into the fine print of contracts that force consumers to give up their right...

Read more »

Will BigLaw finally catch up to the rest of us?

I read with great interest Maura O'Connor's recent blog post on re-engineering real estate law.  It was a good post for what it is, except that I had to say to myself: "Isn't it about time the large law firms caught up with the rest of us?"(Full disclosure: I was, some ten+ years ago, an associate at the Chicago office of Seyfarth Shaw, the firm where Ms. O'Connor is now a partner.  [She came on board after I left, as Seyfarth did not at the time have a real estate practice in its California offices.] I had a wonderful experience there and many of my former colleagues are...

Read more »

AFJ Condemns Effort to Steer Oil Cases to Friendly Courts

PRESS RELEASEAlliance for Justice Condemns Cynical Effort by Big Oil to Steer Oil Drilling Cases to Friendly CourtsWashington, D.C., May 11, 2011–Alliance for Justice today condemned Section 202 of H.R. 1229, legislation that would mandate that civil litigation related to oil drilling in the Gulf of Mexico be steered exclusively to courts in the Fifth Circuit, many of whose judges have notorious connections to the oil and gas industry. The section’s only purpose is to ensure that cases originating in Florida and Alabama, and that otherwise would be heard in the Eleventh Circuit, are brought to...

Read more »

Stephen Higginson Nominated to the Fifth Circuit Court of Appeals

President Obama has nominated Steve Higginson to the United States Court of Appeals for the Fifth Circuit. Mr. Higginson, a former editor-in-chief of the Yale Law Review, is currently an Assistant United States attorney in Louisiana.With Mr. Higginson’s nomination, there are now 10 nominees pending for the 21 vacancies in our federal appellate courts.For the most up-to-date and comprehensive information on judicial nominations, visit the Alliance for Justice’s Judicial Selection Project webpag...

Read more »

Senate Confirms Edward Chen to District Court Seat in San Francisco

Last night, the Senate confirmed Ed Chen to the Northern District of California on a vote of 56-42. The vote represents a major victory for Senators Feinstein and Boxer, the Asian-American community, the public interest legal community, and everyday Americans who deserve highly qualified judges.Judge Chen is the first Asian American to serve as a federal district court judge in San Francisco. He has had a distinguished career both as a federal magistrate judge and as an attorney for the American Civil Liberties Union. Originally nominated on August 6, 2009, he had been pending for longer than...

Read more »

Four good reasons to have a closing checklist

Lawyers love checklists. They love checking little boxes and ticking off each portion of a deal as it is finished, culminating (hopefully) in the closing of a transaction.Much as I like to chuckle about this, checklists serve very important purposes.  When I started as a real estate lawyer, I thought that my prodigious memory could handle all the details and that I didn't need to spend the time working on them.  My mentors fortunately convinced me otherwise before I fell into bad habits, and they were right. (See #2 below.) I therefore have a checklist for every commercial real estate...

Read more »

Five good reasons to call me first

Okay, time to fess up: I am in the business of making money as a real estate attorney.  Gee, imagine that!  But that does not mean I always get the call from a client or a prospective client, or get it in time.  Here are some real life (modified a little to protect confidentiality and all that) examples of clients who should have called me first before doing something:1.  Oh, it was only a letter of intent.  I figured you could just fix it up in the contract.  Maybe yes, maybe no - and for a variety of reasons.  Does the letter of intent say it is non-binding? ...

Read more »