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Posted 08 Jul 2014 in Commentary
Litigation offers attorneys many opportunities to choose how they will behave and what they will say. youre it The best course is to take the high road at every opportunity.  Rudeness, profanity, throwing things, hitting people, we all know how the ugliness starts and how far it can progress.  A small meanness may be reciprocated, then followed by an escalation and tit for tat.  Once it starts, unprofessional behavior may be very difficult to stop or to confine to one specific case. All attorneys are held to a high standard by the law and the rules of professionalism and civility.

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 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 30 May 2014 in Commentary, Tips and Tactics
String cites are almost universally condemned.  paperJudges at all levels criticize string cites.  Minority and dissenting judges criticize majorities that use string cites, and vice versa but to a lesser extent.  Attorneys criticize the string cites in their opponents’ briefs.  Law reviews insult string cites routinely. What distinguishes a string cite from a list of cases that support the stated proposition?

Posted 08 May 2014 in Commentary
When is a judgment a judgment for purposes of res judicata or the doctrine of full faith and credit when the judgment is obtained in one court and sought to be enforced in a different court?  Dictionary Many possible answers come to mind: when the judgment is entered, when the time for appeal has elapsed, during the pendency of an appeal for which no supersedeas bond was provided, when any appeal of the judgment is finished, when the judgment is final in the court that entered it, when the judgment is final in the court in which enforcement is sought. There may be a State and a circumstance in which every one of these possible answers is the right answer.

Posted 06 May 2014 in Commentary
Justice Kennedy is better known for his rhetorical flair than his practical guidance.church-state  But his majority opinion in Town of Greece v. Galloway provides a roadmap local governments can follow to stay out of trouble when beginning city council meetings with a prayer. Town of Greece resolves two issues:  whether prayers must be nonsectarian and whether prayers before city council meetings are coercive. The Court concludes that sectarian prayers that overtly refer to a specific faith are okay—to a point.  Sectarian prayers can go too far

Posted 06 May 2014 in Commentary
In our earlier post, we reported the Supreme Court’s decision in Greece v. Galloway, 8468059167_e8ebfeedbf_zruling that the Town’s prayer practice is not an unconstitutional establishment of religion. This post tracks some commentary on the case: SCOTUSblog has been providing analysis of the divided decision:
The stark difference between the majority opinion in the Allegheny County case and the Court’s new opinion in the Town of Greece case illustrated the progress made by Justice Kennedy toward the Court’s full embrace — although for differing reasons among five Justices who determined the outcome – of the “coercion” test in determining whether a government practice amounted to an “establishment of religion” in violation of the First Amendment.
Eugene Volokh of UCLA School of Law provides his reactions:

Posted 02 May 2014 in Case Notes, Commentary
Given the Supreme Court’s prominent role in deciding important issues of the day, it is easy to get caught up in the latest juicy Court mishap.  pollutionJustice Scalia erroneously depicted precedent in his dissent in EPA v. EME Homer City Generation, which had to be corrected. But don’t let that be the reason you read this blog post.  This case is important for local governments. The Clean Air Act’s Good Neighbor Provision prohibits upwind states from emitting air pollution in amounts that will contribute significantly to downwind states failing to attain air quality standards.  In EPA v. EME Homer City Generation the Supreme Court resolved two issues related to the Good Neighbor Provision.  Justice Ginsburg wrote the 6-2 opinion. The Court first considered how responsibility for air pollution should be allocated.

Posted 28 Apr 2014 in Case Notes, Commentary
Does an anonymous, unverified tip of dangerous driving justify a traffic stop? Yes, says a divided Supreme Court.highway stop In Prado Navarette v. California an anonymous 911 caller reported that a vehicle had run her off the road.  The Court held 5-4 that a police stop complied with the Fourth Amendment because, under the totality of the circumstances, the officers had reasonable suspicion that the driver was intoxicated.  When police stopped the Navarette brothers they smelled marijuana.  A search of the vehicle revealed 30 pounds of marijuana. The Court’s rationale, in an opinion written by Justice Thomas, is as follows.  The tip of dangerous driving was sufficiently reliable because

Posted 25 Apr 2014 in Case Notes, Commentary
The Supreme Court’s recent affirmative action ruling should be viewed through the lens of public employment not just public universities.Supreme Court3 In Schuette v. Coalition to Defend Affirmative Action the Supreme Court held 6-2 that voters may by ballot prohibit affirmative action in public universities admission decisions.  While this case was limited to the use of race in public university admission decisions, Michigan’s constitutional amendment also prohibits the use of racial-preference in state and local government employment and contracting.  Presumably, these provisions are also constitutional.  As NCSL’s Affirmative Action:  State Action chart describes, a number of states prohibit the use of affirmative action in local government employment and contracting. In 2003 in Gratz v. Bollinger and Grutter v. Bollinger,