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September 2009

September 22, 2009
Civil Rights Groups Respond to High Court Decisions on Pleading Standards
Civil liberties and other public interest groups, including consumer protection ones, are organizing over recent Supreme Court decisions that they say put serious limits on lawsuits. In an article for The National Law Journal, Tony Mauro reports on the organizing around the most recent Supreme Court decision, writing that the high court "gave corporate defendants a gift that keeps on giving: the Iqbal decision, which has made it easier than ever for defendants to shut down lawsuits before they get to the costly discovery stage."
Mauro's article notes that Iqbal has been used repeatedly since it was issued by the high court in May. Motions to dismiss, based on the Iqbal decision, Mauro writes "have become commonplace in federal courts, already producing more than 1,500 district court and 100 appellate court decisions according to a Westlaw search."

In Ashcroft v. Iqbal (pdf), the Supreme Court ruled that federal judges have a greater discretion to dismiss complaints, which according to some Supreme Court practitioners will make it much easier for judges to quickly dismiss civil lawsuits. The Iqbal decision was preceded by the high court's decision in Bell Atlantic Corp. v. Twombly (pdf) that also stiffened the pleading standards.

The public interest groups meeting last week in Washington, D.C., Mauro reports, are planning to urge Congress to restore pleading standards. Mauro notes that congressional hearings are being planned on the pleading standards.

John Payton, president and director-counsel, of the NAACP Legal Defense and Educational Fund, which took part in the meeting, told The National Journal that Iqbal "has threatened to upend the way we have been doing things for a very long time. The alarm is real."

In July, Sen. Arlen Specter introduced the Notice Pleading Restoration Act of 2009 intended to counter the Iqbal and Twombly rulings by requiring federal courts to follow traditional civil procedure rules for filing lawsuits. Rule 8 of the Federal Rules of Civil Procedure simply requires that complaints include "a short and plain statement of the claim showing that the pleader is entitled to relief."

In a guest post for ACSblog, Vermont Law Professor Anthony F. Renzo wrote that, "The most ominous import of the Iqbal decision, however, is that it provides a blueprint for like-minded lower federal court judges to justify denying access to the courts to future victims of constitutional torts seeking redress for injuries caused by high-ranking federal officials."

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Tags:
Access to Justice, Procedural barriers to court, Ashcroft v. Iqbal, pleading standards, Rule 8
September 21, 2009
FCC Chief Advances Net Neutrality
Guest Post
By Matt Wood, Associate Director, Media Access Project

Federal Communications Commission Chairman Julius Genachowski delivered in a big way this morning on one of the key technology and telecommunications policy promises from the Obama campaign. Genachowski announced, in a speech at the Brookings Institution in Washington, D.C., that his agency would "take steps to preserve Internet openness, helping ensure a future of opportunity, innovation, and a vibrant marketplace of ideas." (President Obama publicized today's move too, taking time during his speech in Troy, NY, on innovation and sustainable growth to promote the FCC announcement.)

Studiously avoiding use of the hot-button term "net neutrality," Genachowski proposed formalizing the FCC's role as "a smart cop on the beat preserving a free and open Internet." He announced that the agency would open a rulemaking process to consider formal adoption of the Commission's existing four Internet principles - guidelines adopted in 2005 on the watch of Republican FCC Chairman Michael Powell - as well as new principles requiring non-discrimination and transparency by wireline and wireless broadband providers.

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Corporate governance, Executive power, Technology and I.P., Economic, Workplace and Environment Regulation, Separation of Powers and Federalism, FCC, Guest Post, Julius Genachowski, Matt Wood, Media Access Project, Net Neutrality
September 21, 2009
Potential Delays in Google Books Settlement
Delays in finalizing the proposed Google Books settlement look highly probable according to experts following the class action lawsuit. The parties involved in the proposed settlement, which if approved could give Google expansive digital publishing rights, are now negotiating aspects of the settlement, according to The New York Times.
In a recent press statement, the Department of Justice urged Judge Denny Chin of the United States District Court for the Southern District of New York to decline the settlement, and said that the "parties should be encouraged to continue their productive discussions to address those concerns."

James Grimmelmann, an associate professor of the Institute for Information and Law at New York Law School and author of an ACS Issue Brief on the settlement, told The Times:

The news out of this is that there are frantic negotiations going on in back rooms right now. The parties are scared enough to be talking seriously about changes, with each other and the government. The government is being the stern parent making them do it.

Grimmelmann's Issue Brief explored some of the public interest concerns that have arisen from the settlement, such as who will control copyright ownership of "orphan works," which are books whose authors or rights holders cannot be found.

In its statement on the proposed settlement, the DOJ also expressed concern about several aspects of it and urged the parties to "consider a number of changes to the agreement that may help address the United States' concerns, including imposing limitations on the most open-ended provisions for future licensing, eliminating potential conflicts among class members, providing additional protections for unknown rights holders, addressing the concerns of foreign authors and publishers, eliminating the joint-pricing mechanisms among publishers and authors, and, whatever the settlement's ultimate scope, providing some mechanism by which Google's competitors can gain comparable access."

In a guest ACSblog post, Center for American Progress Senior Fellow David Balto responded to critics of the settlement, calling it "good for consumers" and urging the federal court to accept it.

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Technology and I.P., Copyright, Google Books, James Grimmelmann
September 21, 2009
Advance Author Researches Racial Disparities in Capital Punishment
In Harris County, Texas, the death penalty is more likely to be imposed against black defendants than white defendants, and death is more likely to be imposed on behalf of white victims than black victims. These are the findings of Professor Scott Phillips, University of Denver. Phillips's examination of these findings was distributed in his ACS Issue Brief "Racial Disparities in Capital Punishment: Blind Justice Requires a Blindfold," just re-released in the latest edition of Advance: The Journal of the ACS Issue Groups.

Professor Phillips explains that his research indicates that the racial disparities arise in the District Attorney's decision to seek the death penalty, rather than with the jury. He suggests that because the Supreme Court is unlikely to overrule McCleskey v. Kemp in the near future and find that capital punishment is unconstitutional based on statistical evidence of racial disparities, other means for reducing racial disparities in the death penalty should be implemented.

Phillips proposes that prosecutors' offices that want to institute genuine race-blind processes for deciding whether to seek the death penalty should consider "desocializing" the decision to seek the death penalty. Concrete steps that District Attorney's offices can take to reduce the social information available to judicial actors in the capital litigation process, he suggests, include eliminating information that might insinuate the race of the victim or defendant - "racial markers" - from all documents considered in the District Attorney's decision whether to seek the death penalty.
Tags:
Death penalty, Criminal Justice, Equality and Liberty, Advance Journal, Scott Phillips
September 18, 2009
Obama’s Civil Rights Nominee Still Waiting
In an article for The American Prospect, Adam Serwer examines the Obama administration's effort to revive the Justice Department's Civil Rights Division, by restoring its historical mission - that of protecting and advancing civil rights of minorities and as The New York Times recently reported to "bolster a unit that has been battered by heavy turnover and a scandal over politically tinged hiring under the Bush administration ...." (The late-Sen. Edward Kennedy, in an article for the summer 2008 volume of the Harvard Law & Policy Review (HLPR), the official journal of ACS, wrote about the politicization of the Civil Rights Division during the Bush administration and the need for its integrity to be restored.)
A major part of the administration's effort, Serwer reports, is the nomination of Thomas Perez, a former prosecutor in the DOJ's Civil Rights Division during the Clinton administration and "arguably the most qualified candidate ever nominated," according to Wade Henderson, head of the Leadership Conference on Civil Rights (LCCR).

But Perez's nomination has languished for six months in the Senate. Serwer reports on several issues causing the delay, including "Perez's stellar civil-rights bona fides...." He maintains that "Republicans have long considered the very existence of a Civil Rights Division an affront."

Additionally, writes Serwer, "Oddly, part of what seems to be holding up Perez's nomination is a case Perez had nothing to do with: the Justice Department's recent decision to dismiss a 2008 voter-intimidation case involving the New Black Panther Party - a decision now under internal investigation. Some attorneys in the Voting Rights Section see the case as part of the leftover politicization from the Bush years, while Republicans have used the case to argue that the department is now being politicized by Democrats."

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Civil rights, Civil Rights Division, DOJ, Thomas Perez