Without notification, an arm of the U.S. Treasury Department shut down eighty web sites owned by a British national who lives in Spain and sells trips to Europeans because the travel agency has allegedly helped Americans evade restrictions on travel to Cuba, according to a New York Times story.

The Treasury's Office of Foreign Assets Control ordered the sites shut down without a court proceeding and despite the travel agency's statement that it is not interested in American tourists. Yale law professor Susan Crawford noted that because many large domain name registers are based in the U.S., OFAC has control "over a great deal of speech – none of which may be actually hosted in the U.S., about the U.S. or conflicting with any U.S. rights."

Doug Kendall, who discussed the conservative judicial project in this excellent introduction to the 2007-2008 Supreme Court term, examines the Court's decisions thus far this term in an article in Slate, concluding that "by investing heavily in legal strategy and working patiently in case after case, the [Chamber of Commerce] has won victories that have gradually shifted the ground rules in its favor." He writes:

With the Supreme Court term moving past the halfway mark, corporate America's long-term investments in the federal judiciary are yielding impressive returns. . . . In the wake of [Lewis] Powell's memo [that, 37 years ago, alerted the Chamber of Commerce to a "neglected opportunity in the courts"], the business community seeded a vast body of scholarship and created a nationwide network of pro-business legal organizations. This investment has quietly borne fruit for decades—and, this term in particular, landed corporate America the wins that thrilled [the Chamber of Commerce's Executive Vice President Robin] Conrad, and more besides.

In a reversal, Attorney General Michael Mukasey will not be awarded Boston College Law School's Founder's Medal when he speaks at commencement, according to a Boston Globe report. As reported on ACSBlog last month, students, faculty, and alumni criticized Mukasey's selection as commencement speaker because the Attorney General refused, during his confirmation hearings, to declare that waterboarding constitutes torture.

In a memorandum, Boston College Law School Dean Garvey wrote "With [the controversies that have arisen over commencement invitations] in mind, we have decided that in the future we will not routinely confer Founder’s medals at graduation – a rule that will apply to this and future years."

The Globe reports that critics say the announcement "was designed to defuse criticism and find a middle ground to avoid rescinding the invitation."

More information is available via Eagleionline, Boston College Law School's online student newspaper.

In an op-ed on the upcoming Supreme Court gun-control case, Larry Tribe writes that "a legislature's choice to limit the citizenry to rifles, shotguns and other weapons less likely to augment urban violence need not, and should not, be viewed as an unconstitutional abridgment of the right of the people to keep or bear arms."

ACS will host a panel discussion on District of Columbia v. Heller on March 13 in Washington, D.C., featuring Carl Bogus, Dave Kopel, John Payton, and moderator Dahlia Lithwick. (RSVP). Starting this Monday, ACSBlog will host an online discussion, led by Mark Tushnet and Adam Winkler, on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns."

Federal District Court Judge William H. Pauley of the Southern District of New York adopted Magistrate Judge James Francis's reasoning that "the exercise of peremptory challenges on the basis of national origin is prohibited by the Fourteenth Amendment." A New York Times story described Judge Pauley's actions as affirming that "allowing American-born blacks on a Bronx jury but systematically excluding West Indians is discriminatory."

According to Judge Pauley's opinion, during jury selection, the prosecutor used peremptory challenges to exclude four prospective jurors from Jamaica and one from Trinidad, after which defense counsel objected that the prosecution had "knocked off every juror of West Indian descent." The state trial judge upheld the removal of the five jurors as insufficient evidence of discrimination, noting "that 'black people from the West Indies' was not a group constitutionally entitled to protection in this circumstance."

The state appellate court agreed, after which a habeas appeal was filed in federal court, resulting in Judge Francis's report and Judge Pauley's opinion that national origin is a prohibited basis for peremptory challenges. Judge Pauley ordered a hearing where "the prosecutor will be required to present legitimate non-discriminatory reasons for her exercise of peremptory challenges against the five prospective jurors of West Indian descent. Then the court will determine whether [the defense counsel] has satisfied his burden of showing discriminatory intent."

The Volokh Conspiracy is hosting an excellent discussion on advice for soon-to-be judicial clerks.

The University of Georgia School of Law is hosting the third annual "Working in the Public Interest: Challenging Poverty Through Law" conference on April 4-5, 2008. 

The conference will be held in Athens, Georgia, at the University of Georgia School of Law, approximately 65 miles northeast of Atlanta.

State legislators explored ideas on expanding voting rights and increasing citizen participation in the electoral process at a panel discussion hosted by ACS on February 25.

Below are video clips from the panel discussion that featured Representative Terrance D. Carroll (CO), Senator Jamie Raskin (MD), Representative Sandy Rosenberg (MD), and moderator Jocelyn Friedrichs Benson of Wayne State University Law School. Video of the event is available here.

David Kirby writes in the Huffington Post that the U.S. government "has quietly conceded a vaccine-autism case in the Court of Federal Claims." According to the Legal Times, nearly 5,000 autism claims have been filed with the U.S. Court of Federal Claims, which must determine whether "the combination of certain vaccines and thimerosal, a mercury-based vaccine preservative, can cause autism."

Under the 1986 National Childhood Vaccine Injury Act, claims for injuries caused by vaccines are heard before the U.S. Court of Federal Claims in a no-fault proceeding. "The compensation system was meant to handle the rare but inevitable injuries that result from allergic and other reactions to vaccines," the Legal Times noted. The lawsuits are brought against the U.S. government, not vaccine manufacturers; special masters act as trial judges (there is no jury); pain and suffering damages are capped at $250,000 (although awards are available for lost wages, medical and educational costs, and attorneys' fees); and compensation awards are funded by a 75 cent excise tax paid on each vaccine.

According to Kirby, in one of the three test cases regarding the alleged link between vaccines containing thimerosal and the onset of autism that were under consideration by a three-member panel of Special Masters, the government conceded that "compensation is appropriate." The following language is from a purported government filing, signed by Peter Keisler, Assistant Attorney General, which is under seal (and published by Kirby):

ACS released an Issue Brief today entitled “A Call to Protect Civilian Justice: Beware the Creep of Military Tribunals,” by Anthony F. Renzo, Professor of Law at Vermont Law School.

Professor Renzo calls the Bush Administration’s claim of authority to subject civilians detained in the United States to trial by military commission unprecedented in scope and lacking in historical support. He explains that “[t]he Constitution places the power to punish a civilian for wrongdoing, including criminal conduct in support of enemy organizations, in the hands of an independent civilian court and jury.” 

Professor Renzo notes “[t]he very purpose of the original English common law right to trial by a civilian jury was to protect against the oppression of the King’s use of military courts and judges who owed their loyalty to the King.” He concludes that constitutional text and tradition require that civilians be provided with a civilian jury trial unless a civilian court determines that the detainee is “either under the command of the enemy’s armed forces or engaged in battlefield hostilities against American forces.” 

According to an Associated Press story, on Friday, Attorney General Michael Mukasey refused to permit U.S. Attorney for the District of Columbia Jeffrey Taylor to bring contempt citations against two senior Bush administration aides before a grand jury despite being directed to do so by the U.S. House of Representatives.

In H. Res. 979, the House of Representatives instructed Speaker of the House Nancy Pelosi to certify to U.S. Attorney Taylor that White House Chief of Staff Joshua Bolton and former White House Counsel Harriet Miers refused to produce documents and testify before the Judiciary Committee as directed by subpoena, and direct the U.S. Attorney to bring legal proceedings against the two aides “in the manner and form provided by law.” Bolton and Miers had refused to comply with a subpoena requiring testimony on the White House’s firing of federal prosecutors.

Describing the action as a prior restraint on First Amendment free speech rights, media and public interest organizations petitioned San Francisco District Court Judge Jeffrey White to reverse his orders of last week that shut down the website Wikileaks. 

Wikileaks encourages users to upload leaked government and corporate documents, and was disabled after an ex parte proceeding in which a bank complained that a disgruntled former employee had uploaded documents that violated Swiss and Cayman Islands bank secrecy laws. One attorney likened the permanent injunction to "shut[ting] down a newspaper because of controversy over one article."

On Wednesday, the Senate Judiciary Committee heard testimony on amending the False Claims Act to "explicitly empower federal workers" to file lawsuits to recover money "when the federal government is the victim of fraud or contracting overcharges."

The law, initially enacted to attack war profiteering during the Civil War, returned more than $20 billion to the U.S. government in the last twenty years, according to Senator Leahy, but has been narrowly construed by recent federal court decisions.

The Connecticut Supreme Court held that a widow of a judge who died eight years ago could not sue the state for negligence on the grounds that her husband’s work habits had caused his death. 

The court found that a law passed by the state to extend the statutory limits for such a suit applied only to this one individual and, while “well intentioned,” the law “created a preference that cannot withstand constitutional scrutiny.”

ACS's Duke Student Chapter is our newest Student Chapter of the Week. This academic year, it hosted a Brown Bag Lunch Series that covered the recent U.S. Attorney firings, school integration from both the parental and policy standpoints, immigration reform, presidential elections and the Constitution, the constitutionality of military commissions and the impact of electing judges and prosecutors. 

Speakers at events have included Erwin Chemerinsky, Neil Seigel, Colon Willogby, Anurima Bhargava, Judge Boyce Martin of the U.S. Court of Appeals for the Sixth Circuit, and Judge Marcia Morey of the Durham County District Court.  Since the beginning of 2008, the chapter has had two new Brown Bag Lunch discussions covering a progressive vision of the Constitution and Medellin v. Texas. 

Next week, the chapter will be holding a public moot court round to prepare for ACS's 3rd Annual Constance Baker Motley National Moot Court Competition in Constitutional Law.  For more great ideas from other chapters, click here for a list of all ACS events.

Stories

• Should the Supreme Court allow an award of punitive damages arising from the Exxon Valdez disaster to stand?
• Guest blog on judicial nominations.
• Linda Greenhouse to retire.
• Current state regulations on judicial recusal compiled by Gavel to Gavel.
• The NLRB is now requiring the display of an American flag at every union representation election.

Resources

• Supreme Court argument schedule and cert grants for the week.
• OSI report on Justice Reform.
• The ACS Student Chapter of the Week.
• This week’s congressional activities.

by Glenn Sugameli, Senior Legislative Counsel at Earthjustice

President George W. Bush is demanding that the Senate essentially abandon its constitutionally-mandated “advise-and-consent role” in selecting lifetime judges. Bush’s string of nominees is a blatant attempt to force the Senate into a Hobson’s choice: rubber-stamp his unilateral, extreme choices or create artificial vacancies that rally the President's narrow, right-wing base. Senators must Just Say No and insist they will only confirm nominees who are competent, fair and independent, and who demonstrate that they will uphold and enforce our Constitution and laws.

A Tale of Two Nominees

Major new developments regarding President George W. Bush’s torture policies focus on Jay Bybee and William J. Haynes, two of his nominees for lifetime seats on federal appeals courts.

On February 22, the Department of Justice’s Office of Professional Responsibility revealed that for more than three years it has been investigating whether an Aug. 1, 2002 DOJ legal memorandum improperly declared that interrogation methods were not torture unless they produced pain equivalent to that produced by organ failure or death. This memorandum, which was signed by Jay Bybee, as head of DOJ’s Office of Legal Counsel, was withdrawn in 2004.

The Justice Department is “examining whether the legal advice in [this and other] memoranda was consistent with the professional standards that apply to Department of Justice attorneys.” This is too late, however, to inform Senators’ advice-and-consent duty; on March 13, 2003 the Senate voted 74-19 to confirm Bybee’s nomination to the Ninth Circuit Court of Appeals.

In contrast, evidence of the role of Defense Department General Counsel William J. Haynes II emerged in time to raise concerns that led Republican and Democratic Senators to derail his Fourth Circuit nomination in Committee.

ACS, Public Justice, and Cardozo Law School are sponsoring a one-day conference entitled "Justice and the Role of Class Actions" on Friday, March 28, at Cardozo Law School. The conference features panel discussions on the historic value of class actions, their contemporary application, and some of the threats and opportunities facing the class action system today. Ken Feinberg, founder of The Feinberg Group LLP and the former Special Master of the September 11th Victim Compensation Fund, will provide the keynote address.

A limited number of student travel scholarships are available, with applications due by March 3, 2008. CLE credit is also available. More information here.

The Open Society Institute released a new report entitled "Moving Toward a More Integrative Approach to Justice Reform," which urges researchers, advocates, and policymakers to consciously connect the dots between unaddressed social conditions and entry into the criminal justice system.

Nkechi Taifa, A Senior Policy Analyst with OSI, writes "We must address the underlying social context if we are to break the cycle of incarceration before it begins. And this can only occur through a strategic multi-disciplinary collaboration that cuts across the disciplinary silos to which we have become accustomed."

The report:

• Advocates for increased interdisciplinary collaboration in research, advocacy, and policymaking to break the cycle of incarceration before it begins.
• Provides an in-depth analysis of the race and poverty dynamics of America's criminal justice system, and the various risk and protective factors for delinquent and criminal conduct.
• Describes conceptual approaches for understanding the cycle of incarceration and its impact on communities.
• Urges a shift in the policymaking paradigm from building more prisons and jails, to investing in "pre-entry" human service interventions to decrease the risk of crime.
• Presents eight recommendations for moving toward a more integrative approach to justice reform.

Linda Greenhouse, who has covered the U.S. Supreme Court for the New York Times for longer than any current Justice save John Paul Stevens has served on the Court, will retire at the end of the Term. Watch her discuss the 2006-2007 and 2005-2006 Terms.

Colonel Morris D. Davis, the former chief prosecutor at Guantanamo Bay, has agreed to testify on behalf of Salim Hamdan, a driver for Osama bin Laden, because Davis has "significant doubt about whether [the military commission system] will deliver full, fair and open hearings," the New York Times reported.

Mr. Hamdan’s chief military lawyer, Lt. Cmdr. Brian L. Mizer, said he would offer Colonel Davis to argue that charges against Mr. Hamdan should be dismissed because of improper influence by Pentagon officials over the commission process.

Additional materials are available here.

by Center for Progressive Reform scholars Alexandra Klass, University of Minnesota Law School, and Sandra Zellmer, University of Nebraska College of Law

This morning, the Supreme Court will hear oral argument in the case of Exxon Shipping Company v. Baker. The case, brought by commercial fisherman against Exxon Mobil, arises out of the grounding of the Exxon Valdez oil tanker in Prince William Sound, Alaska in 1989, causing the release of 11 million gallons of oil. More birds and marine mammals were killed than in any other U.S. oil spill to date.  The harm to affected species continues to this day, due to the loss of critical food sources, smothered spawning grounds, and decreased reproduction. In 2007, the U.S. Fish and Wildlife Service concluded that “history will judge the Exxon Valdez oil spill as the worst kind of spill in one of the worst places for a spill--an incredibly rich ecosystem.”

The latest issue of Gavel to Gavel, on judicial recusal, is available from the National Center for State Courts.

It may not be a chicken in every pot, but the National Labor Relations Board issued a regulation requiring the American flag be displayed at every union representation election. Why? "These voters, like all participants and observers, should be reminded that the Agency’s impartial election processes are guaranteed by the full force of the Federal Government."

The blog American Rights at Work compares NLRB elections to political elections in a nifty checklist, concluding that they aren't alike at all.

Here is a comprehensive list of the House and Senate schedule and hearings. The following links are to the daily calendars for the House and Senate. Here is the weekly House whip information (majority/minority) and the Senate floor schedule.

Of note: Hearings on "voter caging," nominees to the Department of Justice, and the examination of government-wide intelligence community reforms. ACS has resources available on voter identification laws, the role of the Justice Department, and oversight in the war on terror.