After the U.S. Supreme Court denied the petitions for certiorari in several leading same-sex marriage cases this week, media coverage exploded with headlines like “Legal Argument Over Gay Marriage Is All But Over.” Advocates of LGBT rights seemed to view all future court action as a mere victory lap. Sarah Warbelow, the legal director for the Human Rights Campaign, told the press, “It’s really hard to imagine the Supreme Court would have allowed thousands of same-sex couples to get married, including in some very conservative areas like Utah, and then turn around and say, ‘Just kidding, there’s nothing wrong with state bans.'”
Warbelow deserves some slack for her sanguine interpretation of this week’s news. After all, she has a cause to promote. And as a general rule, when SCOTUS declines to hear a case on a particular question, one might reasonably assume that they aren’t concerned with correcting the lower court’s treatment of the issue. But this is hardly a routine legal matter. Nothing emanating from First Street this week made the fate of same-sex marriage in America certain. So, why are so many other observers acting as though the Court just handed the LGBT community a gift box of equal rights, neatly wrapped in denied cert petitions? Why is there so much denial about what these cert denials mean?
It has been an intense week in the Lone Star State. A rough week to be Texas Department of Health Commissioner David Lakey, to be sure. When either of the words “abortion” or “Ebola” enter local headlines, it’s not a slow news week. Texas headlines have had both.
On Thursday, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit ruled that the State of Texas can begin implementing controversial parts of HB 2, the law placing new restrictions on the facilities authorized to perform abortions. Though a district court ruled earlier that HB 2 violated some Texas women’s rights by placing an undue burden on their access to abortion, the Fifth Circuit disagreed.
Meanwhile, Texas officials confirmed this week that a man in Dallas is infected with the Ebola virus. Thomas Eric Duncan contracted the deadly disease while in Liberia earlier this month, although his symptoms did not manifest until last week. In Liberia, Duncan reportedly helped care for a neighbor’s daughter who later died of Ebola. A few days later, Duncan boarded flights to Brussels, then Dulles, then Dallas. Nine days after his contact with the infected woman, while visiting Texas, Duncan became ill. And now every person in the Dallas-Fort Worth Metroplex who ate bad sushi this week, or caught a stomach bug, is looking at their symptoms with a whole lot more suspicion and dread than usual. Because this is pretty damned terrifying.
What do abortion and ebola have in common (aside from making David Lakey’s life miserable this week)?
President Obama formally announced the resignation of U.S. Attorney General Eric Holder this week. Filling the position ordinarily poses a political challenge, but installing Holder’s successor will be particularly rancorous. And we have Eric Holder himself to thank for that.
With Congressional midterm elections weeks away, confirmation hearings for a new AG any time soon seemed unlikely at first. However, Senator Patrick Leahy (D – VT), the chair of the Senate Judiciary Committee, announced that he intends to urge the confirmation process onward. “Definitely, we should have confirmation hearings as quickly as possible in the Senate,” Leahy told MSNBC’s Andrea Mitchell. Changes to Senate rules allow debate to end over executive and judicial branch nominees (except for nominees for Supreme Court vacancies) with a simple majority vote, rather than a supermajority of 60 votes. At least until the January 2015 session, when the Senate can revisit the rule change, Senators cannot filibuster the vote on Eric Holder’s potential successor. No matter what shifts occur after the upcoming elections, Republicans hold only 45 seats in the Senate until January 2015. So, Democrats acting quickly hold an advantage. However, Democratic senators facing dicey election contests may not be enthusiastic about their party’s push for hearings before the election.
The AG confirmation process opens a new battlefield in the war between supporters of President Obama and his critics. The battle to confirm Eric Holder’s successor promises to be messy. Senate Republicans will treat the process as a referendum on everything President Obama has done — possibly everything his critics suspect he might want to do. Washington politics makes this sort of fight possible. The timing of Holder’s resignation, a few weeks ahead of Congressional midterm elections, makes this plausible. But Eric Holder himself made this battle necessary.
Voters in Scotland decided yesterday that they will remain a part of the United Kingdom, instead of establishing a fully independent nation. Secession, even if narrowly avoided, is no mean matter. If the U.K. now makes good on its pre-plebiscite promises, constitutional change is on its way in the form of plans to devolve more power to Scotland in exchange for the “No” vote on total independence.
Before the referendum, advocates from both sides tried to convince the Scots. Celebrities chimed in. For example, Scottish actor Brian Cox, who now lives in the United States, rallied for Scottish Independence. Cox appeared in “Braveheart,” Mel Gibson’s film about the First War of Scottish Independence. (This fact may seem irrelevant to his authority on matters related to contemporary world politics, but it got mentioned in virtually every news bit about Cox’s current stance. No word yet on what Chris Cooper, actor from Gibson’s “The Patriot,” thinks about the current state of American independence.) President Obama tweeted in favor of U.K. unity, writing, “The U.K. is an extraordinary partner for America and a force for good in an unstable world. I hope it remains strong, robust and united. -bo” (Was the omission of an Oxford comma after “robust” a hidden message, though? A silent nod to the Scots?) Ordinary Scottish citizens tried to convince their peers, with many supporters of independence feeling confident before the votes were tallied. When asked by a reporter whether he thought that many of the apparent undecided voters simply did not want to admit that they intended to vote against independence, one man replied, “Ach no. You can tell No voters straight off. They’re the ones with faces like a bulldog that’s chewed a wasp.” (Feel free to imagine this response uttered in the voice of Groundskeeper Willy.)
Seen even a couple of months ago as improbable, Scottish independence gained momentum in the weeks before the vote. British officials grew nervous. David Cameron, desperate not to go down as the British prime minister who lost Scotland for the Kingdom, pledged more and more autonomy. Brits and Scots began referring to the most extreme devolution settlement proposal as “Devo Max.” The name Devo Max sounded like a Mark Mothersbaugh revival project. The tone of Devo Max sounded like a spurned spouse offering an open relationship to straying partner. The terms of Devo Max sounded unclear. And like so many compromises over constitutional authority and political independence, Devo Max focused heavily on who gets control of the purse strings….
David Foster Wallace died six years ago today, on September 12, 2008. The author of novels such as Infinite Jest, The Pale King, and essay collections such as A Supposedly Fun Thing I’ll Never Do Again hanged himself in the garage of his California home. DFW was 46.
David Foster Wallace was a lawyer’s writer, if ever one could use that label without intending insult. DFW was not a lawyer, though he famously became friends and collaborators with legal writing expert Bryan Garner. Garner’s co-author Justice Antonin Scalia is also said to be a fan. Countless attorneys who haven’t cracked a novel in years will brighten at the mention of DFW. Analytical, language-obsessed, and neurotic, he may have captured the modus operandi of many lawyers as well as any novelist or essayist could.
David Foster Wallace, especially for a fiction writer, was logical, analytical. He never quite left behind the mindset of the analytic philosophy student he once was. Wallace’s senior thesis in modal logic was published posthumously. His senior thesis in English became his first published novel, The Broom of the System. He wrote lit for STEM geeks and logic nerds . . . including the many STEM geeks and logic nerds who later ended up in law. (Myself included.)
This week, a Louisiana court became the first federal district court to uphold a state ban on same-sex marriage since the U.S. Supreme Court’s decision in U.S. v. Windsor. Judge Martin Feldman of the Eastern District of Louisiana granted the state’s motion for summary judgment in Robicheaux v. Caldwell. Finding that the claims of same-sex couples did not implicate a fundamental right triggering heightened scrutiny of the state law, he applied rational basis review to the challenge. Judge Feldman rejected arguments that sexual orientation warrants intermediate or heightened scrutiny based on the Supreme Court’s ruling in Windsor, as well as Equal Protection arguments against the Louisiana ban based on sex discrimination.
“Many states have democratically chosen to recognize same-sex marriage,” he writes. “But until recent years, it had no place at all in this nation’s history and tradition. Public attitude might be becoming more diverse, but any right to same-sex marriage is not yet so entrenched as to be fundamental. There is simply no fundamental right, historically or traditionally, to same-sex marriage.”
American attitudes about LGBT people have changed. The fight for same-sex marriage has come far, fast. African Americans, women, disabled people, and members of other disenfranchised groups should envy the speed with which the LGBT community has achieved so much success. Not only have laws changed, but popular moral sensibilities have changed as well. In 2008, opposing marriage equality would put you in the company of most California voters. In 2014, expressing moral opposition to homosexuality can get you in big trouble. You can even face retroactive stigma — Brendan Eich, the former CEO of Mozilla who was ousted in 2014 because of his support of California’s Prop 8 in 2008, can attest to that.
A Sixth Circuit ruling earlier this week is a victory for critics of federal hate crime legislation, as well as the defendants in the case, a group of Amish men and women who forcibly cut the hair and sheared the beards of their Amish victims. The defendants, members of the Bergholz Amish community, admitted to a series of attacks against other Amish with whom the defendants had longstanding feuds. In the Amish community, men wear long beards and women grow long hair as signs of piety and view voluntarily cutting one’s own hair as a sign of contrition. Cutting another person’s hair is a forceful condemnation of the victim. Prosecutors had argued that the defendants assaulted their victims because of their religious identity. The case is the first appellate case involving a religious hate crime brought under The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009. The statute prohibits “willfully caus[ing] bodily injury to any person . . . because of the actual or perceived . . . religion . . . of [that] person.”
In one of the instances at issue, Martin and Barbara Miller’s children and their children’s spouses cut Barbara’s hair and sheared Martin’s beard. The children insisted at trial that they attacked their parents to punish them for “bad parenting.” The kids thought Martin and Barbara were cruel, punitive, and spiteful as a father and mother. The kids did not argue that Martin and Barbara’s “bad parenting” justified assaulting them. The kids only argued that they didn’t attack their parents because their parents were Amish, or even because they believed that their parents’ bad parenting was a sign of them being lousy at being Amish. Rather, they attacked their parents because they believed that their parents were lousy at being parents.
Assaulting your parents in a way that is particularly hurtful to their religious values is a good way to make clear that you won’t be attending the next family picnic, but is it a good way to commit a federal hate crime?
In Ferguson, Missouri, outrage over the shooting death of teenager Michael Brown roils on. Attorney General Eric Holder visited Ferguson yesterday, promising Brown’s family and the concerned public that a federal investigation would ensure justice. If Darren Wilson, the white police officer who shot and killed Brown, willfully deprived the young black man of his constitutional rights to be free from unlawful deadly force, Wilson could be convicted under federal civil rights law, in addition to any possible state charges.
Much of the outrage over Brown’s death is rooted in the belief that Wilson responded to Michael Brown as he did because of Brown’s race. The case calls up a painful history of racist white men murdering black men under color of law. I don’t dispute the existence of that history, and I humbly acknowledge that, as a white woman, I will never feel the same pain associated with that history that black men and women will. Even so, I wonder about what in this particular case leads so many observers to conclude that racism obviously caused Wilson to shoot and kill Brown — not simply to conclude that Wilson was unjustified in his use of force for non-race-based reasons, or to be suspicious of the circumstances surrounding the use of force.
How could we distinguish a set of facts where a white police officer improperly kills a black teenager without racial bias from one where a white officer improperly kills a black teenager because of racial bias? Do we have a picture of criminal violence by a white officer against a black teenager that is wrong, but not wrong for any reasons that involve race?
This week, a Texas campaign ad and a Pennsylvania death penalty appeal each illustrate what happens when lawyers lose sight of for what — and whom — they claim to be working.
Wendy Davis, in the final throes of her Texas gubernatorial race against Attorney General Greg Abbott, launched a controversial campaign ad a few days ago. The ad accuses Abbott of “siding with a corporation over a rape victim,” spotlighting a 1998 Supreme Court of Texas case brought by a woman seeking damages from a vacuum manufacturer after a door-to-door salesman of the vacuums allegedly raped her in her home. A background check should have revealed that the man had a criminal history. Abbott was then a justice on the Texas court. He dissented from the majority’s decision in favor of the woman. Davis’s ad ignited heated debate, with even her supporters questioning the propriety of the ad. Abbott’s campaign called the ad “despicable.”
Meanwhile, on the other side of the country, the United States Supreme Court on Monday issued a highly unusual order in a Pennsylvania death penalty case. The Court asked the Pennsylvania Supreme Court Disciplinary Board to investigate and take appropriate actions against Marc Bookman, an attorney who filed a petition for review of Michael Eric Ballard’s death sentence. Ballard slaughtered four people in 2010: his former girlfriend, her father, her grandfather, and a neighbor who tried to help the family when he heard screams coming from the home. Ballard was sentenced to death in 2011. In November 2013, the Pennsylvania Supreme Court upheld the sentence. On June 23 of this year, SCOTUS denied Bookman’s petition to review Ballard’s case, but the Court then ordered Bookman to file additional responses about his relationship to Ballard. Apparently not satisfied by Bookman’s replies, the Court referred the case to the state disciplinary authority.
So, what’s the problem in either of these situations? Why the controversy? And what do they have in common?
The Wisconsin Supreme Court recently issued two rulings upholding 2011 Wisconsin Act 23, a state law requiring voters to present photo identification at polling places. The court ruled that mandating ID does not place a substantial burden on voters, nor does it create an unreasonable regulation on elections. The Seventh Circuit is still considering a challenge to the same law, however. In April, Judge Lynn Adelman of the U.S. District Court for the Eastern District of Wisconsin ruled that the law unduly burdens some voters, particularly low-income ones, and violates the Voting Rights Act. This week, Wisconsin Attorney General J.B. Van Hollen filed motion to lift the injunction created by Judge Adelman’s earlier ruling.
Wisconsin’s court battles reflect the nationwide debate about voter ID laws. Proponents of the laws argue that abuse is rampant, ID laws make a clear statement that corruption is intolerable, and requiring photo identification is a minimal burden.
Opponents of voter ID laws contend that voter fraud is rare, but voter suppression is likely. At the Washington Post, Justin Levitt argues that his extensive, nationwide research of election fraud reveals only 31 incidents since 2000. Levitt points out that more than 1 billion ballots have been cast in that time. Allegations of voter intimidation or suppression are common, though what counts as a criminal offense or civil rights violation may be hard to define. Physical threats obviously count. Jim Crow’s shameful legacy of literacy tests and poll taxes obviously do. Willful disinformation campaigns do. Whether insisting on photo identification, which may be more difficult for people in some communities to provide, counts as voter suppression is a much closer call.
Both sides offer up horror stories. True the Vote trumpets allegations of misconduct on one side, while the NAACP insists that election officials continue to suppress minority votes on the other. Mostly the discourse drops to the level of anecdote. Too often, the deciding factor reduces to which seems more plausible to you personally — that people who shouldn’t vote do, or that people who should don’t?
Jiminy jillickers! ATL editors are going all over the place over the next month or so. Or at least all over the Eastern Seaboard. If we aren’t heading to your neck of the woods on these trips, never fear, we may hit you up on the next time around. We’ve already hit up Houston, Chicago, Seattle, San Francisco, and Los Angeles in the past year.
Kinney Recruiting’sEvan Jowers is currently in Hong Kong for client meetings and still has a few slots available through October 22. Evan will also be in Hong Kong November 14 to December 15. Further, Robert Kinney has been in Frankfurt and Munich this week and is available for meetings with our Germany based readers.
One of our key law firm clients has referred us to one of their important clients in the US, Europe and China – a leading global technology supplier for the auto industry – in order to handle their search for a new Asia General Counsel and Asia Chief Compliance Officer.
Kinney is exclusively handling this in-house search.
This position will have a lot of responsibility and include supervision of eight attorneys underneath them in the Asia in-house team. The new hire will report directly to the global general counsel and global chief compliance officer, who is based in the US. The new hire’s ability to make judgement calls is going to be as important as their technical skill set background.
The position is based in Shanghai and will deal with the company’s operations all over Asia and also in India, including frequent acquisitions in the region.
It is expected that the new hire will come from a top US firm’s Shanghai, Beijing or Hong Kong offices, currently in a top flight corporate practice at the senior associate, counsel or partner level. Of course, the candidate can be currently in a relevant in-house role.
The JOBS Act created new tools for companies to publicly advertise securities deals online. As a result, thousands of new deals have hit the market and hundreds of millions in capital has been raised, spurring a wealth of new business development opportunities for attorneys.
Fund deals, startup capital raises, PIPE deals and loan syndicates are just a handful of the transactions benefiting from the JOBS Act. InvestorID FirmTM is a platform designed to help attorneys equip their clients with the workflow, marketing and compliance tools to publicly solicit a securities offering online. By providing clients with the tools to painlessly navigate the regulatory landscape of general solicitation, InvestorID FirmTM helps attorneys add value above just legal services.
The Jumpstart Our Business Startups Act (JOBS Act) went into effect in 2013 and permits Regulation D offerings of securities to be advertised publicly. This means that funds and companies can now use social media, emails and web sites to market transactions to new “accredited” investors.
However, with these new powers come new pain points. InvestorID FirmTM provides a secure, fully hosted, cloud-based platform with a breadth of tools for your clients, including: