Law blog roundup

Ally McBealHappy Monday to everyone and a special welcome back to the office to those who attended the Maryland State Bar Association’s Annual Meeting. Here are some links to peruse while you rub aloe into your sunburn:

– The federal judge who ruled Microsoft was “a monopoly” died Saturday.

– The New York Times has a profile of the federal judge in the morning-after pill case.

– The problem with a new state law in Florida that speeds up the execution process.

– A Tennessee judge is reminding female lawyers of appropriate courtroom attire. (HT: Above the Law)

Referendum on referendums still on hold

Del. Jon Cardin

Del. Jon Cardin, D-Baltimore County

The legal issues surrounding voter referendums are as nuanced as the signatures that often come under scrutiny during court battles over the petitions.

John Henry Smith, for example, can sign and print his name on a petition and it would be counted. But if he were to sign “Jack Smith” and print “J. H. Smith,” the signature wouldn’t be permitted.

It’s why Del. Jon Cardin, D-Baltimore County, wants to make easier the signature requirement for referendum, despite the objections of Democratic leadership in the General Assembly.

“Predictability is important in this process for petitioners and government,” Cardin said during the Administrative Law Section’s panel discussion at the Maryland State Bar Association’s Annual Meeting in Ocean City. “If you create a system that creates certainty, we are doing the right thing in terms of public policy no matter your politics.”

Cardin, who chairs an election law subcommittee in the House of Delegates, said legislation to reform the petition process was not passed in the General Assembly this year because of the “volatile nature” of the session (including the gun control and death penalty bills) and because Democratic leaders felt it would be too partisan to pass such legislation so close to next year’s election.

Speaking of the 2014 election, the primary was moved up to June in part to accommodate a federal law that requires ballots to be finalized 45 days before an election so they can be sent to military personnel overseas. (The September date was too close to November’s general election.)

The legal timeline to appeal a ballot question moves at a breakneck pace by legal standards. A case can go from a circuit court to the Court of Appeals in 30 days, members of the panel said.

But “can” does not mean “will,” especially at the trial court level. How much evidence is admissible at trial varies from judge to judge, with some allowing very little evidence and others allowing six months of discovery, the panelists said.

One thing most judges don’t want to do, according to Francis J. Collins, is go through tens of thousands of signatures that might be contested.

“Form takes over substance,” said Collins, of Kahn, Smith & Collins P.A. in Baltimore. “Circuit court judges and clerks don’t have the time.”

A final fun fact from the panel: Maryland is one of two states that solely have a referendum, meaning voters cannot adopt new laws, only repeal laws passed by the legislature.

Law blog roundup

RockwellA happy soggy Monday to you on a week where many of the state’s lawyers will be heading “downy ocean” and we all celebrate Old Glory. Here are some law links to chew on:

– As online privacy dominates the news, Ron Miller of the Maryland Injury Lawyer Blog has details on a new Maryland Rule concerning personal information and court records.

– Why some lawsuits over Obamacare will come from the health care legislation’s supporters.

– “A Cuyahoga County prosecutor was fired this week after he admitted posing as a woman in a Facebook chat with an accused killer’s alibi witnesses in an attempt to persuade them to change their testimony.” (HT: Above the Law)

Steve Martin and his banjo (HT: Lowering the Bar)

Chewbacca and his light-saber cane

A rejection of the highest order

Click to enlarge.

Paul Carlin, the Maryland State Bar Association’s executive director, showed me Thursday the newest piece of memorabilia that will be hanging at the organization’s Baltimore headquarters: a letter from then-U.S. Supreme Court Chief Justice Warren E. Burger declining an invitation to the 1984 annual meeting in Ocean City.

The letter will join other famous notes addressed to the bar association from two of Burger’s predecessors, William Howard Taft and Roger B. Taney (although Carlin said Taney’s note was written when he was a lawyer).

Burger’s letter is addressed to incoming Bar Counsel Glenn Grossman as “chairman” of the MSBA. Grossman told me he found the note recently while doing some office cleaning.  He was organizing a program for the 1984 meeting about correctional reform that touched on “factories behind fences’” an idea Burger supported.

Alas, the chief justice had to decline the speaking invitation because June is “an extremely busy month at the Court” with the “pressure of opinion writing” as the court’s term ends.

“Please extend my best wishes to all those participating in the meeting,” Burger concluded.

Law blog roundup: A move worth its SALT?

Happy Monday! Here are some law blog posts for you to digest before you head downy ocean for the MSBA annual meeting:

  • Former U.S. Attorney General Alberto Gonzalez has been teaching political science at Texas Tech University and peddling an autobiography, but he hasn’t been able to get a publisher to bite. “Given all the decisions that I was a part of, the decisions I witnessed, and the decisions I made, I think it will be something that will be of interest and I hope it will be a useful contribution to the historic record of the Bush legacy,” Gonzales tells Main Justice. Gonzalez is hoping book sales might generate some cash to cover his legal bills, which are extensive given the ongoing investigation into the attorney general firings that happened during his term. Would you plop down $25 for the hardcover?
  • Our sister blog, DC Dicta, aggregates the latest commentary and analysis on the Kagan papers, the 46,000 pages of documents released Friday covering Supreme Court nominee Elena Kagan’s work in the Clinton administration. Republican Sen. Jeff Sessions tells Reuters he’s already spotted “a leftist philosophy and an approach to the law that seems more concerned with achieving a desired social result than fairly following the Constitution.” Should make for an interesting Senate confirmation hearing, which is scheduled to start June 28.
  • Not only do Wall Street bankers make scads of money, they’re also too attractive? (Hat Tip: Dealbreaker)
  • The Society of American Law Teachers (SALT) wants law schools to quit giving LSAT scores to U.S. News, which publishes highly influential annual college rankings. SALT believes the pressure to nab students with high test scores is undercutting efforts to admit diverse classes. Above the Law has its own take: “You gotta love it when a bunch of law professors get in a room and collectively decide that silence is what prospective law students are really looking for these days.”

Subpoenaing the state’s attorneys — in the 1980s

It turns out the attempt by lawyers for a capital murder defendant in Anne Arundel County to subpoena all 24 top prosecutors in Maryland was not a first.

Ocean City lawyer Skip Townsend tells me that back in the 1980s, he and his co-counsel in a capital case in Montgomery County called all of the state’s attorneys to testify about how they decided when to seek the death penalty. The argument, then as now, was that the death penalty is applied differently in different counties.

Unlike the Anne Arundel case, where the judge yesterday quashed the subpoenas as irrelevant, in Townsend’s case he was allowed to bring in the top prosecutors. All but three attended. “It was fascinating and it was fun,” Townsend said.

The defendant, James Calhoun, got the death penalty anyway for the killing of a police officer and an alarm system technician during a robbery. The Court of Appeals gave him a new sentencing hearing, and the second time, he was sentenced to life without parole.

The art of a SCOTUS appeal

goldstein.jpgThomas C. Goldstein had a busy day yesterday at the Maryland State Bar Association’s Annual Meeting in Ocean City.

Goldstein, a partner at Akin Gump Strauss Hauser & Feld LLP in Washington D.C. and founder of the popular SCOTUSblog, spoke at two educational sessions. One was about the U.S. Supreme Court under President Barack Obama; the other, which I attended and wrote about, was on effective appellate representation.

Goldstein has argued 21 cases before the Supreme Court and offered advice on how to get a petition for writ of certiorari granted and, if you’re lucky, how to argue your case before the high court.

I say “lucky” because Goldstein estimated the court grants approximately 1 percent of the 7,500 cert petitions it receives.

“They’re looking to deny cert,” he said.

Goldstein said the cert petitions granted answer four questions:

  • Why this question?  (And it must be a clear question of law);
  • Why this court: Can the issue be resolved by Congress or a regulatory agency instead?
  • Why this case: What makes this case the perfect vehicle to resolve this question? And,
  • Why now: Is there a sense of urgency to decide this case?

When it comes to arguing a case before the high court, Goldstein prepares through moot courts, practicing as many as a half-dozen times before the real deal.

He has two strategies: the principle of relative advantage (what can I bring to the conversation?) and the art of the possible (realizing you will not convince all of the judges to change their minds). Sometimes Goldstein will focus on one judge and discuss only one issue.

“Think modestly about what you can accomplish at oral arguments,” he said.