Posted 26 Jun 2014 in Commentary
Judicial opinions enjoy no copyright, so some may contend that copying from judicial opinions without attribution may not be plagiarism. paperThey would be wrong. Copying another’s writing is plagiarism even if there is no copyright and even if some sentences are added or deleted. Moreover, even copying multiple citations from another’s work is plagiarism.  In re Burghoff, 374 B.R. 681, 685 (Bankr. N.D. Iowa 2007), following Frith v. State, 263 Ind. 100, 325 N.E.2d 186, 188 (1975). Plagiarism in brief writing is disfavored at best, and there are multiple examples of judicial displeasure.

Posted 24 Jun 2014 in Case Notes
Had Utility Air Regulatory Group v. EPA gone the other way, it would be a big deal for cities.352250460_ee2f9e5565  But it didn’t. Cities own many small stationary sources that emit greenhouse gases and will benefit from not having to obtain permits for them. The Clean Air Act regulates pollution-generating emissions from stationary source (factories, power plants, etc.) and moving sources (cars, trucks, planes, etc.).  In 2007

Posted 20 Jun 2014 in Case Notes, Commentary
The Supreme Court held unanimously that the First Amendment protects a public employee who provides truthful sworn testimony, compelled by a subpoena, outside the course of his or her ordinary responsibilities.5554035521_f6b59ccafa_n The good:  The Court was clear that if employees admit to wrongdoing while testifying they can still be disciplined and that false or erroneous testimony or testimony that unnecessarily discloses sensitive, confidential, or privileged information may balance the Pickering scale in the employer’s favor. The bad:  The Court read “official job duties” narrowly to exclude speech about information merely learned at the job. The ugly:  The Court doesn’t decide the obvious next question:  is an employee’s truthful sworn testimony, which is part of an employee’s ordinary responsibilities, protected by the First Amendment?

Posted 20 Jun 2014 in Case Notes
If you eat, talk on the phone, and escape the rain in your car, are you using the car "as living quarters either overnight, day-by-day, or otherwise?"Homelesscar What if you load up the car with personal belongings for a camping trip? Or drive an RV to go on vacation? In the Ninth Circuit's view, a City of Los Angeles code provision designed to outlaw sleeping in a vehicle on City streets and parking lots may or may not criminalize all these activities and could lead to other selective enforcement—particularly against the homeless and poor. The court therefore ruled that the provision is unconstitutionally vague. The decision is Desertrain v. City of Los Angeles, No. 11-56957 (June 19, 2014). Los Angeles Municipal Code Section 85.02 outlaws

Posted 20 Jun 2014 in Tips and Tactics
A variety of federal and state laws require that notice of an appeal be given or that a copy of the appellate brief be served on the U.S. Attorney General or the applicable state attorney general.OAG  Failure to comply may delay the appeal or result in other sanctions.  For example, California provisions declare: “No judgment or relief, temporary or permanent, shall be granted or opinion issued until proof of service of the brief or petition on the Attorney General and district attorney is filed with the court.”  Cal. Bus. and Prof. Code §§17209, 17536.5; accord, id. §16750.2. Federal law also requires notice and grants a right of intervention to the United States Attorney General or the California Attorney General, respectively, when the constitutionality of federal or state statutes affecting the public interest is challenged in federal litigation to which the federal or state government or their agencies or employees are not already parties.

Posted 19 Jun 2014 in Case Notes

This morning, the Supreme Court decided Lane v. Franks, a case that this blog previously covered here. The Court ruled unanimously that the First Amendment protects a public employee who provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities. Image courtesy of Flickr by Mark Fischer (creative-commons license, no changes made)....

Posted 16 Jun 2014 in Monday Morning Review
Here are last week's published decisions involving local governments:SCT pillars Third Circuit
  • Rosano v. Township of Teaneck, No. 13-1263 (June 10, 2014) (in action by current and former police officers against Township alleging violation of Fair Labor Standards Act because it did not pay proper overtime and provide compensation for attending daily roll calls and putting on and taking off uniforms, affirming grant of summary judgment for Township).
Seventh Circuit

Posted 13 Jun 2014 in Tips and Tactics
Judges are substantially governed by rules—local rules, rules of evidence, state or federal rules for trial courts or appellate courts.FedPrac  Rules do not normally determine the merits, although rules provide the structure or framework within which the merits can be considered fairly to both sides.  Not surprisingly, judges typically know the applicable rules quite well.  The judge may have drafted the local rule specifically to address an issue arising with some frequency in that judge’s courtroom.  Or the judge may have been reversed for failure to enforce the rule. Judges expect attorneys to know the rules.  Attorneys who practice in multiple courts may need to learn and use many sets of rules.  Just do it.  The alternative is to be sorry.  Courts are not gentle with attorneys who fail to read and follow the rules, as reflected in the following, drawn from a wide variety of available examples.  In some instances, the court decision effectively sets up a malpractice action against the careless attorney.

Posted 10 Jun 2014 in Case Notes
If preemption is your passion, this Supreme Court term has been a disappointment.Supreme Court3 CTS Corp. v. Waldburger is one of just two preemption cases this term. To the extent local governments benefit from decisions finding no preemption, this case is a victory. But practically speaking, it is probably a Pyrrhic one. In CTS Corp. v. Waldburger, the Supreme Court held 7-2 that the federal Superfund statute, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), does not preempt state statutes of repose.