http://www.worldlawdirect.com/forum/ Issues concerning a specific court or adjudication system, arbitration, etc. en Sat, 21 Nov 2009 20:42:23 GMT vBulletin 60 http://www.worldlawdirect.com/forum/images/vbseo_skin_2.0/misc/rss.jpg http://www.worldlawdirect.com/forum/ http://www.worldlawdirect.com/forum/courts-decisions-appeals/31774-will-gun-control-case-prompt-constitutional-reawakening.html Fri, 20 Nov 2009 00:40:10 GMT Image: http://online.wsj.com/media/scotus_D_20091119180614.jpg Our interest in a single Supreme Court case has perhaps never been as high as it...

Our interest in a single Supreme Court case has perhaps never been as high as it is in a case currently being briefed. The issues are fascinating on several levels, and the potential impact of a ruling is big.

The case is McDonald v. City of Chicago, for which the court granted cert on Sept. 30. The petitioners in the case, a group challenging a gun-control ordinance in Chicago, filed their brief with the court earlier this week. Were the court to adopt their position — something well within the realm of possibility — we could be looking at a significant shift in the way the justices view the Constitution and individual rights.

For background, we suggest you read Jess Bravin’s story on the case, from March, as well as our blog post on Bravin’s article.

At issue, again, is the constitutionality of a gun-control ordinance in Chicago. The Supreme Court shot down Washington, D.C.’s gun-control ordinance two terms ago, in D.C. v. Heller. But the Heller opinion dealt with a federal statute, not a state statute, and several federal courts have since ruled that the Heller opinion does not apply to state statutes. That is, the Second Amendment does not (yet) apply to the states.

The Seventh Circuit, in Chicago, rejected arguments to the contrary in the McDonald case earlier this year, citing an 1886 Supreme Court decision holding that the Second Amendment placed no limits on state authority. The Seventh Circuit ruled that only the Supreme Court could say whether the Second Amendment should be read otherwise.

So the question is this: if the court wants to overturn the Seventh Circuit and shoot down the Chicago ordinance, how does it do it? How does it justify an extension of the Second Amendment to the states?

And this is where things get interesting. In their brief filed earlier this week, the petitioners advocate breathing new life into the moribund Privileges or Immunities clause of the 14th Amendment. Specifically, they argue that an originalist reading of the 14th Amendment dictates that the right to keep and bear arms is a “privilege” and “immunity” that a state must not abridge. (The National Rifle Association this week filed an amicus brief supportive of the petitioners’ position. The respondents’ brief isn’t due until the end of December.)

However, resuscitating the PI Clause through an originalist lens could open the door advocating for the existence of other types of rights that have yet to be acknowledged by the Court. For instance, those on the left might look for more room for personal rights like privacy, while those on the right see more protection for business from regulation. In either case, it could open the door for judicial determination of what the privileges or immunities actually are.

Of course, nothing says the justices need to use the PI Clause, which was largely neutered by the Slaughter-House Cases opinion in 1868, in order to extend the Second Amendment to the states.

But at least one justice, Clarence Thomas, has voiced a willingness to revisit the issue. In a dissent in a 1999 case, Thomas wrote: “the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of our 14th Amendment jurisprudence.” To clarify things, “I would be open to re-evaluating its meaning in an appropriate case.”

Photo: Getty Images





]]> Courts, Decisions, Appeals WSJ_law_blog http://www.worldlawdirect.com/forum/courts-decisions-appeals/31774-will-gun-control-case-prompt-constitutional-reawakening.html http://www.worldlawdirect.com/forum/courts-decisions-appeals/31750-whose-fault-katrina-damage-judge-partly-blames-army-corps.html Thu, 19 Nov 2009 14:10:44 GMT

Was the devastation caused by 2005’s Hurricane Katrina an Act of God, or something at least partly preventable? A federal judge in New Orleans on Wednesday ruled the latter, that the Army Corps of Engineers’ failure to properly maintain a navigation channel led to massive flooding in Hurricane Katrina. Click here for the AP story, here for the NYT story, here for the Times Picayune story.

Duval sided with five residents and one business who argued the Army Corps’ shoddy oversight of the Mississippi River-Gulf Outlet led to the flooding of New Orleans’ Lower Ninth Ward and neighboring St. Bernard Parish. He said, however, the corps couldn’t be held liable for the flooding of eastern New Orleans, where one of the plaintiffs lived.

“It is the court’s opinion that the negligence of the corps, in this instance by failing to maintain the MR-GO properly, was not policy, but insouciance, myopia and shortsightedness,” wrote Duval, in his 156-page opinion.

Duval awarded the plaintiffs $720,000, or about $170,000 each, but the decision could eventually make the government vulnerable to a much larger payout. The ruling should give more than 100,000 other individuals, businesses and government entities a better shot at claiming billions of dollars in damages.

Joe Bruno, one of the lead plaintiffs lawyer, said the ruling underscored the Army Corps’ long history of failure to properly protect the New Orleans region.

“It’s high time we look at the way these guys do business and do a full re-evaluation of the way it does business,” Bruno said.

The government is expected to appeal the ruling. “All of these claims are currently the subject of litigation before the Federal District Court in New Orleans,” Ken Holder, a spokesman for the Corps, said in a statement. “Until such time as the litigation is completed, including the appellate process up to and through the U.S. Supreme Court, no activity is expected to be taken on any of these claims.”

Photo: AP





]]> Courts, Decisions, Appeals WSJ_law_blog http://www.worldlawdirect.com/forum/courts-decisions-appeals/31750-whose-fault-katrina-damage-judge-partly-blames-army-corps.html http://www.worldlawdirect.com/forum/courts-decisions-appeals/31659-lynne-stewart-s-conviction-upheld-stewart-ordered-jail.html Tue, 17 Nov 2009 18:50:09 GMT Image: http://online.wsj.com/media/stewart_blog_20070926101846.jpg Earlier Tuesday, the Second Circuit issued its long-awaited ruling on lawyer...

Earlier Tuesday, the Second Circuit issued its long-awaited ruling on lawyer Lynne Stewart, upholding Stewart’s 2005 conviction. Click here for the walloping 191-page opinion, which includes separate writings from Judges John Walker, Guido Calebresi and Robert Sack; here for the early AP story; here, here and here for earlier LB posts.

Stewart was convicted in 2005 for passing along a message from her client, Sheik Omar Abdel Rahman, who is serving a life sentence for plotting to blow up several landmarks in New York City.

Prison officials had required Stewart to refrain from carrying messages on his behalf. But in one instance, she called a reporter in Cairo to announce that Rahman was urging a terrorist organization to withdraw from a ceasefire with the government of Egypt.

The Second Circuit ordered Stewart to begin serving her prison sentence — a little more than two years. Stewart had been out on bail pending her appeal.

The appeals court also ordered the trial judge to reconsider the length of her sentence, because the judge didn’t consider whether she committed perjury at trial.

According to a NYT story from 2007, Stewart admitted to having been “cavalier” in the way she followed certain regulations governing communications with her client, but argued that the human bond between a lawyer and client is critical to the lawyer’s role as legal adviser. Said Stewart: “I was representing a client, and I would do it again, but I would do it in a way that would better insulate me.” Her main regret, she reportedly said, was that she was unaware the government was secretly taping her conversations with her client.

Repping Stewart (click here for a look at her interesting Web site): New York lawyer Josh Dratel.





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