Archive for July, 2011

A three-judge panel of the Fourth Circuit (Wilkinson, King, Agee) issued an unusual ruling in an unpublished per curiam opinion in Hyman v. Keller. North Carolina appealed the grant of a writ of habeas corpus to Terrence Hyman, currently serving a sentence of life without parole for the murder of Ernest Lee Bennett Jr. Rather than affirm or reverse, the Fourth Circuit stayed the appeal out of deference to a potential state resolution.

The district court granted the writ upon concluding that Hyman had been denied the right to counsel because Teresa Smallwood, a lawyer defending Hyman in his murder trial, also had represented a key trial witness, Derrick Speller. In the course of her representation of Speller, Smallwood had a conversation with Speller, Hyman argued, in which Speller identified a different man as the shooter.

As it came to the Fourth Circuit, the case had a complicated procedural history. North Carolina argued, among other things, that Hyman failed to exhaust his claim. The district court had rejected North Carolina’s exhaustion argument.  Instead of resolving North Carolina’s argument that the district court erred, the Fourth Circuit stayed North Carolina’s appeal to allow a North Carolina court to address the parties’ arguments in the first instance. As mentioned at the outset, this is an unusual disposition.

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“What is unconsciously motivated is not for that reason inaccessible, secret, arbitrary, with us being little balls tossed about by dark forces below that are not us and alien to us. Nor, in law, is the power of a judge, who is one of us and like us, therefore a blind impact from the unknown. We blend into the semiconscious, the subconscious, and the unconscious.

“The whole person acts and speaks. In talk and action and in writing one obtains evidence of what one thinks, oneself, as a whole, evidence that one then interprets, and not against some independently accessible conscious intent but as one would interpret any authentically meant writing. Words and means of expression come to mind. Then one sees them.

“So with the legal decision maker. She decides, or concludes she has decided. There is a motion of her mind. What does she decide? Happily she must justify her decision. She writes and looks, and the whole may surprise the part and summon her in a different direction. When she publishes, she reads what she writes in company. Where is her power, the power she has in and of herself as a judge? Her power beyond the case is in her text. And if there is an appeal in the case, to judge the judge’s text, her power even over the case itself is limited, to the degree she has genuinely sought what she truly thinks–which seeking is itself a limit on her power as she comes to the decision that is reviewed.”

Joseph Vining, From Newton’s Sleep IV.21, pp. 188-89.

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A short introduction to my Stanford Law Review piece on jurisdiction over Virginia’s challenge to the individual mandate: Health Care: Why Jurisdiction Matters | University of Richmond School of Law Alumni Magazine: Summer 2011.

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From Pope John Paul II’s 2000 address to the International Union of Catholic Jurists: “Catholic jurists do not possess a particular form of knowledge:  their Catholic identity and the faith that motivates them do not provide them with specific knowledge from which non-Catholics would be excluded. What Catholic jurists and those who share the same faith possess is the awareness that their work, passionately supporting justice, equity and the common good, belongs to the plan of God, who asks all human beings to recognize one another as brothers and sisters, as children of one merciful Father, and who gives them the mission of defending every individual, especially the weakest, and of building a society on earth that conforms to the requirements of the Gospel.”

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The Fourth Circuit was the first federal Court of Appeals to hear oral arguments in cases challenging the minimum essential coverage provision (a/k/a the individual mandate) in the Affordable Care Act. On May 10, a three-judge panel heard arguments in two cases: Liberty University v. Geithner and Virginia v. Sebelius. The first is an appeal from a decision of Judge Moon in the Western District of Virginia dismissing the challenge to the individual mandate for failure to state a claim. The second is an appeal from a decision of Judge Hudson in the Eastern District of Virginia granting summary judgment to Virginia on the ground that the individual mandate is unconstitutional (but severable from the remainder of the Act). Here are a few things to look for when the Fourth Circuit rules:

The Bottom Line: Will the court reach the merits of the individual mandate’s constitutionality in both cases? Much of the oral argument in Virginia v. Sebelius focused on alleged jurisdictional defects. The individual mandate imposes an obligation on individuals but not on states. Virginia traces its right to challenge the mandate to state legislation declaring (with some minor exceptions) that no Virginia resident shall be required to obtain or maintain insurance. Legislatures in several other states have passed similar laws. The federal government’s appeal in Virginia v. Sebelius squarely presents the question whether such legislation authorizes states to sue the federal government for a federal court ruling addressing the conflicting commands of state and federal law.

If the Court Gets to Yes, How: Although everything is speculative until the court rules, the panel at oral argument appeared more likely than not to uphold the individual mandate against the constitutional challenge that its enactment exceeded Congress’s limited and enumerated powers.  If the panel decision does uphold the mandate’s constitutionality, the grounds on which it does so could matter. The federal government has invoked not only Congress’s authority under the Commerce Clause and Necessary and Proper Clause, but also Congress’s power to tax. Thus far, no federal court has upheld the mandate as an exercise of the taxing power. Some courts have rejected the federal government’s reliance on the taxing power, while others have found it unnecessary to reach the issue after concluding that Congress’s power to regulate commerce was sufficient. Although most of the merits discussion at the oral arguments focused on the Commerce Clause and the Necessary and Proper Clause, the judges on the panel also expressed interest in analyzing the parties’ arguments about the extent of Congress’s taxing power. A desire to reach the merits of the taxing power arguments may explain an order for supplemental briefing by the parties to address a statute that bars certain challenges to the assessment of taxes.

Percolation Effects: One of the reasons that the Supreme Court does not get immediately involved in issues that arise in multiple lawsuits spread across the country is that the percolation of cases in the lower courts can help to clarify, and perhaps resolve, some issues. This process can aid the Supreme Court’s ultimate resolution by sharpening the arguments and developing the implications of various lines of reasoning. It will be interesting to see whether the Sixth Circuit’s opinions in the mandate litigation (Thomas More Law Center v. Obama) have informed any of the Fourth Circuit’s opinions, and, in turn whether the Fourth Circuit’s opinions inform the Eleventh Circuit’s and, ultimately the Supreme Court’s. (Of course, there is always the chance that the Eleventh Circuit’s opinions will come down before the Fourth Circuit’s in which case it will be interesting to see whether the Eleventh Circuit’s opinions influence the Fourth Circuit’s.)

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I’ve opened up this space where I have been trying out some thoughts, in the thought of possibly drawing others toward them at some point. No point in waiting any longer. So, if you walk through the open door, welcome!

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NFL win for Clement over Olson

Today’s Eighth Circuit ruling reversing the injunction against the NFL lockout was a win for Paul Clement over Ted Olson in a clash of legal titans.

Clement and Olson are on the opposite sides of the debate over the constitutionality of defining marriage as between a man and a woman (though not on opposite sides of the same case, as in the NFL dispute). Clement represents the Bipartisan Legal Advisory Group defending the constitutionality of the federal Defense of Marriage Act. Olson represents the plaintiffs challenging California’s Proposition 8.

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