Within the Scope

Blogging on Administrative Law and the Public Sector

Tuesday, October 30, 2007

Judge Wilson Cowen: R.I.P. A Very Decent Man, Singularly Dedicated to the National Courts, Dies at 101

It was announced with sadness today that Retired Circuit Judge of the U.S. Court of Appeals for the Federal Circuit, Wilson Cowen, passed away on Sunday, at the age of 101.

I recall vividly being a young lawyer in practice in Washington and the commemorative celebrations for what was then his 50 years of dedicated service to the national courts – and he was still going strong. Judge Cowen was appointed a commissioner of the United States Court of Claims in 1942 and promoted to Chief Commissioner in 1959. In 1964, fellow Texan, President Lyndon Baines Johnson elevated him to Chief Judge of the United States Court of Claims – a position in which Cowen served until he assumed the status of senior judge some 13 years later. When the Court of Claims was folded into the newly minted U.S. Court of Appeals for the Federal Circuit in 1982, Judge Cowen continued to serve as a Senior Circuit Judge through August 1, 1997.

For the young law clerks in the National Courts Building, Judge Cowen’s five-decade commute to the same office stood for two remarkable propositions: The first, is that even in an age where dramatic career changes were commonplace, it was still possible to have a path in the law that was both briefly summarized and very far-ranging in its impact. (We often giggled that his resume could fit squarely and comfortably on a single index card – whereas his contributions to our law could not be justly summed in the space of many card file drawers.) Likewise bewildering and important to the young, is that it was possible for a lawyer to work for a half a century with the same set of workmates and never (as far as I know) prompt an angry or bitter word. I daresay, without fear of contradiction, that Judge Cowen was the dearest and gentlest man any of us clerks had ever known in Washington.

A singular man and role model is gone. May God grant peace to all who mourn.

Update to the Federal Special Education Regulations

Published today in the Federal Register are changes meant to address “minor technical errors” in the final regulations issued last August under the Individuals with Disabilities Education Improvement Act of 2004

Because the qualifier “academic” before the term “achievement” might arguably be more than the correction of a typographical error – to cite but one example from the revisions announced today – those using 34 C.F.R. Part 300 in their work may wish to take a closer look.

I step. You step. We’re all in step with OSEP.

The complete set of correcting amendments is accessible here.

Monday, October 29, 2007

Reclaim the Memories (and Share the Love)

Posted to the Office of Administrative Hearings website today are audio podcasts for 5 out of the 6 presentations from last month’s 12th Annual Rulemaking Seminar (with apologies to Dave Orren and Maryann Corbett, as the first segment of the Seminar did not make the transition to a digital file).

The audio segments include really useful presentations from:

  • Maryann Corbett, Office of the Revisor of Statutes

  • Julian Plamann, Office of Governor Tim Pawlenty

  • Chief Administrative Law Judge Raymond Krause

  • Catherine Hennessy, Minnesota Dep't of Commerce

  • Maria Lindstrom, Office of Administrative Hearings

  • Carol Nankivel, Minnesota Pollution Control Agency

  • Patricia Winget, Minnesota Department of Health
Thanks to web work of Michael Lewis of the OAH, you can tune into the presentations for the first time, review them again, and ship these links to those who did not have the chance to attend the event last month.

The audio files are accessible here.

Sunday, October 28, 2007

Three Longer Articles that Will Have You Thinking

Posted to the Social Science Research Network this week are three items that had me thinking and might be worth your time as well. They are:

n Professor Lili Levi’s First Report - The FCC's Regulation of Indecency: The Report maps the changes in the Federal Communication Commission’s approach to the regulation of indecency in broadcast media. Among the matters explored in the Report are Levi’s claims that “indecency has become a powerful rhetorical tool for those who argue for reduced media consolidation” and that “the FCC‘s actions in stepping up indecency enforcement [enhances] its own power in an atmosphere that has been otherwise largely deregulatory since the Reagan era.”

The complete report is accessible here.

n Professor David R. Cleveland’s Overturning the Last Stone - The Final Step in Returning Precedential Status to All Opinions: Advocating “a return to full precedential status for all federal court decisions,” Professor Cleveland argues that the practice of issuing non-precedential opinions “is outdated … constitutionally infirm [and] flies in the face of American legal and lay concepts of how our justice system works.” Forcefully, Cleveland concludes that “the federal courts ought to recognize that they are bound by what they have done in the past and that they must apply, distinguish, or overrule those precedents rather than simply ignoring them.”

The complete article is accessible here.

n Professor Harold P. Southerland’s English as a Second Language - Or Why Lawyers Can't Write: Drawing upon thirty-five years of experience in the classroom, Professor Southerland explores the “severe linguistic handicaps” among lawyers and posits some historical and pedagogical reasons why impenetrable legalese is so resistant to change.

The complete article is accessible here.

Saturday, October 27, 2007

Weekend Audio - Three Podcasts with Lots of Big Ideas

Podcast 1: On November 5, the U.S. Supreme Court is scheduled to hear oral arguments in the case of Kentucky Department of Revenue v. Davis. The question presented in that case is whether a state violates the dormant Commerce Clause by providing an exemption from its income tax for interest income derived from bonds issued by the state or its political subdivisions, while treating the interest income realized from bonds issued by other states and their political subdivisions as taxable like commercial instruments? The American Enterprise Institute assembled a panel to assess the issues and potential of this landmark case. The audio from that event is accessible here and the merits briefs underlying the U.S Supreme Court argument are accessible here.

Podcast 2: The Stanford Law School Chapter of the American Constitution Society interviewed Circuit Judge Raymond Fisher of the U.S. Court of Appeals for the Ninth Circuit. The interview, for the Chapter’s "Summary Judgments" podcast series, touches upon Judge Fisher's career, the direction of the Department of Justice and the case of Parents Involved in Community Schools v. Seattle School District No. 1. The audio is accessible here.

Podcast 3: Timed to coincide with the release of his new book, The Best-Laid Plans: How Government Planning Harms Your Quality of Life, Your Pocketbook, and Your Future, Cato Institute Senior Fellow (and blogger), Randal O'Toole argued at a luncheon forum that most government land planning efforts do more harm than good. The audio of his case against land use regulation and planning is accessible here.

Friday, October 26, 2007

A Word to the Very Wise

I have a “must read” for every lawyer who tries cases in the United States.

While the underlying decision relates to the question of whether the U.S. Court of Appeals for the Seventh Circuit should undertake en banc review of a federal criminal matter – not the kind of opinion that is ordinarily referenced here, on the pages of Within the Scope – the dissenting opinion, objecting to the full panel’s refusal to review the case, is worth the time of every litigator, in every circuit. The dissent raises truly profound questions about the nature of American trial practice, and in particular, the collateral effects of a lengthy trials.

Among the very interesting questions the dissent poses to assembled readers is whether a case is more thoroughly presented when the record contains every conceivable fact (and “no stone is left unturned”) or when it includes a compact and crystalline distillation of surrounding events? Similarly, in the main, is a complex case more thoroughly presented when it includes a comprehensive presentation of 100 witnesses, or a selection of just the right 10 from that larger list?

For me, the dissenting opinion recalled a lecture on complex litigation delivered by the well-known trial lawyer (and now candidate for the U.S. Senate) Michael Ciresi. Mr. Ciresi remarked in 1993, to a stunned and bemused audience of fellow lawyers, that even the most complicated case turns upon the contents of no more than 40 documents. Every complex case involves more documents, to be sure, Ciresi conceded, but as to the key elements of the dispute, the number of documents never went above 40; and quite often were far fewer than that.

If the “unexamined life is not worth living,” then surely a corollary to that great principle is that the unexamined trail strategy is not worth doing. In my view, yesterday’s opinion in United States v. Warner is the right place to start such examinations (and is accessible here).

Tuesday, October 23, 2007

Practice Pointer: 60-Day Clock for Zoning Applications Can Begin Upon Agent Receipt

In an unpublished opinion issued today, a panel of the Minnesota Court of Appeals held that the 60-day time period for approval or denial of “a written request relating to zoning,” began upon the receipt of the completed request by the decision-maker's agent.

In the case at bar, the 60-day time clock ran from the date of the receipt of the preliminary plat application, and the required filing fee, by the county environmental services director. As the panel reasoned, where the County's zoning forms and ordinance both directed filings to be made with the county environmental services director, “the district court erred as a matter of law in ruling that the application was not submitted to an ‘agency’ under the statute because it was submitted to the agency through its delegated agent.”

The panel's complete analysis is accessible here.

Monday, October 22, 2007

Administrative Law: "The Practice Area You Want"

On the endless beachfront that is the law, administrative lawyers know that, all too often, we’re the 97-pound weaklings who shrink in the face of those sand-kicking bullies in other practice areas – such as personal injury or securities law.

Not anymore. Just like the Charles Atlas’ body-building methods featured in the comic books of old, comes a decision of the U.S. Court of Appeals for the District of Columbia Circuit. Issued today, the opinion makes clear just how wide-ranging – and yes, robust – Administrative Law can be.

At issue in the case was a settlement agreement between the D.C. Public Schools and a local teenager, who, weeks earlier, had been sentenced to prison in Maryland. The D.C. Public Schools agreed, in return for the withdrawal of the student’s earlier-filed special education dispute, to provide education services to the student during his incarceration in Maryland. For security reasons, however, Maryland prison officials refused to admit the District’s special education contractor to the prison facility.

The U.S. District Court held that the D.C. Public School system was still obligated to provide special education services to the student after his release from prison. Reversing, the appellate panel held that the school district’s obligations under the settlement agreement were relieved due to the “doctrine of impossibility.”

Criminal sentencing; compensatory education under the Individuals with Disabilities Education Act; and the Doctrine of Impossibility, all rolled into one case. As Charles Atlas might say: This is the practice area that you want!

The appellate panel’s complete analysis, with all of its intellectual muscle, is accessible here.

Friday, October 19, 2007

Sick Day

Bleh.

I have that thing that is going around....

Accordingly, packed with large bowl of Matzoh Ball Soup (recipe accessible here), and some audio from two events that occurred earlier this month, my iPod and I are going back to bed.

The two bits of legal audio I am taking, are: A lecture on the Roberts Court from University of Chicago Law Professor, Geoffrey Stone (accessible here); and a set of remarks from Justice Clarence Thomas, during a stop on his autumn book tour (accessible here).

{ Cough. }

I will have better posts when I am feeling a bit better. The soup really works.

Thursday, October 18, 2007

The Narrow Band

Because the Minnesota Supreme Court handed down one opinion today – and that was in an attorney discipline matter – I thought it would be a good time to spend the evening with another set of Justices.

Timothy P. O'Neill, Professor at the John Marshall Law School, posted to the Social Science Research Network yesterday an article that is slated for the Oklahoma Law Review later this year: "'The Stepford Justices': The Need for Experiential Diversity on the Roberts Court."

In the article, Professor O'Neill observes that for the first time in history, all nine of the U.S. Supreme Court Justices were promoted from the Circuit Courts of Appeal, and that none of the current complement has ever run for any elective office.

In the article, Professor O'Neill argues that this is too narrow a band from which to draw judges who will decide cases that "exist in the lacunae between varying interpretations of law;" the cases as to which the "traditional tools of legal analysis have already failed." O'Neill urges a return to the practice of nominating not just individuals with prior judicial experience, but also lawyers who had been legislators, Governors, heads of regulatory agencies, professors or private practitioners.

The abstract and article is accessible here.

Wednesday, October 17, 2007

Agencies, You Can Pick Your Champions: Either Lawyers or Rule Writers at Dawn

While the general principal from SEC v. Chenery has been restated many times before, I thought that an opinion handed down yesterday from the U.S. Court of Appeals for the District of Columbia was an interesting twist on a familiar theme: Namely, that federal agencies are permitted to establish policy, that is within delegated authority, either (deductively) by promulgating a rule or (inductively) by successfully defending the same policy stance through a series of contested cases.

What made the “Chenery choice” – whether to proceed “by general rule or by individual, ad hoc litigation” – in yesterday’s case interesting, is that the agency, at different times, had tried both approaches: First undertaking rulemaking, and then later switching to defending its substantive stance in the context of challenges to particular tariff orders.

At issue in this particular case, was the legality of tariff provisions which restricted the amount of financial collateral that pipeline operators could demand from their customers – shipping companies that trade gas through the operator’s pipeline network. The operators sought the right to demand much larger amounts of security from those shippers that proved to be poor credit risks; a practice that the Federal Energy Regulatory Commission forbade (so as to spur greater competition among shippers) through a series of pipeline tariff orders.

While the pipeline operator argued that the agency’s switch in regulatory approaches revealed that the restrictions were, in fact, illegal rules, the panel replied sharply that “there is nothing to their argument….” Turning away the operator’s challenge to the tariff, the appellate panel held that “an agency’s policy can just as well be articulated in adjudications as in rulemaking.”

The panel’s complete analysis, and its coup de grâce, is accessible here.

Tuesday, October 16, 2007

House Hosts Field Hearing on Gigabyte Broadband Bill

Tomorrow, the House Telecommunications Regulation and Infrastructure Division will host an afternoon field hearing on the role that state government should take in spurring deployment of a billion bits per second “ultra high-speed” data transmission network.

The launching point for the hearing is a bill that was introduced in March of this year by State Representative Sandy Masin (DFL-Eagan). Representative Masin is Vice-Chair of the House Telecommunications Regulation and Infrastructure Finance Division and last week outlined her objectives for the hearing: "We'd like to hear directly from businesses and individuals about some of their specific technology needs and if they have effective access to technology – particularly broadband. We'd also like their insight into what the state's role might be to assist them in this area, and what that assistance might look like."

The committee notice for the field hearing is accessible here and the text of Representative Masin’s House File 2107 is accessible here.

All of those in favor of accessing Within the Scope at 1,000 megabits per second, signify by “aye....” Those opposed, say “nay...”

Monday, October 15, 2007

MDE Announces Major Rulemaking Effort to Revise the Special Education Rules

Earlier today, the Minnesota Department of Education circulated its proposed revisions of state rules relating to special education. MDE notes that it is proposing a set of new rules “in order to reflect recent changes to federal regulations as well as other necessary changes to Minnesota's special education rules.”

The proposed changes relate to a wide variety of special education topics, “including behavioral interventions; specific learning disability evaluation and identification; care and treatment; evaluation, re-evaluation, and development of IEP; and criteria upon re-evaluation.”

Materials related to this rulemaking – including the Notice of Hearing and the agency's Statement of Need and Reasonableness – are accessible here.

Sunday, October 14, 2007

Free Election Law Primer for State Court Judges (and Everyone Else)

Publicly accessible this week is a series of videos from a web-based course, originally offered last spring, from the National Center for State Courts and the William and Mary Law School. The course, “Election Law Issues for State Court Judges,” includes segments from the nation’s leading election law thinker (and blogger) Professor Richard Hasen of the Loyola Law School Los Angeles.

Among the interesting points that Professor Hasen makes by way of introduction to the more substantive features of his lecture, underscores why the public release of these recordings could be so helpful: The number of election law cases filed after the year 2000 has more than doubled and a majority of the cases that are filed are initiated in the state courts. Hasen credits the increase in filings, in part, to the fact that candidates are more willing than ever before to undertake election-related litigation. Summarizes Hasen, increasingly there is an “election law strategy that is a part of the political strategy to win the campaign.”

The links to a (very slick) set of blended videos and PowerPoint slides are accessible here.

There is Still Time ...

... to send in your own comments on the proposed reforms to the Minnesota Code of Judicial Conduct.

The close of the comment period is Monday, October 15, 2007 – and Judy Rehak, Committee staff would be delighted to hear from you.

While I am still not sure whether my remarks were too intemperately phrased, what I wrote to the Advisory Committee is accessible here.

And, as always, I would be glad to hear from readers of Within the Scope on their views of this analysis or the proposed rules.

Friday, October 12, 2007

Senatorial Courtesies

Posted to the Internet this week were remarks made by Minnesota’s U.S. Senators on current issues in the law.

U.S. Senator Amy Klobuchar (DFL-Minnesota) was recently a guest on C-SPAN's telecast “The Communicators.” During the broadcast – accessible here – Senator Klobuchar describes her bill, the “Cell Phone Consumer Empowerment Act of 2007,’’ and how she proposes to limit the charging of “regulatory fees” by cellular telephone companies.

U.S. Senator Norm Coleman (R-Minnesota) recently delivered a major policy speech to the Heritage Foundation. During the speech, he criticized efforts to re-establish regulations that would oblige licensed broadcasters to “provide a reasonable opportunity for the presentation of contrasting viewpoints.’’ During his address – accessible here – Senator Coleman declared: “I would suggest, constitutionally, there would be no basis for the 'Fairness Doctrine;' because there is no question that one could clearly show that the so-called Fairness Doctrine serves to chill freedom of speech.’’

Both items are worth downloading.

Thursday, October 11, 2007

Phase Next for Justice Sam Hanson

In an electronic message to friends and colleagues this morning, Minnesota Supreme Court Justice Sam Hanson sent word that he was retiring from the Court at the close of this year.

Returning to the firm where he worked for 34 years, and led as President for five, Briggs & Morgan, the Justice noted: “I have been privileged to participate in the resolution of important cases with six marvelous colleagues ….”

Collecting myself after the surprise of this announcement, my thoughts were drawn immediately to two things: One, the Governor should move with dispatch to name a successor; and two, the planning committee of the Minnesota Supreme Court Historical Society should move as swiftly to draft Justice Hanson as its first President.

As to the first item, Justice Hanson’s “six marvelous colleagues,” while they are marvelous, are six without his vote. The prospect that the Court might split 3 to 3, if a successor had not joined the Court by the arguments in January, is chilling.

As to the second item, one can only hope that Justice Hanson will help to lead the nascent and developing Supreme Court Historical Society. He has the skills, gravitas and devotion to the Court to provide the needed help.

Best wishes to Justice Hanson, and clearly, more wishes still.

(Note: As shown in the photo above, from the Spring of 2004, Justice Hanson was always generous with his time – here, stopping off for a quick lunch and a photo with a junior legislator from the Eastern Suburbs.)

Wednesday, October 10, 2007

Deadlock in Long-Awaited Special Education Reimbursement Case

Tom F. placed his son, Gilbert F., who has a learning disability, in a private school after the school district was unable to find an appropriate placement for Gilbert.

Two years later, during which the School District reimbursed the family for the tuition costs that were associated with Gilbert’s private school, the School District developed an Individualized Education Plan (IEP) that included a program in a public school. Dissatisfied with the IEP, Tom F. challenged the plan through a due process hearing.

Through a series of appeals, the Independent Hearing Officer and the U.S. Court of Appeals for the Second Circuit sided with Tom F. that the costs of the private school placement were recoverable notwithstanding the fact that Gilbert has never been enrolled in the New York public schools. Midway through the process, the U.S. District Court sided with the School District, holding that private tuition costs were not recoverable in such cases.

Today, the U.S. Supreme Court deadlocked in the case 4-0-4. Months after certiorari was granted, but just days before the October 1 oral argument, Justice Anthony Kennedy recused himself from the case. Without the ninth vote, the decision upholds the Second Circuit ruling below, but is not a precedential ruling.

Tuesday, October 09, 2007

In Court, Things are Often as the Judge Appears

In Oscar Wilde’s novel The Picture of Dorian Gray, the villain, Lord Henry Wotton fatefully remarks: “It is only shallow people who do not judge by appearances.”

And Lord Henry just might be right….

During the last week of September, District Court Judge Kevin Burke, of the Fourth Judicial District, teamed up with Judge Steve Leben, of the Kansas Court of Appeals, to release their White Paper on Procedural Fairness.

The duo assert that: “Judges can alleviate much of the public dissatisfaction with the judicial branch by paying critical attention to the [four] key elements of procedural fairness” – namely: voice (the ability of parties to participate in the case by expressing their viewpoints); neutrality (which includes the consistent applicaton of legal principles, unbiased decision-makers and “transparency” as to how decisions are made); respectful treatment; and engendering trust (through actions that are benevolent, caring and which aid the litigants in understanding both the process and its results).

Among the most interesting features of the paper is the discussion of how a judge’s body language can impact the litigant’s views of the fairness and legitimacy of the overall process. As the two judges summarize:

In 2001, researcher Laurinda Porter conducted in-court observations of trial judges’ nonverbal behavior in the Fourth Judicial District of Minnesota (Hennepin County)....

Porter noted that “almost all the judges observed used nonverbal behaviors . . . that are considered to be ineffective and in need of improvement. About one-third of the judges used these ineffective behaviors frequently.” Some of these behaviors on the bench included the more obvious concerns such as a failure to make eye contact, focusing on a cup of coffee, and the use of a sarcastic, neutral, or exasperated tone of voice. She also noted actual displays of negative emotions, such as anger or disgust, sighing audibly, kicking feet up on the table, and “using self-oriented gestures such as rubbing, scratching, picking, licking, or biting parts of the body (to excess).
Advising these same judges, the team goes on to recommend: “Arrange to have yourself videotaped, particularly when you preside in heavy calendars. Ideally, review the tape with a professional or colleagues who will aid your analysis, but even if no one sees it except you (and perhaps a partner or spouse), you can still learn a lot about how you are perceived by the people before you.”

The complete report, including the duo’s handy checklists of suggestions for every participant in the process, is accessible here.

Panel is Undoubtedly Correct, But Decision Still Had Me Wondering

The Court of Appeals issued a decision today affirming the civil commitment of Keith Roy Harding to the Minnesota Extended Treatment Options (METO) program. While the panel's recitation of the evidence makes clear that the affirmance is undoubtedly correct, my “inner civil libertarian” coughed loudly at the following passage from the panel’s opinion:
The district court found that Harding’s conduct resulting from his developmental disability poses a substantial likelihood of physical harm to himself or to others because “he has a history of soliciting sex from children and/or placing himself in situations where others believe [Harding] is soliciting sex from children.” Harding argues that this finding is inadequate because “plac[ing] himself in situations where others believe he is soliciting sex from children” is not evidence of harm. But Harding fails to recognize that, by behaving in a manner that causes others to believe he is soliciting sex from minors, Harding provokes harm from others…. [Because] Harding is likely to harm himself by provoking others, the district court’s finding that Harding is developmentally disabled is adequate on this basis.
The passage made me wonder how far that principle might extend. Would the state’s interest in safeguarding a vulnerable adult from predation be a basis for civil commitment on its own? For example, would a developmentally disabled vulnerable adult's improvident choice to associate with gang members, prompt a commitment petition? It had me wondering.

If you are wondering too, the panel’s complete analysis is accessible here.

Monday, October 08, 2007

Will the Graying of State Government Lead to a Rise in Black Belts?

Under an Executive Order issued by Governor Tim Pawlenty last week, state agencies were directed to develop and implement new strategies “to address key human capital issues identified through the workforce planning process.”

As the Governor notes in his Order, twenty percent of state workers will reach the average age for retirement – namely, 61 years of age – during the next five years; a number that balloons to thirty-nine percent of all state workers within 10 years.

To my mind, among the most interesting features of this planning effort is the direction to agency heads that they redouble efforts to redefine current processes and the delivery of government services. In this process a manual from the Department of Employee Relations urges agencies to make greater use of “business process reengineering tools (e.g., LEAN, Six Sigma) as necessary to develop more efficient business processes.”

If Six Sigma Black Belts were to become more common in state agencies (and there are some now), the times would not only be graying, they would really be a changin’.

Sunday, October 07, 2007

Washington Court Casts Doubt on Minnesota's False Literature Statute, Critical of Support for it Here

In a truly compelling opinion issued on Thursday of this week, a divided Supreme Court of Washington held that a Washington law which prohibited the sponsorship “with actual malice," of political advertisements that “contain a false statement of material fact about a candidate for public office,” was not enforceable under the First Amendment.

Wrote Justice James M. Johnson for the court majority, the Washington statute “'presupposes the State possesses an independent right to determine truth and falsity in political debate,' a proposition fundamentally at odds with the principles embodied in the First Amendment.” Moreover, continued the majority, this supposition “naively assumes that the government is capable of correctly and consistently negotiating the thin line between fact and opinion in political speech.”

The rub for local election lawyers is that the Washington Supreme Court specifically points to the Minnesota False Claims statute – Minn. Stat. 211B.06 – asserting that it is among six statutes that are “virtually identical” to the statute that it set aside. And while acknowledging that other state supreme courts have upheld such measures against constitutional attack, the court majority in Washington State argues that “such holdings should be neither admired nor emulated.”

The court's majority opinion is accessible here, a concurring opinion here, and the dissent of four Justices is accessible here.

Friday, October 05, 2007

The Hard-Hearted: How the Administrative Lawyer’s Success Undermines Mercy

Posted to the Social Science Research Network yesterday is an article that just may have you pondering the whole weekend long.

In a piece that will be published in an upcoming issue of the Harvard Law Review, Rachel Barkow, a Professor at the New York University School of Law, argues that the administrative law bar’s drumbeat in favor of placing checks upon the exercise of official discretion has resulted in an atrophy of these discretionary powers at a time when they are needed most. Barkow links the rise of the administrative state with larger rollbacks in official mercy, asserting that “the commonly viewed cornerstones of administrative law – reasoned decisionmaking and judicial review – are costly tools if applied to [jury] nullification and clemency because they would act to depress mercy.” Moreover, Rakow argues that the administrative state reinforces a broader legal culture that holds up judges (as opposed to non-lawyer Governors or juries) as the officials who are called upon to prevent unfair applications of the law.

And Shakespeare's Portia was right about official grace: “The quality of mercy is not strain'd ... it becomes the throned monarch better than his crown ....”

To learn how precisely how such grace “is above this sceptred sway,” Professor Rakow’s article is accessible here.

Wednesday, October 03, 2007

Prodded Presidents to Present Privileges, Pronto!

The U.S. District Court for the District of Columbia issued an interesting opinion on Monday regarding the interplay between federal statutes, implementing regulations and Executive Orders.

At issue in the case was whether an Executive Order handed down by President George W. Bush could extend the time period that former Presidents may have to review documents generated during their Administrations, before these materials are made available to the public.

The relevant statute – the Presidential Records Act of 1978 – asserted public ownership over presidential records, but disclaimed that it expanded or contracted the scope of the privileges that a Chief Executive might have as to those records. A later regulation promulgated by the National Archives provided that before making items available, the Archivist of the United States would extend at least “30 days notice to the former president to allow him, or his designated representative, to assert any rights or privileges that would foreclose [public] access to the materials.” By way of an Executive Order, President George W. Bush directed the Archivist to grant former Presidents at least 90 days to review such items, and to permit the former office-holders additional extensions of the review period as they were requested.

The District Court held that because the Executive Order obliged the Archivist to surrender discretion that was conferred upon him by federal regulations – namely, the discretion as to whether to release the documents after the 30 day review period had lapsed – the Executive Order violated the Administrative Procedures Act.

The Court’s complete analysis is accessible here.

Tuesday, October 02, 2007

A Big Week for Minnesota Plaintiffs at the Court of Federal Claims

On Wednesday of last week, the U.S. Court of Federal Claims – an Article I federal court that hears suits against the United States Government – issued two opinions, in separate cases, involving Minnesota litigants.

In Northern States Power v. United States, Senior Judge John P. Wiese, ruled that the NSP was entitled to recover $116,485,000 in damages for a contract period through December 31, 2004.

NSP's claim for recovery arises out of the U.S. Department of Energy's breach of a waste storage contract. The contract required NSP to pay an annual fee in return for the agency’s “acceptance, transfer, and permanent storage of the spent nuclear fuel and other hazardous waste produced by the utility’s generation of electricity at Prairie Island.”

Among the more interesting features of the case, is the discussion of when NSP should have begun to incur costs for alternative storage arrangements. NSP argued that it should be permitted to recover mitigation costs, that it incurred in avoiding more serious waste storage problems, beginning in 1988. In 1987, DOE amended its Mission Plan to state that it was unlikely that the agency would “construct a permanent repository and begin pick-up of spent nuclear fuel by [the contract dues date of] January 31, 1998.” The government argued that the period of cost-avoidance should not have begun until May of 1995, when the agency declared in the Federal Register that it did not have either a facility to store the waste or “an unconditional statutory or contractual obligation to accept high-level waste and spent nuclear fuel beginning January 31, 1998, in the absence of a repository ....”

Siding with NSP, Judge Wiese concluded that “a party’s duty to mitigate arises when there is 'reason to know' that performance by the other party will not be forthcoming;” not when the agency finally declares that it is in breach.

The court's complete analysis is accessible here.

In Wolfchild v. United States – a case which raises questions as to who may be the rightful owners of the Mystic Lake Casino in Shakopee, Minnesota – Judge Charles F. Lettow certified two critical questions of law for the U.S. Court of Appeals for the Federal Circuit.

The case pivots on the meaning of a series of Congressional enactments in 1888, 1889, and 1890 in favor of certain members of the Mdewakanton Band of Sioux Indians. These band members assisted white settlers in Minnesota during the 1862 Sioux uprising and later became known as the “the loyal Mdewakanton.” At issue in the case is whether the Congressional enactments created trusts that are still operative today; as they involve some very valuable tribal real estate and more than 20,750 individuals (some still in utero) claiming descent from the original loyal Mdewakanton beneficiaries.

Acceding to the government request in part, Judge Lettow certified for consideration by the appellate court earlier rulings he had made to the effect that the Congressional enactments did establish a trust for the benefit of the loyal Mdewakanton and their descendents, and that this trust was not terminated by a later Congressional enactment in 1980.

The Court’s complete analysis is accessible here.

Monday, October 01, 2007

My New Favorite Phrase

In advance of the debut of his new book, My Grandfather's Son, U.S. Supreme Court Justice Clarence Thomas gave an extensive interview to Steve Croft of 60 Minutes. My favorite portion of the interview – which was broadcast last evening and is still accessible in print and video here – was the Justice's recollection of his Grandfather's no-nonsense rebuke of doubts and doubters.

Recalling the words of the older man, Thomas noted: "And he would say, 'Old Man Can't is dead.... I helped bury him.' I can't tell you how many times I've heard that. He felt very, very strongly that nothing was impossible."

If someone doesn't beat me to it, I am going to make T-shirts with that slogan.

Truer words of hope, grit and promise have never been spoken.

Federal Circuit in the Big Apple: Pardon Our Dust While We Remodel

The offices of the U.S. Court of Appeals for the Federal Circuit are undergoing some important changes in October.

In addition to a new website address, which is more in line with the URLs of the other Circuit Courts of Appeal (accessible here), the Court is undertaking some significant renovations to its physical spaces in the National Courts Building. In fact, the Clerk’s office advises that while the physical construction is underway, copies of oral argument recordings and final opinions will only be available on the Internet.

Also, this month's arguments have been transferred north to the Big Apple. Appellate panels will hear arguments in spaces of the United States District Court for the Southern District of New York, the United States Court of International Trade, Columbia University School of Law, Fordham University School of Law, and New York University School of Law.