A Guide to the Supreme Court’s Review of the 2010 Health Care Reform Law, January 12, 2012

Jurors’ Use of Social Media During Trials and Deliberations - A Report to the Judicial Conference Committee on Court Administration and Case Management, Meghan Dunn, Federal Judicial Center November 22, 2011

Guidance on Live, Text-Based Communications from Court: "This Practice Guidance (the Guidance) applies to court proceedings which are open to the public and to those parts of the proceedings which are not subject to reporting restrictions. It is issued (as Guidance and not a Practice Direction) following a consultation relating to the use of live, text-based communications. Those consulted included the Judiciary, the Secretary of State for Justice, the Attorney General, the Director of Public Prosecutions, the Bar Council, the Law Society, the Press Complaints Commission, and the Society of Editors in addition to interested members of the public via the Judiciary website.
2) The Guidance clarifies the use which may be made of live text-based communications, such as mobile email, social media (including Twitter) and internet enabled laptops in and from courts throughout England and Wales. For the purposes of this Guidance these means of communication are referred to, compendiously, as live, text-based communications."

Chief Justice's Year-End Reports on the Federal Judiciary, 2011: "Some observers have recently questioned whether the Judicial Conference’s Code of Conduct for United States Judges should apply to the Supreme Court. I would like to use my annual report this year to address
that issue, as well as some other related issues that have recently drawn public attention. The space constraints of the annual report prevent me from setting out a detailed dissertation on judicial ethics. And my judicial responsibilities preclude me from commenting on any ongoing debates about particular issues or the constitutionality of any enacted legislation or pending proposals. But I can provide some clarification on how the Justices address ethical issues and dispel some common misconceptions."

"This application allows public access to court electronic records for Federal District Courts across the United States. Users MUST be registered, have a valid PACER account, to use this application. New users may register here PACER. This application is 'CASE SEARCH' only, therefore documents CANNOT be filed using this applciation, users can only view documents and information that is currently filed. It is important to note that a PACER account is separate from any filing account. A PACER account is required for document access in all federal courts."

News release, December 21, 2011: "The Department of Justice today filed its largest residential fair lending settlement in history to resolve allegations that Countrywide Financial Corporation and its subsidiaries engaged in a widespread pattern or practice of discrimination against qualified African-American and Hispanic borrowers in their mortgage lending from 2004 through 2008. The settlement provides $335 million in compensation for victims of Countrywide’s discrimination during a period when Countrywide originated millions of residential mortgage loans as one of the nation’s largest single-family mortgage lenders. The settlement, which is subject to court approval, was filed today in the U.S. District Court for the Central District of California in conjunction with the department’s complaint which alleges that Countrywide discriminated by charging more than 200,000 African-American and Hispanic borrowers higher fees and interest rates than non-Hispanic white borrowers in both its retail and wholesale lending. The complaint alleges that these borrowers were charged higher fees and interest rates because of their race or national origin, and not because of the borrowers’ creditworthiness or other objective criteria related to borrower risk."

• WSJ: Countrywide Victims Sought - "The Justice Department faces the daunting task of tracking down more than 210,000 alleged victims and determining how to compensate them, following its landmark settlement with Bank of America's Countrywide unit."
  
• Related postings on financial system

CRS — Governmental Tracking of Cell Phones and Vehicles: The Confluence of Privacy, Technology, and Law. Richard M. Thompson, Law Clerk. December 1, 2011

Jeff Lamicela: "The latest available data from the Justice Department show that federal health care fraud prosecutions reached an historic high last year. During the twelve months of fiscal year 2011, the government reported 1,235 new health care fraud prosecutions - the largest number reported since separate tracking of this offense began twenty years ago. This number is up 68.9% over the past fiscal year when the number of criminal prosecutions totaled 731...The Southern District of Florida (Miami) led the nation in activity, accounting for nearly one out of every nine health care fraud prosecutions, followed by the Southern District of Texas (Houston). Together, these two districts accounted for over one out of every five health care fraud prosecutions."

"Amendments to the Federal Rules of Appellate, Bankruptcy, Criminal Procedure, and Evidence took effect December 1, 2011. Congress took no action after the changes were approved by Supreme Court more than seven months earlier. That means new amendments to these rules are now in effect:

• Appellate Rules 4 and 40
  
• Bankruptcy Rules 2003, 2019, 3001, 4004, and 6003.
  
• Criminal Rules 1, 3, 4, 6, 9, 32, 40, 41, 43, and 49.
  
• Evidence Rules 101-1103.
  
• In addition, new Bankruptcy Rules 1004.2 and 3002.1 are in effect, as well as new Criminal Rule 4.1.
  
• The text of the amended rules and extensive supporting documents is available."

What’s So Hard About Regulating Supreme Court Justices’ Ethics? - A Lot, Russell Wheeler, Visiting Fellow, Governance Studies, The Brookings Institution

NYT DealBook: "Jed S. Rakoff, a judge for the Federal District Court for the Southern District of Manhattan, has rejected the proposed $285 million settlement between the Securities and Exchange Commission and Citigroup related to the sale of mortgage securities. Here is the judge’s 15-page opinion, which concluded that the pact was “neither reasonable, nor fair, nor adequate, nor in the public interest.” Judge Rakoff has in the past expressed concern with the S.E.C.’s custom of not forcing a defendant to “neither admit nor deny the allegations” when settling a case. In his ruling Monday, the judge said he couldn’t approve a settlement that was based on “mere allegations.”

"Federal criminal prosecutions for financial institution fraud have continued their downward slide despite the financial troubles reported in this sector. TRAC's analysis of timely Justice Department data show that during the first eleven months of FY 2011 the government reported 1,251 new prosecutions were filed. If this activity continues at the same pace, the annual total of prosecutions will be 1,365 for this fiscal year, down 28.6 percent from their numbers of just five years ago and less than half the level prevalent a decade ago."

Scholars’ Briefs and the Vocation of a Law Professor, by Richard H. Fallon, Jr.

"The National Archives and Records Administration (NARA) has publicly released the transcripts of President Richard Nixon's Watergate grand jury testimony. In collaboration with the U.S. Government Printing Office (GPO), the collection has been released on FDsys. This collection has been made public as a result of the July 29, 2011 order by Chief Judge of the United States District Court for the District of Columbia Royce C. Lamberth that the June 1975 transcript of Nixon's testimony and the "Associated Materials" to that testimony be released to the public following the review of these documents for any information that must be redacted as required by law. It is rare for any grand jury testimony to be made public." These documents are available on three websites as follows:

• Government Printing Office (GPO)
  
• Scribd
  
• National Archives/Our Archives - Wiki

Follow up to previous postings on sentencing guidelines, see the following

Follow up to previous postings on sentencing guidelines, the 2011 Guidelines Manual (effective November 1, 2011) is available in HTML and Adobe PDF formats (large file and broken into chapters), which can be viewed, downloaded or printed via the website. Individual Chapters 1-8 and Guidelines in HTML or PDF Format

• View the 2011 Federal Sentencing Guidelines Manual in HTML
  
• View the 2011 Federal Sentencing Guidelines Manual in PDF

Judicial Ethics and Social Networking Sites: "Michael Crowell
UNC School of Government, September 2011 (Revised)

United States Courts Opinions - BETA

Roberts, Anna, (Re)Forming the Jury: Detection and Disinfection of Implicit Juror Bias (September 29, 2011). Connecticut Law Review, Vol. 44, 2012.

"The Reference Manual on Scientific Evidence, Third Edition assists judges in managing cases involving complex scientific and technical evidence by describing the basic tenets of key scientific fields from which legal evidence is typically derived and by providing examples of cases in which that evidence has been used. First published in 1994 by the Federal Judicial Center, the Reference Manual on Scientific Evidence has been relied upon in the legal and academic communities and is often cited by various courts and others. Judges faced with disputes over the admissibility of scientific and technical evidence refer to the manual to help them better understand and evaluate the relevance, reliability and usefulness of the evidence being proffered. The manual is not intended to tell judges what is good science and what is not. Instead, it serves to help judges identify issues on which experts are likely to differ and to guide the inquiry of the court in seeking an informed resolution of the conflict. The core of the manual consists of a series of chapters (reference guides) on various scientific topics, each authored by an expert in that field. The topics have been chosen by an oversight committee because of their complexity and frequency in litigation. Each chapter is intended to provide a general overview of the topic in lay terms, identifying issues that will be useful to judges and others in the legal profession. They are written for a non-technical audience and are not intended as exhaustive presentations of the topic. Rather, the chapters seek to provide judges with the basic information in an area of science, to allow them to have an informed conversation with the experts and attorneys."

News release: "Congresswoman Louise Slaughter, Ranking Member of the House Rules Committee, together with 19 Members of Congress, today sent a letter to the Judicial Conference, requesting that the Conference follow the law and refer the matter of Justice Clarence Thomas's non-compliance with the Ethics in Government Act of 1978 to the Department of Justice. Throughout his entire tenure on the Supreme Court, Justice Thomas has checked a box titled "none" on his annual financial disclosure forms, indicating that his wife had received no income, despite the fact that his wife had in fact earned nearly $700,000 from the Heritage Foundation from 2003-2007 alone."

News release: "The Conference also authorized an increase in the Judiciary's electronic public access fee in response to increasing costs for maintaining and enhancing the electronic public access system. The increase in the electronic public access (EPA) fee, from $.08 to $.10 per page, is needed to continue to support and improve the Public Access to Court Electronic Records (PACER) system, and to develop and implement the next generation of the Judiciary's Case Management/Electronic Case Filing system. The EPA fee has not been increased since 2005. As mandated by Congress, the EPA program is funded entirely through user fees set by the Conference. Implementation of the two-cent per page increase will take a minimum of six months."

Transactional Records Access Clearinghouse - Rising Immigration Backlog At All-time High Yet Criminal, National Security, and Terrorism Cases Fall

Blog of the Legal Times: "Responding to a lawsuit filed by five of the nation's largest cigarette manufacturers, the U.S. Food and Drug Administration filed Friday to block any delay to new regulations requiring graphic warning labels on cigarette packages. The tobacco companies are suing the agency in U.S. District Court for the District of Columbia, claiming that the new labels cross the line from factual warnings to unconstitutionally compelled speech. The companies want a preliminary injunction postponing the date the new rules go into effect. In its opposition brief, the FDA is pushing back against the companies’ claim that they would suffer “economic harm” by spending several million dollars to produce the new labels in the meantime. The new regulations are set to go into effect in September 2012."

News release: "The Federal Housing Finance Agency (FHFA), as conservator for Fannie Mae and Freddie Mac (the Enterprises), today filed lawsuits against 17 financial institutions, certain of their officers and various unaffiliated lead underwriters. The suits allege violations of federal securities laws and common law in the sale of residential private-label mortgage-backed securities (PLS) to the Enterprises. These complaints were filed in federal or state court in New York or the federal court in Connecticut. The complaints seek damages and civil penalties under the Securities Act of 1933, similar in content to the complaint FHFA filed against UBS Americas, Inc. on July 27, 2011. In addition, each complaint seeks compensatory damages for negligent misrepresentation. Certain complaints also allege state securities law violations or common law fraud."

"Creating a judicial pool for the 21st Century, one with intellect, fair-mindedness and integrity that resembles the nation that it serves, is a top priority for President Obama and his administration. In fact, the President’s nominations for federal judges embody an unprecedented commitment to expanding the racial, gender and experiential diversity of the men and women who enforce our laws and deliver justice...To better understand how the Senate delays are impacting American families and businesses, take a look at our infographic that explains the confirmation process and highlights the bottleneck."

"A Federal judge has ruled that law enforcement officers must have a warrant to access cell phone locational data. Courts are divided regarding whether or not this type of data should be protected by a warrant requirement. Judge Garaufis of the Eastern District of New York, found that "The fiction that the vast majority of the American population consents to warrantless government access to the records of a significant share of their movements by 'choosing' to carry a cell phone must be rejected…In light of drastic developments in technology, the Fourth Amendment doctrine must evolve to preserve cell-phone user's reasonable expectation of privacy in cumulative cell-site-location records." EPIC has filed amicus briefs in several related cases. For more information see: EPIC: Commonwealth v. Connolly, EPIC: US v. Jones, and EPIC: Locational Privacy."

Federal Agency Use of Electronic Media in the Rulemaking Process, by Cary Coglianese - University of Pennsylvania [via Michael Ravnitzky]

"According to statistics released by the Administrative Office of the U.S. Courts, bankruptcy petitions filed in the 12-month period ending June 30, 2011 totaled 1,529,560, down 2.7 percent from the 1,572,597 bankruptcy petitions filed in the 12-month period ending June 30, 2010. Despite the slight drop in overall filings nationwide, the number of bankruptcy filings increased in 19 of the 94 districts. The largest percentage increases in bankruptcy filings were in the Southern District of Florida, with a 15 percent increase over 2010, and the Districts of Utah and the Central District of California, where filings for the 12-month period ending June 30, 2011 increased 13 percent over 2010. Additional statistics released include business and non-business filings for the 12-month period ending June 30, 2011; a comparison of June 2010 and 2011 filings, 3rd quarter filings; monthly filings for the 12-month period ending June 30, 2011; and filings per capita."

"The number of disability cases awaiting a hearing and decision by the Social Security Administration (SSA) continued to climb during the most recent quarter, from April 1 to June 30, 2011. Pending cases rose to 746,712 at the end of this period, up 7.5 percent from 694,417 one year ago. According to an analysis by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, this is the fourth straight quarter when cases awaiting a hearing before the Office of Disability Adjudication and Review of the SSA have increased despite the agency's long standing objective to reduce the overall number of pending cases.

A Good Quarrel. America's Top Legal Reporters Share Stories from Inside the Supreme Court — Timothy R. Johnson and Jerry Goldman (eds.) - Reviewed by Molly Selvin. Association of American Law Schools Journal of Legal Education, Volume 60, May 2011, Number 4

Via Jeff Lamicela: "During the first six months of FY 2011, decision times continued to climb in cases disposed of by the Immigration Courts, according to timely government enforcement data obtained by the Transactional Records Access Clearinghouse (TRAC). The increasingly long average wait reached 302 days -- up 7.5 percent in the last six months, and almost 30 percent higher than the average disposition time during FY 2009. Average times varied, depending upon the nature of the court's decision, from 141 days for removal orders up to 714 days for grants of relief."

Study on the Resolution of Financial Companies under the Bankruptcy Code, July 2011

News release: "The Federal Trade Commission is mailing 450,177 refund checks worth almost $108 million to homeowners who were allegedly overcharged by Countrywide Home Loans, Inc. As part of the FTC’s efforts to protect financially distressed homeowners, the FTC reached a settlement with Countrywide last year over allegations that the company collected excessive fees from borrowers who were struggling to keep their homes...The FTC’s June 2010 settlement order required Countrywide, which is now owned by Bank of America, to pay $108 million to be used for refunds and barred the company from taking advantage of borrowers who have fallen behind on their payments. The refunds are being distributed to consumers whose loans were serviced by Countrywide between January 1, 2005, and July 1, 2008, and who were subject to the company’s allegedly unlawful practices."

"A total of 15,173 Federal criminal prosecutions were recorded as being filed during April 2011, according to the most recent data released by the Department of Justice. Immigration charges again took the top two spots for the most frequent lead charges brought. Illegal entry -- with 4,782 defendants charged, up sharply in April -- was the charge most commonly recorded, followed by illegal reentry with 3,047 prosecutions. The judicial district with the most federal prosecutions in April was Arizona with 3,216, down slightly from 3,428 prosecutions in that state recorded during March. In addition to immigration, TRAC offers free reports on convictions and prosecutions for program categories such as white collar crime, terrorism, weapons and drugs. TRAC also reports on the enforcement activities of selected government agencies such as DHS, FBI, IRS and ATF."

"The Social Security Administration's (SSA) critical response to a July 4 report by the Transactional Records Access Clearinghouse (TRAC) ignored the body of evidence presented by TRAC about systematic and hard-to-explain disparities within the SSA's court system. A point-by-point refutation of the agency's sweeping statement regarding TRAC's report can be found here. Read TRAC's original report, here. Embedded in the report is a special interactive table giving the public access to extensive counts and rates that further document the degree of the disparities among individual judges in a Social Security hearing office as well as disparity measures for each office as a whole."

"The Prime Minister has today committed to publishing key data on the National Health Service, schools, criminal courts and transport. This represents the most ambitious open data agenda of any government anywhere in the world. The new data [see data.go.uk] will reveal clinical achievements and prescribing data by individual GP practices, the performance of hospital teams in treating lung cancer and other key healthcare conditions, the effectiveness of schools at teaching pupils across a range of subjects, criminal sentencing by each court, and data on rail timetables, rail service performance, roadworks, current road conditions, car parks and cycle routes in an open format for use by all. The new commitments, set out in a letter from the Prime Minister to Cabinet colleagues, aim to provide the public with more information about the performance of services they use every day, and to help to drive modern, personalised and sustainable public services. The new data are also expected to drive economic growth as they promote the creation of new services and applications."

Via LLRX.com: Pretrial Detention, Bail and Due Process - Ken Strutin's guide comprises recent publications and other notable resources concerning the relationship between the administration of bail and the requirements of due process. Pretrial detention of suspects directly impacts the presumption of innocence. The cornerstone of the justice system is that no one will be punished without the benefit of due process. Incarceration before trial, when the outcome of the case is yet to be determined, cuts against this principle. The Founders were aware of the dangers inherent in indiscriminate imprisonment, which is one of the main reasons behind the inclusion of the Eighth Amendment in the Bill of Rights, prohibiting excessive bail.

"Federal and state applications for orders authorizing or approving the interception of wire, oral or electronic communications increased 34 percent in 2010, compared to the number reported in 2009. The interceptions are reported in the 2010 Wiretap Report, released today by the Administrative Office of the United States Courts (AOUSC). The current report covers intercepts concluded between January 1, 2010 and December 31, 2010. A total of 3,194 intercept applications by federal and state courts were authorized in 2010, with 1,207 applications by federal authorities authorized and 1,987 applications by 25 states authorized. One application was denied. Installed intercepts totaled 2,311."

Follow up to previous postings on sentencing guidelines, this ews release: "The United States Sentencing Commission voted unanimously today to give retroactive effect to its proposed permanent amendment to the federal sentencing guidelines that implements the Fair Sentencing Act of 2010. Retroactivity of the amendment will become effective on November 1, 2011 - the same day that the proposed permanent amendment would take effect; unless Congress acts to disapprove the amendment...Not every federal crack cocaine offender in federal prison will be eligible for a lower sentence as a result of this decision. The Commission estimates, based on Fiscal Year 2010 sentencing data, that approximately 12,000 offenders may be eligible to seek a sentence reduction. The average sentence reduction for eligible offenders will be approximately 37 months, and the overall impact on the eligible offender population will occur incrementally over decades. The average sentence for these offenders, even after reduction, will remain about 10 years. The Bureau of Prisons estimates that retroactivity of the Fair Sentencing Act of 2010 amendment could result in a savings of over $200 million within the first five years after retroactivity takes effect."

US Courts: "The annual cost of keeping someone imprisoned in a Federal Bureau of Prisons facility in fiscal year 2010 was $28,284.16. The annual cost of probation supervision was $3,938.35. Those figures work out to a daily cost of $77.49 for incarceration of a convicted criminal, and $10.79 for supervised release. The daily cost of holding a criminal defendant in pretrial detention in FY 2010 (the 12-month period ending September 30, 2010) was $70.56, and the daily cost of pretrial supervision was $6.62."

"In a 6-3 decision, the Supreme Court struck down Vermont's prescription privacy law. IMS Health, Inc. v. Sorrell held that the Vermont statute, which bars disclosure of prescription data for marketing purposes, violates data mining firms' free speech rights. Vermont "burdened a form of protected expression that it found too persuasive. At the same time, the State has left unburdened those speakers whose messages are in accord with its own views. This the State cannot do." the Court wrote. The Court suggested that a more privacy-protective statute might have withstood Constitutional scrutiny, writing "the State might have advanced its asserted privacy interest by allowing the information’s sale or disclosure in only a few narrow and well-justified circumstances. A statute of that type would present quite a different case than the one presented here." EPIC filed an amicus brief on behalf of 27 technical experts and legal scholars, as well as nine consumer and privacy groups, arguing that the privacy interest in safeguarding medical records is substantial and that the "de-identification" techniques adopted by data-mining firms do not protect patient privacy. For more information, see EPIC: IMS Health v. Sorrell."

News release: [On May 31, 2011] New York "Attorney General Eric T. Schneiderman announced he was filing a lawsuit against the federal government for its failure to commit to a full environmental review of proposed regulations that would allow natural gas drilling – including the potentially harmful fracking technique – in the Delaware River Basin. Last month, the Attorney General notified the federal government that if it did not commit to conducting an environmental review before the regulations authorizing gas drilling are finalized, he would take legal action to compel such a study...In April, just one day before a blowout at a Pennsylvania natural gas drilling site caused gallons of chemical-laced water to spill over neighboring land and into a stream, the Attorney General demanded that the federal government comply with the National Environmental Policy Act (NEPA). The law requires federal agencies to conduct a full review of actions that may cause significant environmental impacts. Despite the legal requirement, the Delaware River Basin Commission (DRBC) – with the approval of its supporting federal agencies – proposed regulations allowing natural gas development in the Basin without undertaking any such review. Represented by U.S. Army Corps of Engineers Brigadier General Peter A. DeLuca, the involved federal agencies include the Army Corps, the National Park Service, the U.S. Fish and Wildlife Service and the Environmental Protection Agency."

"The number of cases awaiting resolution before the Immigration Courts reached a new all-time high of 275,316 by the beginning of May 2011, according to very timely government enforcement data obtained by the Transactional Records Access Clearinghouse (TRAC). The case backlog has continued to grow — up 2.8 percent — since TRAC's previous report four months ago, and 48 percent higher than levels at the end of FY 2008. Wait times have increased since our previous report. The average time these pending cases have been waiting in the Immigration Courts of the Executive Office for Immigration Review (EOIR) is now 482 days, compared with 467 days at the end of last year."

American Constitution Society (ACS): "Have you ever thought about becoming a judge? Even most lawyers and law students don’t know much about how to approach the process, the National Asian Pacific American Bar Association’s Tina Matsuoka pointed out during an event on the topic yesterday. ACS and seven other legal groups have launched a publication, The Path to the Federal Bench, intended to help demystify the process and encourage people from diverse backgrounds to pursue federal judgeships. The booklet includes tips on everything from assessing your candidacy to navigating the increasingly difficult nomination and confirmation process, and features the stories of several judges. This coalition of groups has already held a number of panel discussions around the country about the process of pursuing judgeships, and video of some of those events, as well as a short one-on-one interview with U.S. Court of Appeals for the Fourth Circuit Judge Andre M. Davis, is available at a new ACS web page focused on the path to the bench."

Transactional Records Access Clearinghouse: "Federal criminal prosecutions totaled 13,092 for the month of February according to the most recent data released by the Department of Justice. This was an increase of 18 percent from the previous month. Among the program categories, the largest number of prosecutions was seen in immigration, accounting for 49 percent of the filings. Drug trafficking crimes accounted for 12 percent of the total."

Poverty Guidelines for 2011 Posted - May 10, 2011

"CourtListener (Beta) was created by Michael Lissner as part of a masters thesis at the University of California, Berkeley School of Information. Michael was advised by Assistant Professor, Brian Carver. The goal of the site is to create a free and competitive real time alert tool for the U.S. judicial system. At present, the site has daily information regarding all precedential opinions issued by the 13 federal circuit courts and the Supreme Court of the United States. Each day, we also have the non-precedential opinions from all of the Circuit courts except the D.C. Circuit. This means that by 5:10pm PST, the database will be updated with the opinions of the day, with custom alerts going out shortly thereafter. The coverage of our corpus for a given court varies, but it is growing on a daily basis. We are working to integrate the documents from other online sites that provide free public access to court documents. To see a detailed overview of our corpus (updated daily), visit our coverage page." [Carolyn Edds]

FISA Annual Reports to Congress 2010 [via FAS]

U.S. Court of Appeals for the D.C. Circuit, James Sherley v. Kathleen Sebelius, April 29, 2011: "GINSBURG, Circuit Judge - Two scientists brought this suit to enjoin the National Institutes of Health from funding research using human embryonic stem cells (ESCs) pursuant to the NIH’s 2009 Guidelines. The district court granted their motion for a preliminary injunction, concluding they were likely to succeed in showing the Guidelines violated the Dickey-Wicker Amendment, an appropriations rider that bars federal funding for research in which a human embryo is destroyed. We conclude the plaintiffs are unlikely to prevail because Dickey-Wicker is ambiguous and the NIH seems reasonably to have concluded that, although Dickey-Wicker bars funding for the destructive act of deriving an ESC from an embryo, it does not prohibit funding a research project in which an ESC will be used. We therefore vacate the preliminary injunction."

Follow up to previous postings on the Deepwater oil spill, via FindLaw:

• BP's Complaints Against Transocean Over Gulf Oil Spill: "BP submitted a court filing in the ongoing litigation regarding last year's oil rig explosion and oil spill in the Gulf of Mexico alleging that the owner of the Deepwater oil rig violated the law and caused the explosion and subsequent spill."
  
• BP Files Lawsuit Against Halliburton Over Gulf Oil Spill: "BP filed a lawsuit in federal court in Texas alleging that Halliburton's improper conduct contributed to the oil rig explosion and resulting oil spill in the Gulf of Mexico last year."
  
• BP Sues Maker of Blowout Preventer in Gulf Oil Spill: "In a cross-claim filed as part of the ongoing litigation surrounding last year's oil rig explosion and oil spill in the Gulf of Mexico, BP alleges that the manufacturer of the blowout preventer designed, manufactured, maintained and modified the preventer in a way that rendered it "unreasonable dangerous when used as intended."

Another invaluable service for researchers that facilitates free access to court opinions - from the innovative experts at Justia - who are now "providing FREE Daily & Weekly Opinion Summaries for all Federal Courts, and selected State Supreme Courts. See an example daily email for the U.S. 9th Circuit Court of Appeals or a weekly practice area email for Environmental Law."

"The Solicitor General filed a petition with the Supreme Court about the growing dispute in the federal courts over warrantless locational tracking. There is a split among the appellate court about GPS tracking by police agencies. The petition appeals a decision from the DC Circuit which held that the warrantless tracking of a motor vehicle violates the Constitutional right against unlawful searches. Earlier, EPIC filed an amicus brief in the Massachusetts Supreme Judicial Court case that also held that a warrant is required for the use of a GPS tracking device. For more information, see EPIC - Commonwealth v. Connolly and EPIC - Locational Privacy."

"This short essay will be part of an issue of the Federal Sentencing Reporter devoted to recommended action for the U.S. Sentencing Commission. The present essay calls attention to the relevance of therapeutic jurisprudence to the sentencing function. It looks at some legal rules and guidelines that do not effectively motivate convicted persons to focus on the future, and it also shows how judges need guidance not only on what sentences to impose but also on the manner and process of sentence imposition."

A Guide For the Perplexed Part IV: The Rejection of the Google Books Settlement, by Jonathan Band

"This is the official YouTube Channel for the US Court of Appeals for the Ninth Circuit. In addition to these video recordings, you may find audio recordings of our hearings on our internet site at http://www.ca9.uscourts.gov."

"EPIC asked a federal court in Washington, DC to reconsider its earlier decision allowing the Department of Homeland Security to keep secret 2,000 airport body scanner images in EPIC's Freedom of Information Act lawsuit. The Court relied on a legal theory in its decision, "Exemption High b(2)," that was recently struck down by the Supreme Court in Navy v. Milner. In Milner, the Court held that FOIA exemption 2 only applies to records concerning employee relations and human resources issues. Milner overturns previous lower court decisions that applied the exemption to broader categories of records, allowing federal agencies to block disclosure of documents to the public. EPIC argues in its motion that the Department of Homeland Security is unlawfully withholding information about the airport scanners from the public. For more information, see EPIC-Milner v. Dept. of Navy and EPIC v. DHS - Body Scanners."

EPIC: "Judge Denny Chin struck down a proposed settlement between Google and copyright holders that would have imposed significant privacy risks on e-book consumers. Google's proposal would have entitled the company to collect each users' search queries as well as the titles and page numbers of the books they read. In a February 2010 hearing before the Court, EPIC President Marc Rotenberg explained EPIC Press Release: EPIC Urges Court To Reject Google Books Settlement; EPIC: Google Books Settlement and Privacy."

Judicial Caseload Indicators 12-Month Periods Ending September 30, 2010: "In fiscal year 2010, the federal district courts saw continued growth in civil, criminal, and bankruptcy filings, as well as the number of pretrial services cases and persons under supervision. This continues a decade-long trend of growth in these filings. Only the total number of appeals filed declined, pulled down by slight drops in criminal and administrative agency appeals. The number of civil appeals filed remained relatively unchanged. Federal court caseload statistics for fiscal year 2010 were released today by the Administrative Office of the United States Courts. Complete statistics for FY 2010, which ran from October 1, 2009, to September 30, 2010, are now available in Judicial Business of the United States Courts, here."

ACLU And EFF Plan To Appeal Ruling In Case Challenging Government Attempt To Obtain Private Data in WikiLeaks Investigation

United States Courts: "Federal court caseload statistics through June 30, 2010, reflect the work of federal appellate, district, and bankruptcy courts, as well as the federal probation and pretrial services system. Included in the Statistical Tables for the Federal Judiciary is one that compares data for the 12-month period ending June 30, 2010, to that for the same period one, five, and 10 years earlier. Tables dating back to 2001 are archived online."

EPIC: "In Navy v. Milner, the Supreme Court held that the Freedom of Information Act’s “Exemption 2” is limited to employee relations and human resources issues. The decision overturns previous decisions by lower courts that applied the exemption to broader categories of records, allowing federal agencies to block disclosure of documents to the public. The Court stated that this practice contravened Congress’s intent. The Court emphasized that Congress intended all nine FOIA exemptions to be construed narrowly. EPIC is currently challenging the use of Exemption 2 in its lawsuit to force disclosure of records concerning full body scanners at airport checkpoints. The Court's decision in Navy v. Milner demonstrates that the Department of Homeland Security is improperly withholding information about the scanners from the public. For more information, see EPIC-Milner v. Dept. of Navy, and EPIC: OPEN Government."

Sealing Court Records and Proceedings: A Pocket Guide, Robert Timothy Reagan, Federal Judicial Center, 2010

The Sentencing Project - The State of Sentencing 2010 Developments in Policy and Practice, Nicole D. Porter, February 2011

Transactional Records Access Clearinghouse report: "Federal criminal prosecutions totaled 12,494 for the month of November according to the most recent data released by the Department of Justice. The Department of Homeland Security was the lead agency for over half (57%) of these prosecutions; other agencies with substantial numbers of referrals were the Drug Enforcement Administration (11%), the FBI (9%) and the Bureau of Alcohol, Tobacco, Firearms and Explosives (5%)."

"Bankruptcy filings in the federal courts rose 8 percent in calendar year 2010, according to data released today by the Administrative Office of the U.S. Courts. Total filings remain at a five-year high. The number of bankruptcies filed in the twelve-month period ending December 31, 2010, totaled 1,593,081, up from 1,473,675 bankruptcies filed in CY 2009. Filings have grown steadily since CY 2006, when bankruptcy filings totaled 617,660, in the first full 12-month period after the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) took effect. An historic high in the number of bankruptcy filings was seen in CY 2005, when over 2 million bankruptcies were filed in anticipation of BAPCPA."

"In today’s world, we face many natural and man-made catastrophic threats, including the very real possibility of a global influenza outbreak or other public health emergency that could infect millions of people. While it is impossible to predict the timing or severity of the next public health emergency, our government has a responsibility to anticipate and prepare for such events. An important element of this planning process is advance coordination between public health authorities and our judicial and legal systems. The major actors in any public health crisis must understand the governing laws ahead of time, and must know what their respective legal roles and responsibilities are. What is the scope of the government’s emergency and police powers? When may these be invoked, and by which officials? What are the rights of people who may be quarantined or isolated by government and public health officials? These questions must be researched and answered now—not in the midst of an emergency—so that the responsible authorities have a readymade resource to help them make quick, effective decisions that protect the public interest. This New York State Public Health Legal Manual - A Guide for Judges, Attorneys and Public Health Professionals, Michael Colodner, Editor-in Chief, is designed to serve this purpose. It will be an absolutely essential tool in guiding us through the effective management of future public health disasters."

"Federal court statistical profiles for the nation’s 12 regional appeals courts and 94 district courts for fiscal year 2010, the 12-month period ending September 30, 2010, are newly available. Federal Court Management Statistics also provides national totals for the appellate and district courts, allowing the statistical totals of each individual court to be compared to a national average. The tables present data based on the number of authorized judgeships, and provide rankings among the appellate and district courts. The tables are archived, dating back to FY 1997."

EPIC: "In Pineda v. William Sonoma, the California Supreme Court has determined that merchants may not require credit card customers to provide ZIP codes. In a unanimous decision, the Court found that ZIP codes are "personal identification information" under the state Credit Card Act of 1971. In the Pineda case, the customer believed that providing an SSN was necessary to complete a credit card transaction. The merchant subsequently used the SSN to determine the customer's home address. The California court said that the Credit Card Act "intended to provide robust consumer protections by prohibiting retailers from soliciting and recording information about the cardholder that is unnecessary to the credit card transaction." For more information, see EPIC - Social Security Numbers and EPIC - Reidentification."

"A detailed analysis of Justice Department and other records has found that criminal enforcement under President Obama is significantly different than it was during the last two years of the Bush Administration. One key finding is that with the increasing focus on immigration, other kinds of felony prosecutions -- particularly in those districts not on the border with Mexico -- have actually gone down. This decline has occurred even though the number of federal prosecutors and investigators has gone up. Also uncovered during the study by the Transactional Records Access Clearinghouse (TRAC) were pronounced geographic shifts in where federal prosecutions occur. One aspect of these shifts is information about enforcement changes in each of the 94 judicial districts. In its examination, TRAC analyzed the enforcement efforts of the two administrations by comparing more than 500,000 case-by-case records obtained from the Executive Office for United States Attorneys under the Freedom of Information Act, as well as information from the Office of Personnel Management and other sources."

Abandoning Law Reports for Official Digital Case Law, Peter W. Martin, Cornell Law School, January 25, 2011, Cornell Legal Studies Research Paper No. 11-01

State of Florida v. U.S. Department of Health and Human Services, 10-cv-00091, U.S. District Court, Northern District of Florida (Pensacola)

National Corrections Reporting Program - Statistical Tables (update), Thomas P. Bonczar, January 20, 2011: "This update adds data for 2007 and 2008 to the electronic series of selected tables on most serious offense, sentence length, and time served in state prison. The National Corrections Reporting Program collects demographic information, conviction offenses, sentence length, credited jail time, type of admission, type of release, and time served from individual prisoner records in participating jurisdictions. Part of the National Corrections Reporting Program Series."

• Sentence length of state prisoners, by offense, admission type, sex, and race (1993-2008)
  
• Time served in state prison, by offense, release type, sex, and race (1993-2008)
  
• Most serious offense of state prisoners, by offense, admission type, age, sex, race, and Hispanic origin (1993-2008)
  Permanent Link

Follow up to Justice Scalia's Comments on equal protection clause of the 14th Amendment to the U.S. Constitution, via Slate - Who Does Justice Look Like? Her changing features — and skin color — over the centuries, by Dennis Curtis and Judith Resnik

"Federal criminal prosecutions totaled 13,916 for the month of September according to the most recent data released by the Department of Justice. This figure is up 6 percent from the previous month, and is down less than one percent from a year ago. TRAC offers free reports on program categories such as immigration, drugs and white collar crime as well as reports on the enforcement activities of selected government agencies such as the DHS, FBI, DEA and IRS. For the latest information on prosecutions and convictions throughout all of fiscal year 2010, go here. This release includes a substantial expansion in the number of lead charges on which individual reports and analyses have been developed. TRAC's U.S. Code section, for example, has expanded to 453 lead charges that resulted in prosecutions or convictions in fiscal year 2010." David Burnham and Susan B. Long, co-directors, Transactional Records Access Clearinghouse.

News release: "Verizon Communications on Thursday (Jan. 20) filed an appeal in the United States Court of Appeals for the District of Columbia Circuit, challenging the Federal Communications Commission's Report and Order on rules dealing with the issue of net neutrality..."Today's filing is the result of a careful review of the FCC's order. We are deeply concerned by the FCC's assertion of broad authority for sweeping new regulation of broadband networks and the Internet itself. We believe this assertion of authority goes well beyond any authority provided by Congress, and creates uncertainty for the communications industry, innovators, investors and consumers." [Michael E. Glover, Verizon senior vice president and deputy general counsel]

EPIC: "The Supreme Court has issued a decision in NASA v. Nelson, a case brought by NASA scientists who argued that the government's invasive background checks violated the Constitution. The Supreme Court found amicus brief , cosigned by 27 technical experts and legal scholars, which highlighted problems with the Privacy Act, including the "routine use" exception, security breaches, and the agency's authority to carve out its own exceptions. For more information, see EPIC: NASA v. Nelson."

Follow up to previous postings on government implementation of whole body scanning technology at airports, this News release: "A federal district court has granted the Department of Homeland Security's motion to conclude one of EPIC's Freedom of Information Act lawsuits. EPIC was seeking more than 2,000 images generated by airport body scanners held by the TSA. The DHS objected to the disclosure and the court sided with the government. The court relied on a legal theory, "Exemption High (b)(2)" that is currently under review by the Supreme Court in Milner v. Dept. of Navy. As a result of this lawsuit, EPIC obtained many documents concerning the airport screening program, including Procurement Specifications, Operational Requirements, traveler complaints, and vendor contracts with L3 and Rapiscan, that were subsequently made available to the public. EPIC may appeal the district court's decision as to the release of the body scanner images. For more information see EPIC: EPIC v. DHS and EPIC: Body Scanners."

Via WSJ Law Blog, Obituary: Arizona Federal Judge, John Roll, 63

Follow up to Google Files Bid Protest Against Dept. of Interior Over Hosted Email and Collaboration Services, news that Google wins: Interior forbidden to award noncompetitive contract to Microsoft - "U.S. Federal Claims Court Judge Susan Braden ruled on Jan. 3 that negotiations for a sole source contract with Microsoft “commenced many months prior to July 15, 2010,” when department officials decided Microsoft's software was their standard for e-mail and computer operating systems. Meanwhile, Google had been trying to get considered for the work as well."

PEOPLE v. DIAZ, Criminal Appeal, Start Date: 09/09/2008. Opinion issued - Petition for review after the Court of Appeal affirmed a judgment of conviction of a criminal offense. This case presents the following issues: (1) Was defendant's cell phone an item "immediately associated with the person of the arrestee" within the meaning of United States v. Edwards (1974) 415 U.S. 800, and thus subject to search incident to his arrest? (2) Was the warrantless search of the cell phone an hour and a half after the arrest, while defendant was being interrogated, invalid under United States v. Chadwick (1977) 433 U.S. 1? The court ordered briefing deferred pending the decision of the United States Supreme Court in Arizona v. Gant, No. 07-542, cert. granted Feb. 25, 2008, __ U.S. __ [128 S.Ct. 1443, 170 L.Ed.2d 274], or further order of this court."

California Lawyer, January 2011 - Legally Speaking, The Originalist - Question: 'In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?

News release: "Alcatel-Lucent S.A. and three of its subsidiaries have agreed to pay a combined $92 million penalty to resolve a Foreign Corrupt Practices Act (FCPA) investigation into the worldwide sales practices of Alcatel S.A. prior to its 2006 merger with Lucent Technologies Inc., the Department of Justice announced. As part of the agreed resolution, the department today filed a criminal information in U.S. District Court for the Southern District of Florida charging Alcatel-Lucent with one count of violating the internal control provisions of the FCPA, and one count of violating the books and records provisions of the FCPA. The department and Alcatel-Lucent agreed to resolve the charges by entering into a deferred prosecution agreement for a term of three years. The department also filed a criminal information charging three subsidiaries: Alcatel-Lucent France S.A., formerly known as Alcatel CIT S.A.; Alcatel-Lucent Trade International A.G., formerly known as Alcatel Standard A.G.; and Alcatel Centroamerica S.A., formerly known as Alcatel de Costa Rica S.A. The three subsidiaries were each charged with conspiring to violate the anti-bribery, books and records, and internal controls provisions of the FCPA. Each of the three subsidiaries has agreed to plead guilty to the charges."

Via LLRX.com - Juror Behavior in the Information Age: Ken Strutin focuses on the impact of social media on jurors who increasingly try to stay connected to work and home while performing their civic duty, and the resulting impact of the power of individual jurors to virtualize a trial by going online. His article collects recent and notable examples of juror online misbehavior and highlights scholarship and practice resources concerning its implications for voir dire, trial management and the administration of justice.

"The United States Court of Appeals for the District of Columbia Circuit has scheduled oral argument in EPIC's case, No. 10-1157, against the Department of Homeland Security. The court set a March 10, 2011 date for the parties to present oral argument before the Court. EPIC filed suit against the Department of Homeland Security to suspend the body scanner program because it is "unlawful, invasive, and ineffective." In its opening brief, EPIC argued that the federal agency has violated the Administrative Procedures Act, the Privacy Act, the Religious Freedom Restoration Act, the Video Voyeurism Prevention Act, and the Fourth Amendment. For more information, see EPIC: EPIC v. DHS and EPIC: Whole Body Imaging Technology.

Managing Class Action Litigation: A Pocket Guide for Judges, Third Edition. Barbara J. Rothstein; Thomas E. Willging, 2010, 55 pages

US Courts: "A recently published study on federal death penalty cases offers updated findings on the cost, quality, and availability of defense representation. Among the findings: The median cost of a case in which the Attorney General authorized seeking the death penalty was nearly eight times greater than the cost of a case that was eligible for capital prosecution but in which the death penalty was not authorized. The report also shows that cases in which seeking the death penalty was authorized cost more than twice as much if they went to trial rather than being resolved through a plea agreement."

Report to the Chief Justice of the United States on the 2010 Conference on Civil Litigation - Submitted by the Judicial Conference Advisory Committee on Civil Rules and the Committee on Rules of Practice and Procedure, November 2010

Aging and Bankruptcy, Revisited, September 2010 issue of the American Bankruptcy Institute Journal

NYT: "After a wrenching seven-year battle, more than 10,000 workers who sued New York City over health damages they claimed after the 9/11 recovery efforts have approved a settlement, clearing the way for payouts totaling at least $625 million, lawyers said Friday. Their responses, delivered to a federal judge in Manhattan, ended months of wrangling over whether the city and its contractors were shortchanging the workers for the respiratory and other illnesses they developed after toiling in the smoldering ruins of the World Trade Center. The judge, Alvin K. Hellerstein of United States District Court, threw out a smaller settlement in March, arguing that the plaintiffs deserved more and lawyers were getting too big a cut. A 95 percent approval rate was required for the latest accord to take effect. The plaintiffs barely cleared the threshold by the Tuesday night deadline they were given: 95.1 percent of the 10,563 workers accepted the settlement’s terms, according to documents filed on Friday. In their lawsuits, the firefighters, police officers and other workers argued that the city had failed to provide adequate protective equipment and supervision as they retrieved victims’ remains at ground zero and cleared smoky debris...Still, many plaintiffs were pained by the vigorous legal defense mounted by the city as the lawsuits began flowing in 2003. Under the terms of the settlement, individual payments will range from $3,250 to $1.8 million or more for the worst injuries, lawyers estimated."

Immigration Courts Taking Longer to Reach Decisions

"The second edition of the Civil Litigation Management Manual, which was approved by the Judicial Conference of the United States in March 2010, seeks to help judges secure “the just, speedy, and inexpensive determination of every case.” The manual provides trial judges with a handbook, setting out an array of case-management techniques. They include early screening and steps for streamlining trials and final disposition. The manual also discusses a number of special topics, including pro se and high visibility cases."

Revisions to Foreign Intelligence Surveillance Court's Rules of Procedure, effective November 1, 2010. [Government Attic]

Manual on Recurring Problems in Criminal Trials, Sixth Edition, Edited by Tucker Carrington, Visiting Clinical Professor, Director, Mississippi Innocence Project, The University of Mississippi School of Law. Kris Markarian Legal Editor, Federal Judicial Center, 2010.

News release: "In settling a lawsuit filed by the New York Civil Liberties Union, the federal government [October 18, 2010] recognized the public’s right to take photographs and record videos in public spaces outside federal courthouses throughout the nation. The settlement comes after the NYCLU sued the federal government in April on behalf of a Libertarian activist who was unlawfully arrested by federal officers after exercising his First Amendment right to record digital video outside of a federal courthouse in Lower Manhattan."

Criminal Justice Debt: A Barrier to Reentry, By Alicia Bannon, Mitali Nagrecha, Rebekah Diller, 10/04/10

Preventable Error: A Report on Prosecutorial Misconduct in California 1997–2009, by Kathleen M. Ridolfi and Maurice Possley

United States Courts Electronic Public Access Program PACER Service Assessment Findings September 2010: "A year-long assessment of the Federal Judiciary’s electronic public access service, PACER, found a high level of satisfaction overall among users.The study, conducted by an independent consulting firm, was designed to gauge users’ satisfaction with the Public Access to Court Electronic Records service and to identify opportunities for new or expanded services...You can view a video that offers assessment highlights."

• Air Ambulance: Effects of Industry Changes on Services Are Unclear, GAO-10-907, September 30, 2010
• Department of Homeland Security: Progress Made in Implementation and Transformation of Management Functions, but More Work Remains, GAO-10-911T, September 30, 2010
• Military Personnel: Observations on the Use and Effects of the National Guard and Reservists Debt Relief Act of 2008, GAO-10-1014R, September 30, 2010
• Office of the Federal Detention Trustee's (OFDT) Cost Estimation Methods Reflect Features of Best Practices, but Processes Could be Enhanced, GAO-10-1037R, September 30, 2010
• U.S. Employment in the United Nations: State Department Needs to Enhance Reporting Requirements and Evaluate Its Efforts to Increase U.S. Representation, GAO-10-1028, September 30, 2010
• VA Health Care: Spending for and Provision of Prosthetic Items, GAO-10-935, September 30, 2010
• Federal Courthouse Construction: Better Planning, Oversight, and Courtroom Sharing Needed to Address Future Costs, GAO-10-1068T, September 29, 2010
• Maritime Security: Actions Needed to Assess and Update Plan and Enhance Collaboration among Partners Involved in Countering Piracy off the Horn of Africa, GAO-10-856, September 24, 2010
• U.S. Water and Sanitation Aid: Millions of Beneficiaries Reported in Developing Countries, but Department of State Needs to Strengthen Strategic Approach, GAO-10-957, September 24, 2010
• Army Corps of Engineers: Organizational Realignment Could Enhance Effectiveness, but Several Challenges Would Have to Be Overcome, GAO-10-819, September 01, 2010
• Tax Administration: Expanded Information Reporting Could Help IRS Address Compliance Challenges with Forgiven Mortgage Debt, GAO-10-997, August 31, 2010
• Tax Gap: IRS Has Modernized Its Business Nonfiler Program but Could Benefit from More Evaluation and Use of Third-Party Data, GAO-10-950, August 31, 2010

State Public Defender Programs, 2007, Donald J. Farole, Jr. Ph.D., Lynn Langton, September 16, 2010. NCJ 228229

News release: "September 24 marks the anniversary of a groundbreaking American invention – a federal court system separate from the individual state courts. The Judiciary Act of 1789 was one of the first pieces of legislation enacted by the newly formed U.S. Congress. The law created a dual court system – federal and state – that existed in no other country at the time. More than 220 years later, the system remains a vibrant protector of the rights and liberties guaranteed by the U.S. Constitution. The Constitution’s Article III was ratified in 1787, creating a Federal Judiciary that would feature the U.S. Supreme Court at its pinnacle. Left to Congress, however, was the job of fleshing out what the Constitution created. The Judiciary Act of 1789 established a three-tiered federal court system – the Supreme Court, three appellate courts, and 13 district courts. The Act also provided the courts and the justice system with needed staff. Today, the Federal Judiciary closely resembles the three-tiered system Congress fashioned in 1789. Today’s Supreme Court is comprised of the Chief Justice of the United States and eight associate justices. Congress also has created 13 courts of appeals and 94 district courts. The anniversary of the Judiciary Act of 1789 is a time to recognize the first Congress for creating a court system capable of growing to meet the nation’s needs."

News release: "The Judicial Conference of the United States today approved a pilot project to evaluate the effect of cameras in federal district courtrooms and the public release of digital video recordings of some civil proceedings. The pilot, which will be national in scope, will last up to three years. It will evaluate the effect of cameras in district court courtrooms, video recordings of proceedings, and publication of such video recordings. Details of the development and implementation of the pilot will be determined by the Conference’s Committee on Court Administration and Case Management (CACM).
Courts that participate in the pilot will, if necessary, amend their local rules (providing adequate public notice and opportunity to comment) to provide an exception for judges participating in the pilot project. Participation in the pilot will be at the trial judge’s discretion. Under the pilot, participating courts will record proceedings. Recordings by other entities or persons will not be allowed. Recording of members of a jury will not be permitted, and parties in a trial must consent to participating in the pilot."

• September 2010 Judicial Conference Members
  
• Strategic Plan for the Federal Judiciary
Permanent Link

"The Foreign Intelligence Surveillance Act (FISA) authorizes a special court, the Foreign Intelligence Surveillance Court (FISC), to undertake electronic surveillance in the United States for foreign intelligence information. The FISC is now seeking public comments concerning its procedures. Comments must received by Monday, October 4, 2010. EPIC previously submitted an amicus brief regarding FISA authority and national security. EPIC will be submitting comments to the FISC and endorse changes that improve accountability and transparency for FISA orders."

The Liberal Tradition of the Supreme Court Clerkship: Its Rise, Fall, and Reincarnation? William E. Nelson, Harvey Rishikof, I. Scott Messinger, and Michael Jo. 62 Vand.L.Rev. 1749

Follow up to previous postings on government implementation of whole body scanning technology at airports, via EPIC: "The United States Court of Appeals for the District of Columbia Circuit has set a briefing schedule for EPIC v. DHS, No. 10-1157, EPIC's challenge to the airport body scanner program. EPIC has alleged that that the Department of Homeland Security has violated three federal laws (the Administrative Procedures Act, the Privacy Act, and the Religious Freedom Restoration Act) and that the body scanner search itself is unconstitutional, given what the courts have said about the permissible scope of airport screening procedures. EPIC's initial brief will be due November 1, 2010. Subsequent briefs from DHS and EPIC will be due by December 15, 2010. In earlier open government litigation against DHS, EPIC obtained evidence that the devices are designed to store and record images."

"Very timely Justice Department data show that Immigration Judges are declining substantially fewer requests for asylum. Denial rates have reached the lowest level in the last quarter of a century according to a new analysis by the Transactional Records Access Clearinghouse (TRAC). Twenty five years ago, in FY 1986, almost nine out of ten (89%) of the asylum requests in the Immigration Courts were denied. While the annual rates have gone up and down during the ensuing years, only half (50%) of the requests were denied during the first nine months of FY 2010 — a record low. One factor contributing to the improved success of the asylum seekers is that a higher proportion of the total are represented by counsel. It must be noted, however, that the number of those seeking asylum in court proceedings has fallen. These and many other findings have emerged in the fifth annual report of TRAC's monitoring series on Asylum Decisions in the Immigration Courts. The reports are based upon hundreds of thousands of case-by-case asylum records obtained under the Freedom of Information Act from the Executive Office for Immigration Review (EOIR). The records cover asylum decisions for the last quarter century, and are current through June 21, 2010."

Follow up to previous postings on National Security Letters, this news release: "The FBI has partially lifted a gag it imposed on American Civil Liberties Union client Nicholas Merrill in 2004 that prevented him from disclosing to anyone that he received a national security letter (NSL) demanding private customer records. Merrill, who received the NSL as the president of an Internet service provider (ISP), can now reveal his identity and speak about his experience for the first time since receiving the NSL. The ACLU and New York Civil Liberties Union filed a lawsuit challenging the NSL statute and the gag order on behalf of Merrill (then called John Doe) in April 2004, which resulted in numerous court rulings finding the NSL statute unconstitutional. Merrill was the first person ever to challenge an NSL in court...NSLs are secret record demands the FBI issues to obtain access to personal customer records from ISPs, libraries, financial institutions and credit reporting agencies without court approval or even suspicion of wrongdoing. Because the FBI can gag NSL recipients to prohibit them from disclosing anything about the record demands they receive, the FBI's use and potential abuse of the NSL power has been shrouded in excessive secrecy. While the NSL served on Merrill stated that he was prohibited from telling anyone about it, he decided to challenge the demand in court because he believed that the FBI was ordering him to turn over constitutionally protected information about one of his clients. Because of the FBI-imposed gag, Merrill was prohibited from talking about the NSL or revealing his identity and role in the lawsuit until today, even though the FBI abandoned its demand for records from Merrill more than three years ago."

Report on Supervised Release of Federal Offenders - July 27, 2010

Your Cheat Sheet for Local Rule Motion Practice Part Two: Central District of California, by Wendy Schneider" You know the Federal Rules backwards and forwards, but its compliance with the local rules that really makes a civil litigator look like a pro to colleagues and clients, and leaves the opposition in the dust. In this ongoing LLRX series, the editorial team of SmartRules will give you the tools to navigate motion practice in these busy federal courts with ease and grace. We've outlined the key provisions and highlighted the pitfalls. Here's what you really need to know about motion practice in the Central District of California.

News release: "A recent change in the fee exemption policy of the Federal Judiciary’s Public Access to Court Electronic Records system means that 75 percent of PACER users won’t pay any fee this year. The policy-making Judicial Conference of the United States approved last March 16 an adjustment to the Electronic Public Access Fee Schedule so that users are not billed unless they accrue charges of more than $10 of PACER usage in a quarterly billing cycle. That adjustment was implemented almost immediately after the Conference action. Previously, users were not billed until their accounts totaled at least $10 in a one-year period. The result of the adjustment has the effect of quadrupling the amount of data available without charge. About 50 percent of all PACER users did not pay a fee in 2009, and preliminary indications are that the percentage will climb to 75 in 2010 under the new fee schedule."

From Solicitor General to Supreme Court Nominee: Responsibilities, History, and the Nomination of Elena Kagan, by Susan Navarro Smelcer, Analyst on the Federal Judiciary. Kenneth R. Thomas, Legislative Attorney, June 23, 2010

United States Courts: "A total of 97 vacancies exist among the 876 Article III judgeships in the Federal Judiciary. Eighteen of the 179 courts of appeals judgeships are vacant, as well as 79 of the 675 district court judgeships. Nominations made by the President and awaiting Senate action are pending for 12 of the 18 courts of appeals judgeships, and nominations for 29 of the 79 district court judgeships. An Article III judge is appointed to life tenure. Article III of the Constitution, focusing on the Judicial Branch of the federal government, states, “The judges, both of the supreme and inferior courts, shall hold their offices during good behavior.”

May it Please the Senate: An Empirical Analysis of the Senate Judiciary Committee Hearings of Supreme Court Nominees, 1939-2009, Lori A. Ringhand, University of Georgia School of Law and Paul M. Collins Jr., University of North Texas, June 25, 2010. UGA Legal Studies Research Paper No. 10-12

Follow up to previous postings on Supreme Court Nominee Elena Kagan, see the Report of the American Civil Liberties Union on the Nomination of Elena Kagan to be Associate Justice of the U.S. Supreme Court, June 21, 2010

Follow up to postings on the Gulf Coast oil spill, from the United States District Court for the Eastern District of Louisiana:

Follow up to postings on the Gulf Coast oil spill - United States District Court, Eastern District of Louisiana: "Over 30 cases relating to the Deepwater Horizon Explosion and Oil Spill have been assigned to Judge Carl Barbier, Section J. The Deepwater Horizon incident has led to claims for the death of 11 individuals, numerous claims for personal injury, and the release of millions of gallons of oil into the Gulf of Mexico, with resulting claims for environmental and economic damages. Currently, there are motions pending before the Multidistrict Litigation Panel to consolidate all cases related to the Deepwater Horizon incident into a single MDL case. There are also requests pending before the panel to have the litigation assigned to various districts across the country. Until the MDL Panel decides these motions, Judge Barbier will use this website as an interim measure to coordinate oil spill related cases pending in Section J. This website will also be used to post information that will answer many of the questions that have been frequently asked by counsel in these cases."

Follow up to previous posting sentencing guidelines, "U.S. Sentencing Commission has published the results of the first-ever survey of federal trial judges to elicit their views about federal sentencing under the advisory guidelines system in effect since 2005. The survey, among many other findings, indicates that 62 percent of the responding judges believe that mandatory minimum sentences for various federal crimes are too high. The survey, conducted from January through March 2010, drew responses from 639 of the 942 judges to whom it was sent, a 67.8 percent response rate. Based on an analysis, the 639 judges who responded sentenced 116,183 of the 146,511 individual federal criminal offenders sentenced in fiscal years 2008 and 2009 – 79 percent of the offenders sentenced in that two-year span."

EPIC: "The Supreme Court has issued a ruling in City of Ontario v. Quon, a case concerning the reasonablenees of a search of a public employee's pager. EPIC filed a "friend of the court" brief in the case, arguing that data minimization practices should be followed for electronic searches, and that the search, which uncovered personal texts unrelated to the purpose of the search, was therefore unreasonable. EPIC urged the Supreme Court to apply the approach set out in Comprehensive Drug Testing v. United States, which allows a government agency to undertake appropriate searches without unnecessarily violating privacy interests. The Court ruled that the search was reasonable, reversing the Ninth Circuit's decision that such a search be conducted through the least intrusive means possible. For more information, see EPIC: City of Ontario v. Quon."

News release: "On Friday, June 11, 2010, the Clinton Library [made] available an additional 41,759 pages of materials relating to Supreme Court nominee Elena Kagan. The records [are] posted on their web site: www.clintonlibrary.gov. The opening includes materials primarily related to Kagan’s tenure in the White House Counsel's Office. Other files concern her nomination to the DC Circuit Court, White House Office of Records Management Subject Files concerning her work with both DPC and the White House Counsel’s Office, and a few miscellaneous folders identified as relating to Kagan."

Text of Justice David Souter’s speech during Harvard's 359th Commencement, via Harvard Gazette. [Dan MacMeekin]

News release: "The William Clinton Presidential Library will open records relating to U.S. Supreme Court nominee Elena Kagan’s tenure at the White House Domestic Policy Council and the White House Counsel’s Office. The release of papers from the approximately 160,000 pages of material will be made available on the Clinton Library web site in batches as soon as the records are processed. Release dates and times will be posted on the National Archives Twitter site [http://twitter.com/archivesnews] and the National Archives home page.

News release: "The Federal Judiciary’s website, www.uscourts.gov, today unveils a host of enhancements. The site has been redesigned to make it more attractive, accessible, and useful to its diverse audience of users. The improvements further the website’s mission of increasing public interest, awareness, and understanding of the federal court system and its functions, and to serve as a source for disseminating Federal Judiciary information to the public. The website is a primary source of information on the structure, function, and operations of the federal courts. It plays an important role in how the Judiciary communicates to the public, with useful and timely information for students, news media, attorneys, academics, government officials, associations, and others – both in the United States and worldwide."

News release: "Bankruptcy filings for the 12-month period ending March 31, 2010, rose 27 percent when compared to bankruptcy filings for the 12-month period ending March 31, 2009, according to statistics released today by the Administrative Office of the U.S. Courts. March 2010 bankruptcy filings totaled 1,531,997, compared to the 1,202,395 bankruptcy cases filed in the 12-month period ending March 31, 2009.
This is the highest number of total bankruptcy filings since the 12-month period ending March 31, 2006. A significant decline in bankruptcy filings occurred in October 2006, when many of the provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) took effect."

Elena Kagan Nominated to the Supreme Court: "On April 9, 2010 Justice John Paul Stevens announced that he would retire after nearly 35 years on the bench of the U.S. Supreme Court. President Obama announced the nomination of Solicitor General Elena Kagan to replace Stevens on May 10, 2010. This is President Obama's second nomination to the nation's highest court, following his selection of Justice Sonia Sotomayor in May 2009. Notably the first female Solicitor General and first female dean of Harvard Law School, if Kagan is confirmed, she will also be the fourth woman to serve on the Court. To serve congressional and public requests for resources pertaining to this historic nomination, the Law Library of Congress has developed a web presentation on Kagan on its Supreme Court Nominations site. Visit our bibliography to find out more about the new Supreme Court nominee." [Emily Carr, Legal Reference Specialist, Law Library of Congress]

News release: "A total of 2,376 federal and state applications for orders authorizing the interception of wire, oral or electronic communications, known as wiretaps, was reported in 2009. The number of applications for orders by federal authorities was 663; the number of applications reported by state prosecuting officials was 1,713. No applications were denied. The Omnibus Crime Control and Safe Streets Act of 1968 requires the Administrative Office of the U.S. Courts to report to Congress the number and nature of federal and state applications for wiretap orders. The 2009 Wiretap Report covers intercepts concluded between January 1, 2009 and December 31, 2009."

News release: "Much attention has been paid by the media and others to the recent rapid rise in consumer bankruptcies. But less attention has been paid to the even faster rise in business bankruptcies. Recently, John Golmant, a statistician in the Statistics Division of the Administrative Office, examined the numbers behind the increase. In 2009, a total of 1,402,816 bankruptcy petitions were filed in the federal courts, an increase of 35 percent from the 1,042,806 filed in 2008. The 2009 total marks the greatest number of bankruptcy filings since 2005, the year the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) was passed and implemented."

Justice Stevens Invented the Internet - With the announcement that Justice John Paul Stevens will resign from the Supreme Court at the end of this term, Jonathan Band and Matt Schruers focus on one of his opinions that has had a direct daily impact on virtually all Americans: the majority opinion in Sony v. Universal, decided by the Supreme Court in 1984. This decision is the legal foundation of the Digital Age.

News release: "The Electronic Frontier Foundation (EFF) along with Google and numerous other public interest organizations and Internet industry associations joined with Yahoo! in asking a federal court Tuesday to block a government attempt to access the contents of a Yahoo! email account without a search warrant based on probable cause. The Department of Justice is seeking the emails as part of a case that is under seal, and the account holder has apparently not been notified of the request. Government investigators maintain that because the Yahoo! email has been accessed by the user, it is no longer in "electronic storage" under the Stored Communications Act (SCA) and therefore does not require a warrant, even though that same legal theory has been flatly rejected by the one Circuit Court to address it. Yahoo! is challenging the government request before a federal magistrate judge in Denver, arguing that the SCA and Fourth Amendment require the government to get a search warrant before compelling Yahoo! to disclose the email. In an amicus brief filed in support of Yahoo! Tuesday, EFF says that the company is simply following the law and protecting the constitutional privacy rights of its customers."

News release: "Associate Justice John Paul Stevens has today sent the attached letter to the White House, notifying President Barack Obama of his retirement from the Supreme Court, effective one day after the Court rises for the summer recess this year. Justice Stevens has served on the Supreme Court for 34 years. He is 89 years old. Justice Stevens was nominated by President Gerald Ford and took his seat on December 19, 1975."

EFF: "In a ruling that imposes important limits on the FCC's authority to regulate the Internet, the D.C. Circuit Court of Appeals today overturned the FCC ruling against Comcast for interfering with the BitTorrent traffic of its subscribers. The court found that the Commission had overstepped the limits of its "ancillary authority" when it disciplined Comcast for its clandestine blocking behavior. The ruling is not likely to make much difference to Comcast subscribers—Comcast had already agreed to cease its BitTorrent interdiction before the FCC's ruling was issued. Instead, the court's ruling is important because it represents a blow to FCC Chairman Genachowski's proposed net neutrality regulations, which are premised on the same theory of "ancillary jurisdiction" that the FCC used against Comcast and that the court rejected today."

EPIC: "The New Jersey Supreme Court ruled in favor of a female employee whose employer read emails that she sent while using Yahoo Mail on a company-owned laptop. The employee, Marina Stengart, had exchanged emails with her attorney regarding a possible discrimination lawsuit against the employer. The employer then pulled the emails off of the laptop's hard drive and used them to prepare a defense to the discrimination suit. The New Jersey Supreme Court found that "Under the circumstances, Stengart could reasonably expect that e-mail communications with her lawyer through her personal, password-protected, web-based e-mail account would remain private, and that sending and receiving them using a company laptop did not eliminate the attorney-client privilege that protected them." The Supreme Court of the United States is set to consider employee privacy in City of Ontario v. Quon, in which EPIC submitted a "friend of the court brief."

"Welcome to the Supreme Court's new Website, which not only has a new look, but also incorporates new features, including:

• recent Court decisions accessible from the homepage
  
• docket files dating back to 2000
  
• an interactive Court calendar
  
• a new case citation finder
  
• enhanced search and navigation capabilities

News release: "The Judicial Conference of the United States approved key steps to improve public access to federal courts by increasing the availability of court opinions and expanding the services and reducing the costs for many users of the Public Access to Electronic Court Records (PACER) system. At its biannual meeting in Washington, D.C., the Conference voted to:

• Allow courts, at the discretion of the presiding judge, to make digital audio recordings of court hearings available online to the public through PACER, for $2.40 per audio file.
  
• Adjust the Electronic Public Access fee schedule so that users are not billed unless they accrue charges of more than $10 of PACER usage in a quarterly billing cycle, in effect quadrupling the amount of data available without charge. Currently, users are not billed until their accounts total at least $10 in a one-year period.
  
• Approve a pilot in up to 12 courts to publish federal district and bankruptcy court opinions via the Government Printing Office’s Federal Digital System (FDsys) so members of the public can more easily search across opinions and across courts."

Bloomberg: "The Federal Reserve Board must disclose documents identifying financial firms that might have collapsed without the largest U.S. government bailout ever, a federal appeals court said. The U.S. Court of Appeals in Manhattan ruled today that the Fed must release records of the unprecedented $2 trillion U.S. loan program launched primarily after the 2008 collapse of Lehman Brothers Holdings Inc. The ruling upholds a decision of a lower-court judge, who in August ordered that the information be released."

"CourtWEB provides information on selected recent opinions of those judges of the United States Courts who elect to make information available on this site. When an opinion is posted to CourtWEB by chambers, the description that appears will typically include the caption, case number, terms relevant to your search, relevancy score, date, judge's name, and a brief summary of the opinion."

News release: "Wachovia Bank, N.A. (“Wachovia”), one of the largest banks in the United States, has entered into a deferred prosecution agreement with the U.S. Attorney’s Office in the Southern District of Florida and the Asset Forfeiture and Money Laundering Section of the Criminal Division of the Department of Justice to resolve charges that it willfully failed to establish an anti-money laundering program. Today’s agreement is the result of an investigation into Wachovia’s transactions with Mexican currency exchange houses, commonly known as “casas de cambio” (“CDCs”), announced Jeffrey H. Sloman, United States Attorney for the Southern District of Florida, Lanny A. Breuer, Assistant Attorney General for the Criminal Division of the Department of Justice, Mark R. Trouville, Special Agent in Charge, Drug Enforcement Administration (DEA), Miami Field Division, Daniel W. Auer, Special Agent in Charge, Internal Revenue Service, Criminal Investigation Division (“IRS-CID”), John C. Dugan, Comptroller of the Currency, Office of the Comptroller of the Currency (OCC), and James H. Freis, Jr., Director, Financial Crimes Enforcement Network (FinCEN). The agreement also resolves Wachovia’s admitted failure to identify, detect, and report suspicious transactions in third-party payment processor accounts."

• Information/General Allegations
  
• Deferred Prosecution Agreement
  
• Statement

LLRX.com: DNA Identification Evidence in Criminal Prosecutions

U.S. Courts news release: "Bankruptcy filings in the federal courts rose 31.9 percent in calendar year 2009, according to data released today by the Administrative Office of the U.S. Courts. The number of bankruptcies filed in the twelve-month period ending December 31, 2009, totaled 1,473,675, up from 1,117,641 bankruptcies filed in CY 2008."

American Bar Association: Representing Juvenile Status Offenders

Follow on to SEC Charges Bank of America for Failing to Disclose Merrill Lynch Bonus Payments, see the Opinion and Order in SEC v. Bank of America, Issued by the District Court for the Southern District of New York, February 22, 2010.

Follow up to postings on Google Book Search resources and related litigation, the latest news from The Laboratorium - GBS: Fairness Hearing Report [held February 18, 2010, U.s. District Court, Southern District of New York], with Part I here and Part II here. These report cover the arguments of settlement supporters and opponents; and the arguments made by the Department of Justice and the parties, along with a few brief comments of Law Professor James Grimmelmann.

"In a new White Paper, the national nonprofit consumer group Center for Justice & Democracy explores how the weakening of investors’ and borrowers’ legal rights since the 1990s has compounded deregulation and lax regulatory enforcement led to the recent economic collapse. In Legal Abandon: How Limiting Lawsuits Led To The Financial Collapse And What To Do About It, CJ&D shows how the legal rights of defrauded shareholders have been greatly restricted by both Congress and the U.S. Supreme Court, and the rights of subprime mortgage borrowers have been extremely limited, as well. Said co-author Amy Widman, “Two laws are particularly problematic: the 1995 Private Securities Litigation Reform Act (PSLRA) and the Securities Litigation Uniform Standards Act of 1998 (SLUSA), which greatly restrict investor fraud cases. In addition, two Supreme Court cases, Central Bank of Denver, N.A. v. Interstate Bank of Denver, N.A. (1994) and Stoneridge Investment Partners v. Scientific-Atlanta, Inc. et al. (2007), both significantly limited the liability of those who aid in the commission of a securities fraud."

Follow up to previous postings on Google Book Search, this annotated public interest resource: "The Public Index is a project of the Public-Interest Book Search Initiative and the Institute for Information Law and Policy at New York Law School. We are a group of professors, students, and volunteers who believe that the Google Book Search lawsuit and settlement deserve a full, careful, and thoughtful public discussion. The Public Index is a site for people from all points of view to learn from each other about the settlement and join together to make their voices heard in the public debate."

FY 2009 Federal Prosecutions Sharply Higher - Surge Driven by Steep Jump in Immigration Filings: "The latest case-by-case data from the Justice Department show that in November 2009 (the second month of fiscal year 2010) the government reported 11,816 new prosecutions. The immigration category continues to dominate the DOJ's caseload, accounting for 53% of all new cases filed in November in U.S. Federal Court. The second largest category was drugs, accounting for 35% of new prosecutions."

News release: "U.S. Senator Charles E. Schumer (D-NY), Chairman of the Senate Rules Committee, and U.S. Rep. Chris Van Hollen (D-MD) on Thursday announced new legislation to mitigate the negative impacts of the Supreme Court’s decision that allowed unlimited corporate spending on elections. The Court, in its ruling in the Citizens United case last month, overturned a decades-old law banning political expenditures by corporate interests. Schumer and Van Hollen’s legislation would partly restore those limits – by barring foreign corporations, government contractors and companies that have received government assistance from making political expenditures – and also impose new disclosure and disclaimer requirements." [Outline of legislation is included in this release.]

News release: "Senator Patrick Leahy (D-Vt.) and Senator Dianne Feinstein (D-Calif.) on Thursday sent a letter to President Barack Obama endorsing the longstanding use of federal criminal courts to prosecute terrorists. Leahy and Feinstein chair the Senate Judiciary Committee and Select Committee on Intelligence, respectively. Leahy and Feinstein have supported the administration’s plans to try terrorists in federal court, which have a proven track record over many years of successfully trying terrorism-related cases."

3rd Circuit to Mull Privacy of Cell Phone Data, Shannon P. Duffy: "In a case that could prove to be one of the most important privacy rights battles of the modern era, the 3rd U.S. Circuit Court of Appeals will hear argument this week on the proper legal standard to apply when prosecutors demand cell phone location data. The data, which are recorded about once every seven seconds whenever a cell phone is turned on, effectively track the whereabouts and the comings and goings of every cell phone user. Justice Department lawyers argue that, by statute, they need only show "reasonable grounds" to believe that such records are "relevant and material to an ongoing criminal investigation." But a federal magistrate judge in Pittsburgh strongly disagreed in February 2008, issuing a 52-page opinion that said the prosecutors must meet the "probable cause" standard."

Securities and Exchange Commission Litigation Release No. 21371 / January 11, 2010 - Securities and Exchange Commission v. Bank of America Corporation, Civil Action No. 09-6829 (JSR) (S.D.N.Y.): "The Securities and Exchange Commission today announced that it seeks to charge Bank of America with failing to disclose extraordinary financial losses at Merrill Lynch prior to a shareholder vote to approve a merger between the two companies. The SEC has asked the U.S. District Court for the Southern District of New York for permission to amend its pending complaint against Bank of America to include the new charges. The agency earlier charged the bank with misleading investors about billions of dollars in bonuses that were being paid to Merrill executives. That complaint was amended in October to add a charge for Bank of America's failure to comply with certain affirmative disclosure obligations under the federal proxy rules."

"The Federal Judicial Center has posted a monograph providing an introduction to, and overview of, immigration law, with a focus on issues that arise in litigation."

FindLaw: "Rejecting a bid by convicted al Qaeda conspirator Zacarias Moussaoui to overturn his guilty plea, a federal appeals court affirmed the French citizen's terror conspiracy charges stemming from his role as an admitted terror camp trainee, member of the terrorist organization, and acknowledged flight-school his 'intent to obtain pilot training to further "al Qaeda's plan to use plans to kill Americans."

Report of the Council to the Membership of The American Law Institute on the Matter of the Death Penalty: "On October 23, 2009, the ALI Council voted overwhelmingly, with some abstentions, to accept the resolution of the capital punishment matter as approved by the Institute’s membership at the 2009 Annual Meeting in May. The resolution adopted at the Annual Meeting and now accepted by the Council reads as follows:

For reasons stated in Part V of the Council’s report to the membership, the Institute withdraws Section 210.6 of the Model Penal Code in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.

2009 Year-End Report on the Federal Judiciary: "Chief Justice John Roberts issued his 2009 year-end report, stating that "courts are operating soundly, and the nation's dedicated federal judges are conscientiously discharging their duties...In 2009, a total of 1,402,816 bankruptcy petitions were filed in the U.S. courts, an increase of 35% over the 1,042,806 filed in 2008. The 2009 total represents the greatest number of bankruptcy filings since 2005, when many debtors rushed to file petitions before October 17, 2005, the date on which the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) took effect."

"A new report by the Federal Judicial Center offers an analysis of all cases that were sealed in federal district, bankruptcy and appellate courts in 2006, and describes why and how they were sealed."

Examining the Work of State Courts: An Analysis of 2007 State Court Caseloads. A joint project of the Conference of State Court Administrators, the Bureau of Justice Statistics, and the National Center for State Courts. 2009
Examining the Work of State Courts is the authoritative analysis of the best available state court case filing and disposition data. Approximately ninety-five percent of all legal cases initiated in the United States are filed in the state courts. Whether the reader’s objective is to assess the current legal landscape, to improve the management of a court or a state court system, to develop public policy, or to gain a better understanding of the work of our third branch of government, this publication provides the independent interpretation of reliable data that will speak to the reader’s need. In fact, without the benefit of this foundational data and its expert analysis, state court leaders and managers, policy makers, and the media are too often left with little more than random anecdote and unsupported opinion as the basis for their work."

The Liberal Tradition of the Supreme Court Clerkship: Its Rise, Fall, and Reincarnation? William E. Nelson, Harvey Rishikof, I. Scott Messinger, Michael Jo | 62 Vand. L. Rev. 1749 (2009)

Surge Driven by Steep Jump in Immigration Filings: "As a result of an unusual flood of immigration prosecutions, the total number of federal criminal filings reached an all time high in the just ended fiscal year, according to timely Justice Department data analyzed by the Transactional Records Access Clearinghouse (TRAC). The latest data show that the number of all kinds of federal criminal prosecutions peaked at 169,612 cases in FY 2009, up nearly 9 percent from the previous year's total of 155,694 and 42 percent from five years ago when prosecutions came to only 119,492. The comparisons of the number of defendants charged with offenses are based on case-by-case information obtained by TRAC under the Freedom of Information Act from the Executive Office for United States Attorneys."

• Biosurveillance: Developing a Collaboration Strategy Is Essential to Fostering Interagency Data and Resource Sharing, GAO-10-171, December 18, 2009
• Department of Veterans Affairs' Implementation of Information Security Education Assistance Program, GAO-10-170R, December 18, 2009
• DOD Civilian Personnel: Intelligence Personnel System Incorporates Safeguards, but Opportunities Exist for Improvement, GAO-10-134, December 17, 2009
• Overseas Contingency Operations: Funding and Cost Reporting for the Department of Defense, GAO-10-288R, December 18, 2009
• Softwood Lumber Act of 2008: Customs and Border Protection Established Required Procedures, but Agencies Report Little Benefit from New Requirements, GAO-10-220, December 18, 2009
• Juvenile Justice: DOJ Is Enhancing Information on Effective Programs, but Could Better Assess the Utility of This Information, GAO-10-125, December 17, 2009
• UN Office for Project Services: Management Reforms Proceeding but Effectiveness Not Assessed, and USAID's Oversight of Grants Has Weaknesses, GAO-10-168, November 19, 2009

"The Death Penalty Information Center released the The Death Penalty in 2009: Year End Report on December 18, noting that the country is expected to finish 2009 with the fewest death sentences since the U.S. Supreme Court reinstated the death penalty in 1976. Eleven states considered abolishing the death penalty this year, a significant increase in legislative activity from previous years, as the high costs and lack of measurable benefits associated with this punishment troubled lawmakers."

News release: "While the Supreme Court ruling in Boumediene v. Bush established definitively the right of habeas corpus for detainees at Guantanamo, it left many important questions unresolved about how these habeas petitions would be adjudicated. As a consequence, the District of Columbia District Court and Court of Appeals have been charged with deciding such issues as: the substantive scope of the executive’s detention authority; the reach of the suspension clause to Bagram; whether conditions of confinement are open to habeas challenge; standards for admitting hearsay into evidence; and procedures for handling classified intelligence reports. In an effort to document this habeas litigation the American Bar Association’s Standing Committee on Law and National Security created a searchable database, containing every Guantanamo and Bagram detainee habeas petition brought before the D.C. courts since the Boumediene ruling."

News release: "Bankruptcy cases filed in federal courts for fiscal year 2009 totaled 1,402,816, up 34.5 percent over the 1,042,993 filings reported for the 12-month period ending September 30, 2008, according to statistics released today by the Administrative Office of the U.S. Courts. The federal Judiciary’s fiscal year is the 12-month period ending September 30. The bankruptcies reported today are for October 1, 2008 through September 30, 2009."

"The Court entered its Findings of Fact and Conclusion of law in the Robinson matter. The Court ruled that the failure of the United States Army Corps of Engineers to maintain and operate the MRGO properly was a substantial cause for the failure of the Reach 2 Levee. It found that the Corps was not negligent with respect to its failure to construct a surge protection barrier at the "funnel" where Reach 2 merges into Reach 1 and the GIWW and thus was not liable for the flooding of New Orleans East. It also found that the Corps was not entitled to immunity under 702c of the Flood Control Act of 1928 and is not entitled to the protection of the due care, discretionary function, or misrepresentation exceptions under the Federal Torts Claim Act. As a result of these findings, it found that plaintiffs in the St. Bernard Polder were entitled to damages as set forth with more precision in the opinion. (Doc. 19415, Appendix)"

"Welcome to the new Media Alerts on Federal Courts of Appeals Website of the ABA Standing Committee on Federal Judicial Improvements. This website is designed to provide reporters, lawyers, educators, and the public with prompt, accurate, unbiased information about newsworthy and legally significant cases pending in and decided by the Federal Courts of Appeals. Our goal is to assist the media’s efforts to provide timely and extensive reporting about federal court decisions. Use this website to find short summaries of recent opinions of public interest and noteworthy cases pending oral argument."

"The 2009 Guidelines Manual (effective November 1, 2009) is available in HTML and Adobe .PDF formats (large file and broken into chapters), which can be viewed, downloaded or printed via the website."

"The Institute for Workplace Studies (IWS) in conjunction with the Cornell Law School is committed to helping the Rwanda Tribunal garner more attention world-wide. The lessons and legacy of ground-breaking legal matters related to the unspeakable events in Rwanda should not be forgotten. Humans, whether from rich or poor countries, must remain vigilant in curbing the motivations that lead individuals and groups to violent hatred and barbaric acts against a class of people. Consequently, items about this tribunal, which will end shortly after 2010, will appear from time to time on this news service. Last month, the IWS Colloquium Series, with cosponsorship of the Cornell Law School (represented by Prof. Claire Germain) hosted Sir Dennis Byron, President of the International Criminal Tribunal for Rwanda (ICTR), who spoke about the Role of the Courts in Protecting and Preserving Human Rights. It was a fascinating evening that touched on both legal and institutional issues, never flinching from some of the moral and social issues. Of particular note are the ground-breaking precedents of the ICTR in regard to sexual violence and the limits of freedom of speech. [Stuart Basefsky]

News release: "The success of the highly regarded Supreme Court Database has been unparalleled. Information from the database is cited in the majority of peer-reviewed articles about the workings of the court. A team including Northwestern University School of Law's Lee Epstein, a specialist in the politics of the Supreme Court, has expanded the database -- with funding from the National Science Foundation (NSF) and the latest in today's technology -- to make the resource easily accessible to a wider audience. Now, a streamlined interface allows anyone to go online and pull up cases with ease...By modernizing the Supreme Court Database, Epstein and her team are expanding Michigan State University Law Professor Harold Spaeth's original invention and using technology that wasn't available at its inception. Currently, cases from 1953 to 2008 are available. New funding from NSF means the database can be expanded to include information dating back to the court's first decision in 1792. The Supreme Court Database began with Spaeth's work in the late 1980s. Spaeth was able to collect decades of data on the court and put it together in a comprehensive database available to the public."

"The U.S. Sentencing Commission has issued a report, The History of Child Pornography Guidelines, as a first step in its review of the punishment prescribed for the sexual exploitation of children...The Commission has sought to implement congressional intent in the area of child pornography offenses in a manner consistent with the SRA and subsequent legislation. As discussed in this paper, in amending the child pornography guidelines over the years, the Commission has reviewed sentencing data, considered public comment on proposed amendments, conducted public hearings on proposed amendments, studied relevant literature, and considered pertinent legislative history."

Tort Bench and Jury Trials in State Courts, 2005: "Discusses tort cases concluded by a bench or jury trial in a national sample of jurisdictions in 2005. Topics include the types of tort cases that proceed to trial, the differences between tort cases adjudicated by judges and juries, and the types of plaintiffs and defendants represented in tort trials. The report also covers plaintiff win rates, punitive damages, and the final award amounts generated in tort trial litigation. Lastly, trends are examined in tort trial litigation in the nation’s 75 most populous counties, based on comparable data in 1996, 2001, and 2005."

"One of the federal judiciary's major statistical compilations, Judicial Facts and Figures, recently was updated to include caseload statistics and judgeship totals for fiscal year 2008."

Juvenile Justice: Technical Assistance and Better Defined Evaluation Plans Will Help Girls' Delinquency Programs. GAO-10-133T, October 20, 2009: "...from 1995 through 2005, delinquency caseloads for girls in juvenile justice courts nationwide increased 15 percent while boys’ caseloads decreased by 12 percent.1 More recently, in 2007, 29 percent of juvenile arrests—about 641,000 arrests—involved girls, who accounted for 17 percent of juvenile violent crime arrests and 35 percent of juvenile property crime arrests.2 Further, research on girls has highlighted that delinquent girls have higher rates of mental health problems than delinquent boys, receive fewer special services, and are more likely to abandon treatment programs."

Follow up to October 10, 2009 posting, Mandatory Flu Shots for New York Health Care Workers, the New York Times today reported Thomas J. McNamara, an acting justice of the State Supreme Court in Albany, issued a temporary order halting the enforcement of mandatory flu vaccines for health care workers.

• Contingency Contracting: DOD, State, and USAID Continue to Face Challenges in Tracking Contractor Personnel and Contracts in Iraq and Afghanistan, GAO-10-1, October 01, 2009
• Emergency Management: Preliminary Observations on FEMA's Community Preparedness Programs Related to the National Preparedness System, GAO-10-105T, October 01, 2009
• Personnel Security Clearances: An Outcome-Focused Strategy and Comprehensive Reporting of Timeliness and Quality Would Provide Greater Visibility over the Clearance Process, GAO-10-117T, October 01, 2009
• Aviation Security: A National Strategy and Other Actions Would Strengthen TSA's Efforts to Secure Commercial Airport Perimeters and Access Controls, GAO-09-399, September 30, 2009
• Federal Judgeships: The General Accuracy of District and Appellate Judgeship Case-Related Workload Measures, GAO-09-1050T, September 30, 2009
• Federal Student Loans: Audits and Reviews of the Federal Family Education Loan and Federal Direct Loan Programs, GAO-09-992R, September 30, 2009
• Continuing Resolutions: Uncertainty Limited Management Options and Increased Workload in Selected Agencies, GAO-09-879, September 24, 2009
• U.S. Embargo on Cuba: Recent Regulatory Changes and Potential Presidential or Congressional Actions, GAO-09-951R, September 17, 2009
• Equal Employment Opportunity: DHS Has Opportunities to Better Identify and Address Barriers to EEO in Its Workforce, GAO-09-639, August 31, 2009

Contract Bench and Jury Trials in State Courts, 2005: "Presents findings on contract cases disposed of by a bench or jury trial in a nationally representative sample of jurisdictions in 2005. Topics in the report include the types of cases that proceed to trial, differences between the types of cases decided by judges or juries, types of plaintiffs and defendants represented in civil trials, plaintiff win rates, damage awards, and post-trial activity. Information is also presented on contract trial litigation in the nation’s 75 most populous counties from 1996 to 2005. See also Civil Bench and Jury Trials in State Courts, 2005."

"In a case brought by Center for Food Safety and Earthjustice representing a coalition of farmers and consumers, a Federal Court ruled yesterday that the Bush USDA’s approval of genetically engineered (GE) “RoundUp Ready” sugar beets [note: sugar beets produce 30 percent of the world's sugar] was unlawful. The Court ordered the USDA to conduct a rigorous assessment of the environmental and economic impacts of the crop on farmers and the environment. The federal district court for the Northern District of California ruled that the U. S. Department of Agriculture’s Animal and Plant Health Inspection Service (“APHIS”) violated the National Environmental Policy Act (“NEPA”) when it failed to prepare an Environmental Impact Statement (“EIS”) before deregulating sugar beets that have been genetically engineered (“GE”) to be resistant to glyphosate herbicide, marketed by Monsanto as Roundup...Sugar beet seed is grown primarily in Oregon’s Willamette Valley, which is also an important seed growing area for crops closely related to sugar beets, such as organic chard and table beets. GE sugar beets are wind pollinated and will inevitably cross-pollinate the related crops being grown in the same area. Such biological contamination would be devastating to organic farmers, who face debilitating market losses if their crops are contaminated by a GE variety."

Follow up to previous postings on what is becoming the saga of the Google Book Settlement, the following articles, legal documents and commentary today:

• New York Times: Google Working to Revise Digital Books Settlement
  
• Author's Guild: "Beating their midnight deadline by about 90 minutes, the Justice Department on Friday filed a brief calling for modifications to the Authors Guild's class-action settlement with Google over Google's scanning of millions of library books without permission. The Justice Department said the parties to the settlement should modify the settlement to address certain copyright, antitrust, and class-action concerns. While it opposes the settlement agreement as it now stands, the Justice Department "strongly supports" the settlement's goals of creating new markets for out-of-print works and committed itself to working constructively with the parties on a revised settlement.."
  
• Google's Book Search Deal: 5 Pros and 5 Cons, JR Raphael, PC World
  
• ars technica - DOJ: Google book settlement needs major rewrite

Follow up to previous posting on Google book search, this news release today: Justice Department Submits Views on Proposed Google Book Search Settlement: "The Department of Justice today advised the U.S. District Court for the Southern District of New York that while it should not accept the class action settlement in The Authors Guild Inc. et al. v. Google Inc. as proposed due to concerns of the United States regarding class action, copyright and antitrust law, the parties should be encouraged to continue their productive discussions to address those concerns. In its statement of interest filed with the court, the Department stated: "Given the parties’ express commitment to ongoing discussions to address concerns already raised and the possibility that such discussions could lead to a settlement agreement that could legally be approved by the Court, the public interest would best be served by direction from the Court encouraging the continuation of those discussions between the parties and, if the Court so chooses, by some direction as to those aspects of the Proposed Settlement that need to be improved. Because a properly structured settlement agreement in this case offers the potential for important societal benefits, the United States does not want the opportunity or momentum to be lost."

Gallup: "As the U.S. Supreme Court convenes Wednesday with recently sworn-in Justice Sonia Sotomayor on the bench, Gallup finds Americans broadly upbeat about the performance of the high court. Sixty-one percent of Americans approve and 28% disapprove of the job the Supreme Court is doing -- among the most positive ratings the court has received in the past decade."

PACER Spending Survey: Stanford Law School deputy library director Erika Wayne describes an open source document access project focused on improving PACER (Public Access to Court Electronic Records), sponsored by a small group of research savvy and customer service oriented group of law librarians.

Electronic Public Access Fees and the United States Federal Courts’ Budget: An Overview Stephen Schultze, Fellow, Berkman Center for Internet & Society at Harvard.

"CDT filed a "friend of the court" brief in the Southern District of New York [September 4, 2009] requesting that key privacy requirements be included in the Court's approval of the class-action settlement that would dramatically expand Google Book Search. CDT previously released a report in July analyzing the privacy implications of this settlement and is urging the judge to guarantee strong privacy safeguards for the exciting new services Google will be able to offer. The brief asks that the court approve the proposed settlement of the copyright infringement lawsuit between Google and authors and publishers, but to retain oversight in order to monitor implementation of a privacy plan."

• CDT's Amicus Brief in Google Books settlement
  
• CDT's Report on Google Book Service
  
• Related postings on Google Book Search
  
• New York Times: Google Book Project Coolly Received in Europe
  
• WSJ: Google Curtails Europe Book Plan

AL-KIDD v. ASHCROFT, No. 06-36059 D.C. No. CV-05-00093-OPINION

Reporters Committee for Freedom of the Press:" The string of FOIA lawsuits for release of records of the government's emergency lending programs finally saw its first victory Monday. The Federal Reserve Board must release to Bloomberg News records identifying the financial firms it loaned bailout funds to as well as the assets or amounts put up as collateral, the news agency reported. Chief Judge Loretta Preska in Manhattan federal court issued the first ruling requiring disclosure in a handful of suits in New York federal court brought separately by Bloomberg, Fox News and the New York Times. Bloomberg reported that she rejected the argument that the records were exempt from release under FOIA because they might harm the competitive advantage of the borrowers."

The Third Branch: "The Judicial Conference has issued a series of “suggested practices” to assist courts in the use of Internet materials in opinions. The recommendations follow a pilot project conducted by circuit librarians who captured and preserved webpages cited in opinions over a six-month period...The guidelines suggest that, if a webpage is cited, chambers staff preserve the citation by downloading a copy of the site’s page and filing it as an attachment to the judicial opinion in the Judiciary’s Case Management/Electronic Case Files System. The attachment, like the opinion, would be retrievable on a non-fee basis through the Public Access to Court Electronic Records system."

News release: "In the 12-month period ending June 30, 2009, there were 1,306,315 bankruptcy cases filed, according to statistics released today by the Administrative Office of the U.S. Courts. That is a 35 percent increase compared to filings for the 12-month period ending June 30, 2008, when cases totaled 967,831."

WSJ: Justice O'Connor's continuing judicial work [as a substitute judge, Justice O'Connor has heard nearly 80 cases and written more than a dozen opinions] comes in addition to many other activities, from ceremonial functions -- such as serving as grand marshal of the Rose Parade in Pasadena, Calif., and as chancellor of the College of William & Mary in Williamsburg, Va. -- to serious assignments, including the Iraq Study Group that proposed an exit strategy for U.S. forces and panels reviewing policy for the national parks, the U.S. position toward the International Criminal Court and ways to promote research into Alzheimer's disease, which afflicts her husband, John. Justice O'Connor also lectures at law schools, dedicated her old Arizona home as a new center called the O'Connor House for Public Discourse and spearheaded Georgetown Law School's Sandra Day O'Connor Project on the State of the Judiciary. She's written a children's book and pioneered a Web site intended to teach youngsters about the judiciary..."

New York Times: "Justice Sonia Sotomayor took the judicial oath on Aug. 8, 2009, becoming the first Hispanic and third woman to serve on the Supreme Court in United States history."

As reported in the Concorde Monitor (New Hampshire), Justice Souter's longtime neighbor said "Souter told him one of the reasons he decided to move was because his Weare house wasn't structurally sound enough to hold the thousands of books that make up his library."

Joel Zand, FindLaw: "A panel of three federal judges ordered the State of California to reduce its inmate population because of prison overcrowding, resulting in the release of approximately 43,000 prisoners during the next two years so that the state's prisons can operate at 137.5% of their design capacity. In a 184-page opinion, the panel ordered California to provide an inmate reduction plan within 45 days to carry out the court's directive "in no more than two years."

"The federal Judiciary's Public Access to Court Electronic Records (PACER) system has reached the one million mark in number of subscribers who have registered since 1991. The system allows users to obtain federal court case and docket information via the Internet."

Overview of Statutory Mandatory Minimum Sentencing: "The Commission has identified at least 171 individual mandatory minimum provisions currently in the federal criminal statutes. In the Commission’s fiscal year 2008 datafile, there were 31,239 counts of conviction that carried a mandatory minimum term of imprisonment.3 Because an offender may be sentenced for multiple counts of conviction that carry mandatory minimum penalties, these 31,239 counts of conviction exceed the total number of offenders (21,023 offenders, as reported below) who were convicted of statutes carrying such penalties. Of these 31,239 counts of conviction, the overwhelming majority (90.7%) were for drug offenses (24,789 counts of conviction, or 79.4%) and firearms offenses (3,527 counts of conviction, or 11.3%)."

"Very timely Justice Department data obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) show that immigration enforcement under the Obama Administration is returning to the unusually high levels that were reached under President Bush. The clearest sign of the administration's current immigration enforcement policy emerged from the monthly growth in such prosecutions -- up from 6,562 in January when the president came into office to 9,037 in April. But the government's initial decision to step up immigration prosecutions goes back to FY 2004 with the launching of a program called "Operation Streamline." While the monthly number of prosecutions varied during President Bush's second term, it hit an all time high of 11,454 in September of 2008. The latest data is here."

Follow up to previous postings on US Supreme Court nominee Sonia Sotomayor, from today's Senate Judiciary Committee nomination hearing:

• Witness Testimony - Judge Sonia Sotomayor
  
• Member Statements
  
• NPR - Sotomayor: 'Fidelity To The Law' Guides Me
  
• Senate Committee on the Judiciary: Supreme Court Nomination Hearings (1971 - forward)

Brennan Center for Justice: Language Access in State Courts, Laura Abel

A Guide to the Preservation of Federal Judges’ Papers, Second Edition, Federal Judicial History Office, Federal Judicial Center 2009

"The National Archives Office of Records Services, the William J. Clinton Library, and the George Bush Library released records relating to Judge Sonia Sotomayor."

New York Times: The Place of Women on the Court, interview with Justice Ruth Bader Ginsburg.

CRS - Judge Sonia Sotomayor: Analysis of Selected Opinions, June 19, 2009: "In May 2009, Supreme Court Justice David Souter announced his intention to retire from the Supreme Court. Several weeks later, President Obama nominated Judge Sonia Sotomayor, who currently serves on the U.S. Court of Appeals for the Second Circuit, to fill his seat. To fulfill its constitutional advice and consent function, the Senate will consider Judge Sotomayors extensive record compiled from years as a lawyer, prosecutor, district court judge, and appellate court judge to better understand her legal approaches and judicial philosophy. This report provides an analysis of selected opinions authored by Judge Sotomayor during her tenure as a judge on the Second Circuit. Discussions of the selected opinions are grouped according to various topics of legal significance. As a group, the opinions belie easy categorization along any ideological spectrum. However, it is possible to draw some conclusions regarding Judge Sotomayors judicial approach, both within some specific issue areas and in general. Perhaps the most consistent characteristic of Judge Sotomayors approach as an appellate judge has been an adherence to the doctrine of stare decisis, i.e., the upholding of past judicial precedents. Other characteristics appear to include what many would describe as a careful application of particular facts at issue in a case and a dislike for situations in which the court might be seen as oversteping its judicial role. It is difficult to determine the extent to which Judge Sotomayors style as a judge on the Second Circuit would predict her style should she become a Supreme Court justice. However, as has been the case historically with other nominees, some of her approaches may be enduring characteristics."
See also:

• American Bar Assocation Rating Released: Sonia Sotomayor, nominated to be Associate Justice to the U.S. Supreme Court
  
• Comment Of Senator Patrick Leahy (D-Vt.), Chairman, Senate Judiciary Committee, On The ABA’s Rating Of Judge Sonia Sotomayor, July 7, 2009
  
• Sotomayor Confirmation Hearing To Begin July 13, 2009
  
• Confirmation Hearings: A Timeline That Is Fair To Senators, And Fair To The Nominee

New York Times DealBook: "A federal judge late on Sunday approved a plan by General Motors to sell its best assets to a new, government-backed company, a crucial step for the automaker to restructure and complete its trip through bankruptcy court. The decision by the judge, Robert E. Gerber, of Federal Bankruptcy Court in Manhattan, came after three days of hearings to address the 850 objections to the restructuring plan and after he received a revised sale order from G.M.’s lawyers. In his 95-page opinion, Judge Gerber wrote that he agreed with G.M.’s main contention: that the asset sale was needed to preserve its business, in the face of steep losses and government financing that is slated to run out by the end of the week."

• GM news release: GM 363 Asset Sale Approved by U.S. Bankruptcy Court
  
• Related postings on General Motor's bankruptcy and the financial system

A Guide to the Preservation of Federal Judge' Papers, Second Edition
Federal Judicial History Office, 2009, 89 pages (Forthcoming)

U.S. Courts: "Bankruptcy filings for the 12-month period ending March 31, 2009, were up 33.3 percent over bankruptcy filings for the 12-month period ending March 31, 2008, according to statistics released today by the Administrative Office of the U.S. Courts. March 2009 bankruptcy filings totaled 1,202,503, compared to the total 901,927 bankruptcy cases filed in the 12-month period ending March 31, 2008. The largest percentage increase occurred in Chapter 11 filings, a 69.1 percent increase over March 2008 Chapter 11 filings."

"The American Civil Liberties Union today released a report summarizing the civil liberties and civil rights record of Judge Sonia Sotomayor, who was nominated by President Obama to replace retiring Justice David Souter as an Associate Justice of the United States Supreme Court. The report was prepared in accordance with ACLU policy, and will be made available to the public and members of the Senate. The ACLU does not endorse or oppose candidates for elective or appointive office."

"In cases where the DEA is the lead investigative agency, there are significant geographic variations in the rates at which individuals convicted of criminal offenses get sent to prison. According to Justice Department data obtained and analyzed by the Transactional Records Access Clearinghouse and just published on TRAC's DEA website, in the Northern District of West Virgina (Wheeling) 65.6% of convictions in such cases resulted in prison terms in 2008. In New York West (Buffalo) the rate was 71.1%. On the other hand, in nine districts fully 100% of all convictions in such cases resulted in prison terms. These were: Alabama Middle (Montgomery), Illinois South (East St. Louis), Illinois Central (Springfield), Michigan West (Grand Rapids), Nebraska (Omaha), North Dakota (Fargo), Oklahoma East (Muskogee), Rhode Island (Providence) and Wisconsin West (Madison). Nationally, the rate was 94.6%...For district-by-district DEA enforcement information go here and click on "District Enforcement." There you'll find data on DEA referrals, charges, convictions, prison sentences and much more, for specific districts and the U.S. as a whole."

Follow up to previous postings on GM bankruptcy: "The United States Bankruptcy Court for the Southern District of New York is pleased to announce a pilot project to make digital audio recordings of court proceedings relating to Chrysler LLC, 09-50002, and General Motors Corporation, 09-50026, publicly available online. The audio files are accessible through the Public Access to Court Electronic Records (PACER) system. Registration for PACER access may be obtained at www.pacer.psc.uscourts.gov"

Federal Justice Statistics, 2006 - Statistical Tables, 5/09: "Describes criminal case processing in the federal justice system, including arrest and booking through sentencing and corrections. These statistical tables present the number of suspects arrested and booked by the U.S. Marshals Service, suspects in matters investigated and prosecuted by U.S. attorneys, defendants adjudicated and sentenced in U.S. district court, and characteristics of federal prisoners and offenders under federal supervision."

"After several months of declines since reaching all-time highs in September, new immigration prosecutions in February were up 22% from the previous month. According to timely case-by-case data obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC), these 8,179 cases represent an increase of about 90% from a year ago, and 250% from February 2004. While immigration cases still account for more than half (53%) of all new federal prosecutions, new filings rose in nearly every other category as well, including drugs (up 49%), weapons (up 19%), white collar crime (up 24%) and government regulation (up 42%). Overall, new criminal cases are at the second-highest level recorded, up 27% from January and up 39% from a year ago."

Law Library of Congress: Supreme Court Nominations - Sonia Sotomayor

New York Times: "President Obama announced on Tuesday that he will nominate the federal appeals judge Sonia Sotomayor for the Supreme Court, choosing a daughter of Puerto Rican parents raised in Bronx public housing projects to become the nation’s first Hispanic justice."

Inquiring Minds Want to Know: Do Justices Tip Their Hands with Questions at Oral Argument in the U.S. Supreme Court? Timothy R. Johnson, University of Minnesota; Ryan C. Black, Washington University, St. Louis - Department of Political Science; Washington University, St. Louis - Center for Empirical Research in the Law; Jerry Goldman; Sarah Treul - Washington University Journal of Law & Policy, Vol. 29, 2009

In interview, retired justice says a woman should be the choice, Tony Mauro, The National Law Journal

United States v. the Council for Tobacco Research-USA, et al. Appellate Ruling, U.S. Court of Appeals for the District of Columbia Circuit, May 22, 2009

Follow up to previous postings on missing White House emails during Bush administrations, today's news release: "Today, in Citizens for Responsibility and Ethics in Washington (CREW) v. Office of Administration, the U.S. Court of Appeals for the D.C. Circuit issued an opinion upholding the district court's conclusion that the Office of Administration (OA) is not an agency and therefore is not subject to the Freedom of Information Act (FOIA). CREW brought this lawsuit under the FOIA to uncover documents related to OA's response to the discovery that millions of emails had gone missing from White House servers. Although OA had a history of responding to FOIA requests – in fact the office’s own website included regulations for filing FOIA requests with OA – after CREW sued OA suddenly claimed it was not an agency and was not required to produce any of the requested documents. The district court sided with the Bush administration, finding that OA was not an agency because it performed only administrative support functions and did not exercise substantial independent authority. In today's ruling, the D.C. Circuit agreed with that decision."

Criminal Justice Reform Resources 2008-2009: Ken Strutin's guide focuses on select current reports, surveys, legislative proposals and scholarship regarding criminal justice reform. It is only a small sampling of the increasing volume of publications on vital matters of interest to criminal practitioners and the public. Therefore, only a few themes are covered: criminal justice, discovery, forensics, juvenile justice, prosecutorial misconduct, public defense, sentencing and wrongful conviction.

"The United States Bankruptcy Court for the Southern District of New York is pleased to announce a pilot project to make digital audio recordings of court proceedings relating to Chrysler LLC, 09-50002, publicly available online. The audio files are accessible through the Public Access to Court Electronic Records (PACER) system. Registration for PACER access may be obtained at www.pacer.psc.uscourts.gov."

• All documents in the Chrysler bankruptcy case should be filed and viewed on http://ecf.nysb-mega.uscourts.gov/.
  
• The lead case is: In re Chrysler LLC, 09-50002; parties filing documents (e.g., notices of appearance) should do so in the lead case only.
  
• Additional case and claims filing information can be found on the Chrysler page
  
• Related postings on Chrysler
Permanent Link

Follow up to May 14, 2009 posting, FTC Files Suit to Stop Illegal Robocalls Pushing Vehicle “Warranty Extensions" - "Today Judge John F. Grady of the United States District Court for the Northern District of Illinois issued a temporary restraining order stopping telemarketing company Voice Touch, Inc., its principals James and Maureen Dunne, its business partner Network Foundations LLC, and Network Foundations principal Damian Kohlfeld from making any further calls in violation of the Do Not Call Registry and other provisions of the Telemarketing Sales Rule and the FTC Act. The FTC filed the case yesterday, charging that the defendants were operating a massive telemarketing scheme that used random, pre-recorded phone calls to deceive consumers into thinking that their vehicle’s warranty is about to expire."

A Current Glance at Women in the Law 2008 - Women in the Legal Profession, American Bar Association Market Research Department.

News release: "Chrysler LLC today announced that, as a result of the comprehensive restructuring plan agreed to by many of its stakeholders, it has reached an agreement in principle to establish a global strategic alliance with Fiat SpA to form a vibrant new company. It will allow Chrysler and Fiat to fully optimize their respective manufacturing footprints and the global supplier base, while providing each with access to additional markets. Fiat powertrains and components will also be produced at Chrysler manufacturing sites."

• See the Chrysler Restructuring website for Information for Parties of Interest, fact sheets, updates, etc.
  Letter from the Chairman
  
• Chapter 11 Fact Sheet
  
• Via FindLaw - Chrysler's Chapter 11 Bankruptcy Petition - In Re: Chrysler, LLC, April 30, 2009: "Chrysler, one of Detroit's 'Big 3' automakers, filed for Chapter 11 bankruptcy relief in New York City. The global car company lists billions in debt and liabilities, and has an extensive list of creditors to whom it owes money."
  
• Obama Administration Auto Restructuring Initiative
  Chrysler-Fiat Alliance
  
• Related postings on financial system

"A total of 1,891 applications to federal and state judges for orders authorizing the interception of wire, oral or electronic communications were reported in 2008. No applications were denied. This is a 14 percent decrease in the total of applications reported, compared to 2007. Fewer states—22 states compared to 24 in 2007—reported wiretap activity and the number of applications approved by state judges, 1,505, was down 14 percent from 2007. Federal judges approved 386 applications, down 16 percent from 2007. Orders for 28 wiretaps were approved for which no wiretaps actually were installed. Additional data on applications for wiretaps for the period January 1 through December 31, 2008, is available online in the 2008 Wiretap Report."

News release: "After a thorough scientific review ordered in 2007 by the U.S. Supreme Court [Massachusetts v. EPA, 549 U.S. 497], the Environmental Protection Agency issued a proposed finding Friday that greenhouse gases contribute to air pollution that may endanger public health or welfare...EPA’s proposed endangerment finding is based on rigorous, peer-reviewed scientific analysis of six gases – carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride – that have been the subject of intensive analysis by scientists around the world. The science clearly shows that concentrations of these gases are at unprecedented levels as a result of human emissions, and these high levels are very likely the cause of the increase in average temperatures and other changes in our climate."

The Third Branch: "The Judicial Conference, in its continuing efforts to ensure appropriate public access to court files, has voted to make federal court sealed cases more readily apparent. The Conference, acting at its March 17 meeting, voted to have Internet lists of civil and criminal cases in district courts include a case number and generic name, such as “Sealed vs. Sealed,” for each sealed case. Such lists for each of the 94 district courts are generated by the Judiciary’s Case Management/Electronic Case Files system and are accessible through the Public Access to Court Electronic Records (PACER) system."

News release: "The National Institute of Justice (NIJ), Office of Justice Programs (OJP), U.S. Department of Justice (DOJ), has released the publication High-Priority Criminal Justice Technology Needs. This publication is a description of the research, development, evaluation, and testing process that NIJ goes through to ensure their research portfolios are aligned with the needs of the criminal justice community. The publication also summarizes the high-priority needs for the criminal justice field in the area of technology. These needs are organized into five functional areas—Protecting the Public; Ensuring Officer Safety; Confirming the Guilty and Protecting the Innocent; Improving the Efficiency of Justice; Enabling Informed Decision-Making."

News release - New Jersey Files Suit Against Executives and Directors of Lehman Brothers. Eight-count complaint charges company misrepresentations led to state losing millions on stock investments in 2008.

News release: "The Judicial Conference of the United States today adopted a revised Code of Conduct for United States Judges that will take effect July 1, 2009, the first substantial Code revision since 1992. At its biannual meeting, the Conference also voted to ask Congress to create 63 new federal judgeships — 12 in the courts of appeals (nine permanent and three temporary) and 51 in the district courts (38 permanent and 13 temporary)."

News release: "The Transactional Records Access Clearinghouse (TRAC) today asked the Office of Personnel Management (OPM) to reverse its decision withholding government organizational information on the grounds that the release would violate the privacy of individual employees. TRAC's appeal to OPM concerned a February 23 ruling by Gary A. Lukowski, the manager of OPM's Workforce Information and Planning Group, that contended the release of the requested information about how an agency is organized into units and subunits "would constitute a clearly unwarranted invasion of personal privacy." In its appeal, TRAC said it was impossible for the requested structural information to invade personal privacy because "these records contain no information about any individual." TRAC also noted that the OPM action directly contradicted President Obama's January 21 Transparency and Open Government memorandum pledging his administration to "an unprecedented level of openness."

WSJ: Cough It Up, Bernie: Feds Look to Seize Homes, Boats, Pianos...

US Courts: "Bankruptcy filings in the federal courts rose 31 percent in calendar year 2008, according to data released today by the Administrative Office of the U.S. Courts. The number of bankruptcies filed in the twelve-month period ending December 31, 2008, totaled 1,117,771, up from 850,912 bankruptcies filed in CY 2007. Filings have grown since CY 2006 when bankruptcy filings totaled 617,660, in the first full 12-month period after the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) took effect. An historic high in the number of bankruptcy filings was seen in calendar year 2005, when over 2 million bankruptcies were filed."

US Courts: "President George W. Bush appointed 328 persons to Article III judgeships, the third most of any president."

News release: "Explosive growth in the number of people on probation or parole has propelled the population of the American corrections system to more than 7.3 million, or 1 in every 31 U.S. adults, according to a report released today by the Pew Center on the States. The vast majority of these offenders live in the community, yet new data in the report finds that nearly 90 percent of state corrections dollars are spent on prisons. One in 31: The Long Reach of American Corrections examines the scale and cost of prison, jail, probation and parole in each of the 50 states, and provides a blueprint for states to cut both crime and spending by reallocating prison expenses to fund stronger supervision of the large number of offenders in the community."

"The latest available data from the Justice Department show that during November 2008 the government reported 16 new national internal security/terrorism prosecutions. According to the case-by-case information analyzed by the Transactional Records Access Clearinghouse (TRAC), this number is up from 13 in the previous month. These two months' figures are the lowest recorded in this category since September 2001. The comparisons of the number of defendants charged with national internal security/terrorism-related offenses are based on case-by-case information obtained by TRAC under the Freedom of Information Act from the Executive Office for United States Attorneys."

Timothy B. Lee: "Speaking at Princeton on Thursday, Richard Sarnoff, chairman of the Association of American Publishers, discussed the landmark settlement in the Google Book Search case. Sarnoff speculated that the agreement could effectively give Google and Amazon a "duopoly" in the online book market."

Update to February 4, 2009 posting, New and Restyled Civil and Criminal Forms Now Online, the reference has been revised to facilitate user access, see Federal Court Forms Now Categorized - A list of 56 new and restyled civil and criminal forms has been posted in a categorized listing.

"FOX Business Network has won a victory against the Treasury Department in its Freedom of Information Act request for details about the government’s bailout plan. Judge Richard J. Holwell of the U.S. District Court for the Southern District of New York said in a decision Friday that the government is directed to comply with FOX Business’s request under the FOIA “within 30 days and to produce a Vaughn index with 45 days.”

A Rising Share: Hispanics and Federal Crime: "Sharp growth in illegal immigration and increased enforcement of immigration laws have dramatically altered the ethnic composition of offenders sentenced in federal courts. In 2007, Latinos accounted for 40% of all sentenced federal offenders - more than triple their share (13%) of the total U.S. adult population. The share of all sentenced offenders who were Latino in 2007 was up from 24% in 1991, according to an analysis of data from the United States Sentencing Commission (USSC) by the Pew Hispanic Center, a project of the Pew Research Center."

Alternative Sentencing in the Federal Criminal Justice System, United States Sentencing Commission, January 2009.

News release: "The United States Securities and Exchange Commission announced that on February 9, 2009, it submitted to the Honorable Judge Louis L. Stanton, a federal judge in the Southern District of New York, the consent of Bernard L. Madoff to a proposed partial judgment imposing a permanent injunction and continuing relief previously imposed in the preliminary injunction order, entered on December 18, 2008. Madoff consented to the partial judgment without admitting or denying the allegations [$50 billion fraud] of the SEC's complaint, filed on December 11, 2008. If the partial judgment is entered by the Court, the permanent injunction will continue to restrain Madoff from violating certain antifraud provisions of the federal securities laws. Also, the proposed partial judgment would continue against Madoff the relief imposed in the December 18, 2008 Order, including the order freezing assets. The proposed partial judgment would leave the issues of the amount of disgorgement, prejudgment interest and civil penalty to be imposed against Madoff to be decided at a later time."

"A list of 56 new and restyled civil and criminal forms has been posted. A working group of judges, clerks, and staff members in the Administrative Office of the U.S. Courts has rewritten the forms in simple, modern English."

US Court: "New poverty guidelines for 2009, needed by persons seeking fee waivers when filing for bankruptcy protection under Chapter 7 of the Bankruptcy Code, have been posted. Guidelines and Other Bankruptcy Resources."

"The Federal Judicial Caseload Statistics tables for courts of appeals, district courts, bankruptcy courts, and the federal probation system and pretrial services through March 31, 2008 are newly posted."

News release: "The Federal Trade Commission today announced that the agency returned almost $28 million to consumers this week as a result of a settlement with The Bear Stearns Companies, LLC and EMC Mortgage Corporation. Using the defendants’ records, about 86,000 consumers who had mortgage loans serviced by EMC have been mailed redress checks."

CDT news release: "The Supreme Court Wednesday dealt the final blow to the government's 10-year campaign to place onerous restrictions on Internet content. The Court declined to hear the government's appeal of lower court rulings [3rd U.S. Circuit Court of Appeals Decision in COPA February 22, 2008] that declared the Child Online Protection Act as unconstitutional. COPA passed in 1998 but was never enforced due to immediate court challenges on First Amendment grounds. Since COPA was passed there have been at least three major commissions or studies that have concluded that education and voluntary technology tools are the most effective way to protect kids online. These approaches are the ones Congress and the President should pursue to enhance Internet safety."

Follow up to previous postings on missing White House emails, today's news release: "At a hearing today concerning the risks posed by the presidential transition to the recovery of millions of missing e-mails from the Executive Office of the President (EOP) in the National Security Archive's lawsuit seeking restoration of those e-mails, the White House acknowledged that it has done little to recover e-mail files from computer workstations and nothing to collect external media storage devices that could hold e-mails. These admissions came despite the issuance of a report and recommendation in April 2008 by a federal magistrate judge calling for the White House to locate and preserve data from the workstations and external media storage devices. Earlier today the court issued an order requiring steps to be taken to secure files from individual computer workstations, memory sticks, zip drives, DVDs and CDs."

"The Federal Judicial Center has posted a monograph that offers a brief introduction to the complexity and nuance in the subject-matter jurisdiction of the U.S. Courts of Appeals, including civil and criminal appeals, extraordinary writs, and federal agency reviews."

2008 Year-End Report on the Federal Judiciary: "The Judiciary, including the Supreme Court, other federal courts, the Administrative Office of the United States Courts, and the Federal Judicial Center, received a total appropriation in fiscal year 2008 of $6.2 billion. That represents a mere two-tenths of 1% of the United States’ total $3 trillion budget. Two-tenths of 1%! That is all we ask for one of the three branches of government—the one charged “to guard the Constitution and the rights of individuals.” Alexander Hamilton, Federalist No. 78."

News release: "The Brady Campaign to Prevent Gun Violence today filed suit in federal court asking that the court strike down a last-minute Bush Administration rule change allowing concealed, loaded firearms in national parks and wildlife refuges. The suit was filed in the U.S. District Court for the District of Columbia, and seeks an injunction to block the rule, which is scheduled to go into effect on January 9, 2009...The rule will allow guns in rural and urban national park areas around the country, from Wyoming’s Yellowstone and California’s Yosemite to Philadelphia’s Independence National Historical Park, home of the Liberty Bell. The suit was filed on behalf of the Brady Campaign and its members, including school teachers in the New York and Washington, D.C. areas who are canceling or curtailing school trips to Ellis Island and the Statue of Liberty and the National Mall in Washington, D.C. now that the Bush Administration will be allowing guns in these national park areas."

U.S. Courts: "Bankruptcy cases filed in federal courts totaled 1,042,993 for the 12-month period ending September 30, 2008, up more than 30 percent when compared to the 801,269 filings in Fiscal Year 2007, according to statistics released today by the Administrative Office of the U.S. Courts. The September 2008 filings are the highest of any 12-month period since the 2006 implementation of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, when there were 1,112,542 filings in the 12-month period ending September 30, 2006."

• SEC press release
• FBI press release
• ECF U.S. District Court, United States District Court for the Southern District of New York (Foley Square), CIVIL DOCKET FOR CASE #: 1:08-cv-10791-LLS. Securities and Exchange Commission v. Madoff et al, Assigned to: Judge Louis L. Stanton. Cause: 15:77 Securities Fraud

News release: "In 2008, the Electronic Public Access (EPA) Program celebrates its own coming of age after two decades of expansion and service. Back in September 1988, the Judicial Conference authorized “an experimental program of electronic access for the public to court information in one or more district, bankruptcy, or appellate courts in which the experiment can be conducted at nominal cost.”A dozen courts signed up for the pilot Public Access to Court Electronic Records (PACER) system.

It began as an electronic bulletin board system with dial-in modems. The U.S. Party/Case Index was added in 1997, allowing national searches through an index for district, bankruptcy, and appellate court cases. In 1998, PACER began moving to a web environment, so anyone with Internet access could view court cases.

From a dozen participating courts, PACER has grown to include all bankruptcy, district, and appellate courts. From 9,000 registered user accounts in 1994, PACER grew to 900,000 registered accounts by 2008. This fiscal year alone, PACER added 134,000 new users."

United States District Court for the District of Columbia, Anthrax Case Documents.

TRAC news release: "The latest available data from the Justice Department show that in August 2008 the government reported 13,566 new prosecutions. While down slightly (2.3%) from the previous month, this number is still 43% higher than a year ago. The overall growth in federal prosecutions is largely driven by continuing increases in immigration matters, which accounted for 54% of all new cases filed in August in U.S. Federal Court."

News release: In the wake of a February 2008 appeals court decision striking down weak regulations proposed by the Bush Administration’s Environmental Protection Agency (EPA), a new report from the nonprofit Environmental Integrity Project finds that the top 50 most polluting power plants In the U.S. emitted 20 tons of the dangerous neurotoxin mercury into the nation’s air in 2007. While some of the dirtiest coal-fired power plants are reporting reductions in such pollution since 2006, the majority of the worst 50 plants actually increased their mercury emissions through 2007, the most recent period for which data is available."

"Following an EPIC complaint, a federal court has ordered CyberSpy Software to stop selling malicious computer software. In March, EPIC filed a complaint with the Federal Trade Commission alleging that the spyware purveyor engages in unfair and deceptive practices by: (1) promoting illegal surveillance; (2) encouraging "Trojan Horse" email attacks; and (3) failing to warn customers of the legal dangers arising from misuse of the software. The federal regulators agreed, and asked the court for a permanent injunction barring sales of CyberSpy's "stalker spyware," over the counter surveillance technology sold for individuals to spy on other individuals. The court entered a temporary restraining order on November 6, 2008. Further litigation is expected before the court rules on the government's request for a permanent ban. For more information, see EPIC's Personal Surveillance Technologies page and Domestic Violence and Privacy page."

News release: "A court ruled today that the National Security Archive may proceed with its effort to force the White House to recover millions of Bush Administration Executive Office of the President (EOP) e-mail records before the presidential transition. Rejecting the government's motion to dismiss the Archive's lawsuit, the Court ruled that the Federal Records Act permits a private plaintiff to bring suit to require the head of the EOP or the Archivist of the United States to notify Congress or ask the Attorney General to initiate action to recover destroyed or missing e-mail records...The National Security Archive originally filed its case against the Executive Office of the President and the National Archives and Records Administration to preserve and restore missing e-mail federal records in September 5, 2007. A subsequent lawsuit filed by Citizens for Responsibility and Ethics in Washington has been consolidated with the Archive's lawsuit. A chronology of the litigation is available here."

Report on Federal Escape Offenses in Fiscal Years 2006 and 2007: "In response to a suggestion in a decision by the United States Court of Appeals for the Seventh Circuit, United States v. Chambers, 473 F.3d 724 (7th Cir. 2007), cert. granted, __ U.S. __ , 128 S. Ct. 2046 (2008), the United States Sentencing Commission undertook a data analysis of federal escape cases to inform the legal question of whether the crime of escape qualifies as a "violent felony" for purposes of 18 U.S.C. § 924(e), the Armed Career Criminal Act (the “ACCA”). This report summarizes the legal question at issue and describes the methodology and results of the analysis undertaken by the Commission."

News release: "In a striking rebuke to the Central Intelligence Agency (CIA), Judge Gladys Kessler of the United States District Court for the District of Columbia yesterday rejected the CIA's view that it - and not journalists - has the right to determine which Freedom of Information Act (FOIA) requests are newsworthy. Reconsidering its earlier decision deferring to the CIA's written assurances that the agency would cease illegally denying the National Security Archive's news media status, the court ordered the CIA to treat the Archive as a representative of the news media for all of its pending and future non-commercial requests. Finding that the CIA "has twice made highly misleading representations to the Archive, as well as to [the] Court," the court explained that the CIA's position "is truly hard to take seriously" and enjoined the CIA from illegally denying the Archive's news media status."

"In EPIC v. DOJ, EPIC, the ACLU, and the National Security Archive are seeking government documents regarding the President's warrantless wiretapping program. Today, a federal court ordered the Department of Justice to provide for inspection copies of legal memos authored by government lawyers. The opinions, prepared by the Office of Legal Counsel, provided the legal basis for the President to wiretap US citizens in the United States without court approval. EPIC began the Freedom of Information Act lawsuit in December 2005, after the New York Times first reported the details of the wiretap program. For more information, see EPIC's EPIC v. DOJ page. (Oct. 31)"

Fact Sheet: Major U.S. Export Enforcement Prosecutions During the Past Two Years - "...a snapshot of some of the major export and embargo-related criminal prosecutions handled by the Justice Department over the past two years, beginning in October 2006. These cases resulted from investigations by the Department of Homeland Security’s U.S. Immigration and Customs Enforcement (ICE), the Federal Bureau of Investigation (FBI), the Department of Commerce’s Bureau of Industry and Security (BIS), the Pentagon’s Defense Criminal Investigative Service (DCIS), and other law enforcement agencies. This list of cases is not exhaustive and only represents select cases."

News release: "Over 14,000 plaintiff winners received monetary damages in civil trials nationwide in 2005, with less than 5 percent receiving damages exceeding $1 million, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The BJS study is the first nationally representative measure of general civil (that is, tort, contract, and real property) bench and jury trials in state courts of general jurisdiction."

Processed Freedom of Information Act (FOIA) Requests - "The George Bush Library is in the process of updating and adding to the list of finding aids on this page" [which currently includes documents from 1998 to 2005].

• October 16, 2008 - Cost-of-Living Adjustments for Federal Civil Service Annuities
• October 14, 2008 - Potential Offset Supply in a Cap-and-Trade Program
• October 14, 2008 - Federal Personnel: Conversion of Employees from Appointed (Noncareer) Positions to Career Positions in the Executive Branch
• October 14, 2008 - Auction Basics: Background for Assessing Proposed Treasury Purchases of MortgageBacked Securities
• October 06, 2008 - Supreme Court Appellate Jurisdiction Over Military Court Cases

Transactional Records Access Clearinghouse (TRAC): "The latest available data from the Justice Department show that for the first ten months of FY 2008, the federal government reported filing 151 criminal mortgage fraud cases. The DOJ has only recently created a category for tracking such cases. Because of natural court delays, however, the government said that only 37 cases of this type were completed in the same ten-month period. In the months to come, TRAC will be providing regular updates on every referral acted upon by each U.S. Attorney's Office and what the ultimate outcomes are."

TRAC news release: "...the Internal Revenue Service on Tuesday turned over to TRAC thousands of pages of agency statistics on audits of all types, including individual, corporate, partnership and S corporation audits. A strongly worded June 13, 2008 ruling issued by Judge Marsha Pechman of the U.S. District Court for the Western District of Washington mandated that the data requested under the Freedom of Information Act be turned over to TRAC, as specified in two court orders issued against the agency in 2006. However, rather than release the information as directed by the Court, the IRS instead filed a motion for a stay pending an appeal to the Ninth Circuit, U.S. Court of Appeals.

In denying this motion for a stay, Judge Pechman wrote that "Defendant has not shown a likelihood of success on the merits of its appeal, and [...] enforcement of the Court's June 13, 2008 order will not cause irreparable harm to any party or increase the burden on the IRS and does not impact the public interest."

Despite this ruling, and despite explicit instructions from the Court directing the IRS to immediately comply with the instructions set forth in the June 13, 2008 order, the IRS submitted a second motion for a stay. The denial of this second motion for a stay included the observation that the "Defendant has repeatedly defied this Court's orders" and instructed the IRS yet again to comply with the June 13, 2008 order.

Scott L. Nelson, TRAC's lead attorney in this case, detailed in an October 6 letter to the Ninth Circuit why the Court should not expedite consideration of the IRS' appeal. The next day, the IRS abandoned its request for an expedited ruling, and turned over the requested data to TRAC. The IRS has not however withdrawn its motion for a stay."

Statutory Structure and Legislative Drafting Conventions: A Primer for Judges, M. Douglass Bellis, Deputy Legislative Counsel, United States House of Representatives, Federal Judicial Center 2008

President Bush Discusses Judicial Accomplishments and Philosophy, October 6, 2008

• Fact Sheet: Judges Who Honor the Constitution
  
• In Focus: Judicial Nominations

Department of Justice, Office of Legal Counsel: Enforceability of Certain Agreements Between the Department of the Treasury and the Government Sponsored Enterprises, (September 26, 2008) (added 10/02/08)

"The U.S. Sentencing Commission reports that from March 3 to August 26 of this year federal courts received 13,170 motions for sentence reductions by offenders convicted of crack cocaine crimes, and granted 9,703 of them." Report. District by District Statistics.

Follow up to previous postings on the government's domestic surveillance program, today news that "The Electronic Frontier Foundation (EFF) filed a lawsuit [full complaint in Jewel v. NSA] against the National Security Agency (NSA) and other government agencies today on behalf of AT&T customers to stop the illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records. The five individual plaintiffs are also suing President George W. Bush, Vice President Dick Cheney, Cheney's chief of staff David Addington, former Attorney General and White House Counsel Alberto Gonzales and other individuals who ordered or participated in the warrantless domestic surveillance."

News release: "The Bear Stearns Companies, LLC and its subsidiary, EMC Mortgage Corporation, have agreed to pay $28 million to settle Federal Trade Commission charges that they engaged in unlawful practices in servicing consumers’ home mortgage loans. The companies allegedly misrepresented the amounts borrowers owed, charged unauthorized fees, such as late fees, property inspection fees, and loan modification fees, and engaged in unlawful and abusive collection practices. Under the proposed settlement they will stop the alleged illegal practices and institute a data integrity program to ensure the accuracy and completeness of consumers’ loan information."

News release: "The Department today issued a report informing consumers, businesses and policy makers about issues relating to monopolization offenses under the antitrust laws. The report, Competition and Monopoly: Single-Firm Conduct Under Section 2 of the Sherman Act, September 2008, U.S. Department of Justice (215 pages, PDF) examines whether and when specific types of single-firm conduct may or may not violate Section 2 of the Sherman Act by harming competition and consumer welfare.

The Department's report draws extensively on a series of joint hearings, involving more than 100 participants, that the Department and the Federal Trade Commission (FTC) held from June 2006 to May 2007 to explore in depth the antitrust treatment of single-firm conduct. The 213-page report also incorporates commentary found in scholarly literature and the jurisprudence of the U.S. Supreme Court and lower courts.

Section 2 of the Sherman Act prohibits a firm from illegally acquiring or maintaining a monopoly, meaning the ability to exclude competitors and profitably raise price significantly above competitive levels for a sustained period of time. Unlike antitrust laws that prohibit anticompetitive mergers or other agreements among firms, Section 2 particularly targets single-firm conduct, such as decisions regarding whether and on what terms to sell to or buy from others. Although possessing monopoly power is not unlawful, using an improper means to seek or maintain monopoly power is unlawful where it can harm competition and consumers."

"The Justice Department and its Executive Office for Immigration Review (EOIR) have failed to complete significant parts of their 22-point plan to improve the performance of the nation's Immigration Courts, according to a detailed analysis by the Transactional Records Access Clearinghouse (TRAC). While major shortcomings were identified, the study also found areas where the proposed changes were adopted.

Former Attorney General Alberto Gonzales issued the improvement plan in 2006 in the wake of a series of federal appellate court rulings that sharply criticized the Immigration Courts. The proposed plan also followed the publication of detailed statistical studies by TRAC and others documenting extraordinary disparities in how individual immigration judges were deciding asylum matters. The studies showed that case outcomes were frequently determined more by the outlook of a particular judge than the underlying facts."

National Law Journal (subscription req'd): "The U.S. Court of Appeals for the Federal Circuit affirmed a $1 billion damages award by the U.S. Court of Federal Claims for the government's breach of oil and gas leases held by 11 companies -- what court watchers say may be the largest single award by the claims court in its 150-year history.

Also, in a trio of cases, a three-judge panel of the Federal Circuit resolved a crucial issue largely in favor of nuclear utilities in the spent-fuel battle with the government, which is likely to boost damages awards in the 40 to 50 cases still pending."

"Two newly updated features let you trace the growth of the federal court system over more than 200 years, state by state for the district courts and by each judicial circuit for the courts of appeals."

• Index: Chronological History of Authorized Judgeships in U.S. District Courts
  
• Index: Chronological History of Authorized Judgeships in the U.S. Courts of Appeals

News release: "The Securities and Exchange Commission today charged two Wall Street brokers with defrauding their customers when making more than $1 billion in unauthorized purchases of subprime-related auction rate securities...The SEC alleges that Julian Tzolov and Eric Butler misled customers into believing that auction rate securities being purchased in their accounts were backed by federally guaranteed student loans and were a safe and liquid alternative to bank deposits or money market funds. Instead, the securities that Tzolov and Butler purchased for their customers were backed by subprime mortgages, collateralized debt obligations (CDOs), and other non-student loan collateral."

ACLU news release: "A federal judge [U.S. District Court, Southern District of New York] has ordered the Justice Department's Office of Legal Counsel (OLC) to turn over three memos that authorized the extremely harsh treatment of prisoners in CIA custody or explain by October 3 why these memos can lawfully be withheld. The American Civil Liberties Union called for the immediate release of the May 2005 OLC memos as part of its Freedom of Information Act (FOIA) lawsuit requesting information on the treatment and interrogation of detainees in U.S. custody overseas...In another development in the same case, the ACLU obtained Department of Defense (DOD) documents about the treatment of detainees in Iraq. The documents, from the military's Criminal Investigation Division, are from two investigations."

Bureau of Justice Statistics: "Presents 110 tables with detailed data on major variables measured by the National Crime Victimization Survey (NCVS)."

Bureau of Justice Statistics: Civil Rights Complaints in U.S. District Courts, 1990 - 2006

U.S. Courts: "In the 12-month period ending June 30, 2008, there were 967,831 bankruptcy cases filed, according to statistics released today by the Administrative Office of the U.S. Courts. That is a 28.9 percent increase compared to filings for the 12-month period ending June 30, 2007, when cases totaled 751,056. Historic data on bankruptcy filings is available on the Judiciary's website under Bankruptcy Statistics."

The Third Branch: "To protect the privacy of litigants, the Federal Rules of Practice and Procedure require that certain personal data identifiers be modified or partially redacted from federal court case files. These identifiers are Social Security numbers, dates of birth, financial account numbers, and names of minor children, and in criminal cases, also home addresses. In all cases, it is the responsibility of the attorney and the parties in the case to redact personal identifiers...

Many courts, such as the District of Arizona and the Northern District of California, have posted information to their websites on effective redaction techniques. For a look at their tips, visit their websites at: https://ecf.cand.uscourts.gov/cand/faq/tips/redacting.htm or http://www.azd.uscourts.gov/azd/cm-ecf.nsf/docview/files/$file/redaction.pdf"

"Judicial Facts and Figures is a set of tables containing historical caseload data primarily for the fiscal years from 1990, 1995, 2000 and 2002 through 2007. The tables include data on the U.S. Courts of Appeals, the U.S. District Courts, and the U.S. Bankruptcy Courts."

News release: "The Navy’s use of low frequency active sonar will remain restricted to certain military training areas of the Pacific Ocean, according to an agreement approved by a U.S. district court in San Francisco today. The comprehensive agreement between the Navy and conservation organizations follows a court injunction issued early this year against the Navy’s Surveillance Towed Array Sensor System Low Frequency Active (LFA) sonar system, which blasts vast areas of ocean with harmful levels of underwater noise. In that decision, the court agreed with a coalition of organizations, led by the Natural Resources Defense Council (NRDC), that the Navy’s proposed LFA deployment in more than 70 percent of the world’s oceans was illegal. A separate lawsuit challenging the U.S. Navy’s use of mid-frequency active sonar is currently under consideration in the U.S. Supreme Court."

• Final Settlement Agreement Outlining U.S. Navy's Use of LFA Sonar in Pacific Ocean, 2008
  
• Related postings on Navy sonar program

U.S. Sentencing Commission Preliminary Crack Cocaine Retroactivity Data Report, August 2008 Data

As part of its ongoing mission, the United States Sentencing Commission provides Congress, the judiciary, the executive branch, and the general public with data extracted and analyzed from sentencing documents submitted by courts to the Commission. Data is reported on an annual basis in the Commission’s Annual Report and Sourcebook of Federal Sentencing Statistics. The Commission also reports preliminary data for an on-going fiscal year in order to provide real-time analysis of sentencing practices in the federal courts...This report is another in the Commission's efforts to provide analysis of federal sentencing practices. It provides data concerning recent court decisions considering motions to reduce the length of imprisonment for certain offenders convicted prior to November 1, 2007 of offenses involving crack cocaine."

"As personal information becomes more widely available on blogs, MySpace, Facebook and other social networking Web sites, the Internet has become an important tool for jury consultants and trial lawyers. Such sites are a treasure trove of information about potential and seated jurors that can be used in picking the right jurors, bouncing potential jurors and even influencing jurors during trial and in closing arguments. Jury consultants have begun turning to private investigators, some of whom have started niche businesses offering Internet jury research and "personality profiling" of jurors." [National Law Journal, August 11, 2008 - subscription req'd]

Human Rights Watch - Courting History - The Landmark International Criminal Court’s First Years, July 2008: "This 244-page report examines the ICC’s accomplishments and shortcomings since it began operations in 2003. The court was created to bring justice to the victims of gross human rights violations; so far the court has issued arrest warrants against suspects in four countries, though none have yet been tried."

"In a July 31 amicus brief filed in a federal court in Pennsylvania, the Electronic Frontier Foundation, joined by CDT, ACLU and the ACLU of Pennsylvania, argued that cell phone location information is protected by the Fourth Amendment. The brief argues that a court should require the government to obtain a warrant based on probable cause in order to gain access to cell site location information stored by a cell phone company."

AP - US: Ivins solely responsible for anthrax attacks

Press release: "As the Department indicated last week and has been widely reported, substantial progress has been made in the Amerithrax investigation in recent years. As you know, this investigation into the worst act of bioterrorism in U.S. history has been one of the largest and most complex ever conducted by the FBI. The U.S. Postal Inspection Service has also made an extraordinary contribution to this investigation. Over the past seven years, hundreds of thousands of agent-hours have been dedicated to solving this crime.

Ordinarily, we do not publicly disclose evidence against a suspect who has not been charged, in part because of the presumption of innocence. But because of the extraordinary and justified public interest in this investigation, as well as the significant public attention resulting from the death of Dr. Bruce Edwards Ivins last week, today we are compelled to take the extraordinary step of providing first, the victims and their families, as well as Congress, and the American public with an overview of some recent developments as well as some of our conclusions.

Earlier today, several search warrant affidavits were unsealed in federal court in the District of Columbia. Among other things, these search warrants confirm that the government was investigating Dr. Ivins in connection with the attacks, which killed five individuals and injured 17 others in 2001. Dr. Ivins was a resident of Frederick, Maryland, and a long-time anthrax researcher who worked at the U.S. Army Medical Research Institute for Infectious Diseases, known as USAMRIID. Dr. Ivins died of an overdose on July 29, 2008, and, at the time of his death, was the sole suspect in the case."

• DOJ webpage with links to Amerithrax Court Documents
• Science Magazine: FBI Releases Documents on Suspected Anthrax Poisoner
• Statement from Venable Attorneys Representing Dr. Bruce Ivins Responding to Justice Department Press Conference Naming Dr. Ivins as Sole Suspect in 2001 Anthrax Attacks

DOJ press release: "United States Senator Theodore F. Stevens of Alaska was charged today in an indictment returned by a federal grand jury in the District of Columbia with seven counts of making false statements related to Stevens’ financial disclosure forms, Acting Assistant Attorney General Matthew Friedrich of the Criminal Division announced.

The seven-count indictment charges Sen. Stevens, the former chairperson of the Senate Committee on Appropriations, with engaging in a nearly eight-year scheme to conceal his receipt of more than $250,000 in things of value from VECO Corporation, formerly a multi-national oil services company based in Alaska, and Bill J. Allen, the Chief Executive Officer of VECO at the time. According to the indictment, Stevens concealed these things of value from his publicly filed United States Senate financial disclosure forms. The things of value that Stevens allegedly received included: substantial home improvements to property Stevens owns in Girdwood, Alaska; automobile exchanges in which Stevens received new vehicles worth far more than the used vehicles Stevens provided in exchange; and household goods. The indictment also alleges that Sen. Stevens, during the same time that he was concealing his continuing receipt of these things of value from VECO and Allen, received solicitations for official actions from Allen and other VECO employees, and that Sen. Stevens used his position and office on behalf of VECO during that same time period."

• 28 page Indictment
• Press Conference Transcript
• Statement from Alaska Senator Ted Stevens: "I have proudly served this nation and Alaska for over 50 years. My public service began when I served in World War II. It saddens me to learn that these charges have been brought against me. I have never knowingly submitted a false disclosure form required by law as a U.S. Senator."
• Background on the indictment from OpenSecrets.org: Feds Indict Alaska Sen. Stevens

Blume, John H., Johnson, Sheri Lynn and Sundby, Scott E.,Competent Capital Representation: The Necessity of Knowing and Heeding What Jurors Tell Us About Mitigation. Hofstra Law Review, Vol. 36, No. 3, 2008

"This article appears in the Hofstra Law Review symposium issue on the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty cases. The complete text of the issue, which also contains the Guidelines themselves, is available online at www.law.hofstra.edu/DeathPenalty

Capital defense counsel have a duty at every stage of the case to take advantage of all appropriate opportunities to argue why death is not a suitable punishment for their particular client. But that duty can hardly be discharged effectively if the arguments are made in ignorance of available information concerning how persuasive they are likely to be to their audience.

Heeding that simple proposition we present lessons from the work of the Capital Jury Project, an ongoing empirical research effort built upon extended interviews with people who have actually sat on capital juries. We find that the standards for mitigation investigations contained in the ABA's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases reprinted in 31 Hofstra L. Rev. 913 (2003) and in the Supplementary Guidelines that are the subject of this issue are on firm empirical ground, both in their specific aspects and in their overall approach of encouraging counsel to be creative in building a coherent mitigation theory that is advanced consistently throughout the proceedings.

We then describe particular defense themes and approaches that Project data show are likely to resonate favorably with jurors as well as the most potent prosecution arguments for death and how they might be most effectively rebutted. We conclude by describing the current research findings on the demographic and attitudinal characteristics of those jurors most likely to vote for life, and offering pointers on how to best ameliorate the scandalous but well-documented reality that many jurors simply do not understand the task they are being called upon to perform."

"The 3rd U.S. Circuit Court of Appeals today upheld a lower court ruling striking down the controversial Child Online Protection Act (COPA) that required Web operators to restrict access to large amounts of constitutionally protected speech. COPA placed severe restrictions on a wide range of legal, socially valuable speech, including content relating to sexual identity, health and art. CDT, which has filed friend-of-the-court briefs opposing COPA and supporting parental empowerment technology, applauds the ruling. July 22, 2008.

• CDT Statement on Ruling July 22, 2008
  
• 3rd U.S. Circuit Court of Appeals Decision in COPA [PDF] July 22, 2008
  
• CDT Policy Post on COPA March 23, 2007
  
• Related postings on COPA and articles from LLRX.com

US Courts: "The first annual report to Congress containing new bankruptcy statistics mandated by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 was filed by the Administrative Office in advance of the July 1, 2008 deadline.

The 2005 law requires bankruptcy courts to collect statistics on debtors who meet certain criteria. The Judiciary data systems in place when the law was enacted could not capture all the required information. Consequently, a whole new system and software had to be built, and the Judiciary began collecting the mandated data on October 17, 2006."

The 2007 Report of Statistics Required by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005.

Ruling Invalidates an FCC Decision and Fine in Connection With an Incident During the Halftime Show of the 2004 Super Bowl, Filed 07/21/08, No. 06-3575 CBS Corporation v. FCC Agency (102 pages, PDF)

Transactional Records Access Clearinghouse: "New reports on the nation's 200-plus immigration judges are now available. The reports, covering how the judges decided asylum matters in the FY 2002 to FY 2007 period, are based on tens of thousands of very detailed records obtained and analyzed by TRAC under the Freedom of Information Act. The source was the Executive Office for Immigration Review, an agency within the Justice Department. The reports provide biographic information about the judges, breakdowns on the proportion
of asylum matters they decline, and how their records compare with other judges in the base city and for the nation as a whole. Also available are data on the nationality of those requesting asylum and the percent who were represented by counsel."

EPIC: "Today marks the 50th anniversary of the Supreme Court's decision in NAACP v. Alabama, one of the most important privacy cases of the last century. Professor Anita L. Allen, a leading privacy scholar, author of many books and articles, and a member of the EPIC Board of Directors, wrote an essay to celebrate the anniversary of the decision."

The Third Branch: "In a pilot project that began last August, five federal courts are docketing some digital audio recordings to Case Management/Electronic Case Files (CM/ECF) systems to make the audio files available in the same way written files have long been available on the Internet. The three other courts are the Eastern District of Pennsylvania, the U.S. Bankruptcy Court in Maine, and the U.S. Bankruptcy Court for the Northern District of Alabama.

In each court, the extent of accessibility is determined by individual judges, and not every judge in the five pilot courts is participating. “This is a judge-driven experiment,” said Mary Stickney of the Administrative Office’s Electronic Public Access Program Office. “Because providing digital audio recordings online is done as a convenience for lawyers and the public, each judge has total discretion to decide which proceedings get posted.”

The audio files are accessible through the Public Access to Court Electronic Records (PACER) system. Some 840,000 subscribers use PACER to access docket and case information from federal appellate, district, and bankruptcy courts."

Transactional Records Access Clearinghouse [TRAC] Report: "Federal immigration prosecutions in March 2008 continued their recent and highly unusual surge, apparently reaching an all-time high, according to timely data from the Justice Department. The total of 9,350 such prosecutions was up by almost 50% from the previous month and 73% from the previous year.

The dramatic changes in the number of defendants charged with immigration-related charges are based on case-by-case information obtained by TRAC under the Freedom of Information Act from the Executive Office for United states Attorneys."

Follow up - related postings on missing White House emails, today's news: News release: "Today, D.C. District Court Judge Colleen Kollar-Kotelly issued an opinion in CREW v. Office of Administration, finding that the Office of Administration (OA) is not an agency subject to the Freedom of Information Act (FOIA). In May 2007, CREW sued OA for records regarding missing White House e-mail and the office’s assessment of the scope of the problem. After initially agreeing to provide records, OA changed course and claimed it was not an agency and, therefore, had no obligation to comply with the FOIA. OA made this claim despite the fact that even the White House’s own website described OA as an agency and included regulations for processing FOIA requests."

SCOTUSblog: "The opinion by Justice Kennedy in Boumediene v. Bush (06-1195) and Al-Odah v. United States (06-1196) is available here. Justice Souter issued a concurring opinion joined by Justices Ginsburg and Breyer. The Chief Justice wrote a dissent joined by Justices Scalia, Thomas and Alito. Justice Scalia filed a dissent, joined by the Chief Justice and Justics Thomas and Alito."

The Crime Victims’ Rights Act of 2004 and the Federal Courts, Jefri Wood
Federal Judicial Center, June 2, 2008. "A newly published paper available on the Federal Judicial Center's web site provides an overview of key provisions of the Crime Victims' Rights Act."

"States that employ sentencing guidelines, a reform effort that encourages judges to take specific legally relevant elements into account during the sentencing process, are found to have more predictability, reduced discrimination, and increased transparency in sentencing, according to a study released [May 22, 2008] by the National Center for State Courts.

Assessing Consistency and Fairness in Sentencing: A Comparative Study in Three States

U.S. Courts: "Bankruptcy filings in the federal courts for the 12-month period ending March 31, 2008, exceeded 900,000, according to statistics released today by the Administrative Office of the U.S. Courts. The 901,927 bankruptcy cases filed represent a 30 percent increase over the 695,575 cases filed in the 12-month period ending March 31, 2007."

The Art of Written Persuasion: The Rise of Written Persuasion - In this column, Troy Simpson writes on persuading judges in writing. This first article in the series surveys the history of written advocacy in three jurisdictions — England and Wales, Australia, and America - to show why good written advocacy is vital to the modern lawyer.

News release: "The Federal Trade Commission has put a permanent halt to an operation that allegedly obtained consumers’ confidential phone records without their knowledge or consent and sold them to third parties. The defendants are barred from obtaining consumers’ telephone records without their consent and court orders impose judgments on the defendants totaling more than $600,000 – the estimated amount of their ill-gotten gains.

Linda Greenhouse, New York Times: "The Supreme Court on Tuesday ruled that employees are protected from retaliation when they complain about discrimination in the workplace, adopting a broad interpretation of workers’ rights under two federal civil rights laws. By decisions of 7 to 2 in one case and 6 to 3 in the other, the court found that the two statutes afford protection from retaliation even though Congress did not explicitly say so."

• Opinion (Gomez-Perez v. Potter)
  
• Opinion (CBOCS West, Inc. v. Humphries)

Follow up to previous postings on retroactivity for sentencing guidelines for crack cocaine, from The Third Branch: "Federal district courts generally are coping well with the sudden increase in their workloads that occurred March 3, when a retroactive reduction in penalties for crack cocaine offenders took effect and more than 21,000 inmates became eligible for shorter prison sentences. Three weeks after the Sentencing Guidelines amendment took effect, the sentences of more than 3,000 inmates nationwide had been reduced. More than 1,000 inmates had been ordered released immediately."

Follow up to previous postings on tainted pet food recalls see

"U.S. D.C. Cir., May 20, 2008 - In a 2-1 majority opinion, a federal appeals court ruled that the U.S. Treasury Department's continued use of paper money discriminates against blind users by denying them meaningful access to currency, as well as "facially reasonable accommodations that are feasible and efficacious," which would enable non-sighted users access to it." [FindLaw]

"EPIC filed a "friend of the court" brief (pdf) in the United States Supreme Court, urging the Justices to ensure the accuracy of police databases. The brief was filed on behalf of 27 legal scholars and technical experts and 13 privacy and civil liberty groups. In Herring v. US, the Court will be asked to determine whether an arrest based on inaccurate information in a criminal justice database should be upheld. EPIC explained how government databases are becoming increasingly unreliable, according to the government's own studies and urged the Court to “ensure an accuracy obligation on law enforcement agents who rely on criminal justice information systems.” The amici warned that, “to permit a good faith reliance on data that is inaccurate, incomplete, or out of date will actually exacerbate the problem and increase the likelihood of unfair treatment in the criminal justice system.” See EPIC page on Herring v. US

US Courts news release: "In fiscal year 2007, it cost $24,922 to keep someone incarcerated in a Federal Bureau of Prisons facility for 12 months, and $22,871 to keep an inmate incarcerated in a community correction center.

For the same 12-month period ending September 30, 2007, it cost $3,621.64 for a federal offender to be supervised by probation officers.

Those figures translate in daily costs of $68.28 for a Bureau of Prisons facility, $62.66 for a community correction center, and $9.92 for supervised release.

For criminal defendants who had not yet been tried, the daily cost of pretrial detention services was $64.40 and the cost of supervision by pretrial services officers was $5.85."

"The fiscal year 2008 update to the Long Range Plan for Information Technology in the Federal Judiciary articulates five-year directions and objectives for the judiciary’s information technology program. The plan presents the program in terms of five fundamental areas: external participants, court operations, judges and chambers, probation and pretrial services, and information technology infrastructure. This represents a more aggressive effort to identify needs by various constituents. Future updates to the plan will build on this approach and incorporate additional elements."

News release: "The United States Sentencing Commission announced today the formation of a standing advisory group to provide the Commission insight and advice on the operation of the federal sentencing guidelines from the perspective of victims of federal crime. The initial Victims Advisory Group (“VAG”) will be composed of six members representing the spectrum of interest groups and organizations interested in victims’ issues at the federal level."

• April 11, 2008 - District of Columbia v. Heller: The Supreme Court and the Second Amendment - "In Parker v. District of Columbia, the United States Court of Appeals for the District of Columbia Circuit ruled in a 2-1 decision that provisions of the D.C. Code that prohibit persons from keeping handguns in their home are unconstitutional in that they infringe upon the individual right to keep and bear arms."
• April 11, 2008 - Navy DD(X) and LCS Ship Acquisition Programs: Oversight Issues and Options for Congress
• April 10, 2008 - Tibet: Problems, Prospects, and U.S. Policy
• April 10, 2008 - Food Price Inflation: Causes and Impacts
• April 10, 2008 - Summary of the Employee Retirement Income Security Act (ERISA)
• April 10, 2008 - East Asia's Foreign Exchange Rate Policies
Permanent Link

US Courts: "An interim report on the impact of the Class Action Fairness Act of 2005 notes a 72 percent increase in class action cases for comparable periods in 2001 and 2007 in 88 federal district courts. Due later this year is a report on the act's impact on judicial activity and resources needed to manage and resolve class actions."

News release: "Bankruptcy filings in the federal courts rose 38 percent in calendar year 2007, according to data released today by the Administrative Office of the U.S. Courts. The number of bankruptcies filed in the twelve-month period ending December 31, 2007, totaled 850,912, up from 617,660 bankruptcies filed in calendar year 2006. Filings rebounded from a 70 percent drop in calendar year 2006, which was the first full 12-month period after the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) took effect."

"A new publication from the Federal Judicial Center discusses methods federal judges have employed to meet the challenges posed by cases related to terrorism."

The Sunshine in Litigation Act: Does Court Secrecy Undermine Public Health and Safety? Senate Judiciary Committee, S. HRG. 110–263 [248 pages, PDF]. Hearing Before the Subcommittee on Antitrust, Competition Policy and Consumer Rights of the Committee on the Judiciary, United States Senate, 110th Congress, 1st Session, December 11, 2007. [via FAS]

"February 2008 Preliminary Post-Kimbrough/Gall Data Report: A set of tables presenting preliminary data on fiscal year 2008 cases sentenced on or after December 10, 2008. The numbers are prepared using data received, coded, and edited by the Commission by February 21, 2008."

In Series of Videos, Supreme Court Justices Make Their Case - Justices' candid observations and pet peeves spill forth in legal writing guru Bryan Garner's video interviews. Legal Times, Tony Mauro
March 11, 2008.

PR Newswire: "Just two days after a new Washington Post national poll found that 59 percent of the American public supports restrictions identical to Washington, DC's gun laws -- which ban handgun possession and require that legally possessed rifles and shotguns be either disassembled or secured with a trigger lock -- the U.S. Supreme Court is scheduled tomorrow to hear oral arguments in a case challenging DC's handgun ban, District of Columbia v. Heller. Reiterating the findings contained in its amicus brief filed in the case, the Violence Policy Center (VPC) warned that increasingly lethal handguns being marketed by the gun industry -- ranging from high-capacity semiautomatic handguns to next-generation assault pistols based on AK-47 and AR-15 assault rifles -- make the handgun ban today even more of a necessity to protect first responders and citizens in the nation's capital than when it was first enacted in 1976."

"On Tuesday, March 18, 2008, C-SPAN will air the Supreme Court oral argument of District of Columbia v. Heller which the Court is scheduled to hear that day. The immediate release of the audio recording of the Court's argument was in response to a request by C-SPAN (Release time is approximately 11:15 A.M.). The Court will make the recording available to the media soon after the conclusion of the oral argument. The oral argument will air on C-SPAN, and C-SPAN Radio as soon as it is released. The audio recording will also be archived online at www.c-span.org on the “America and the Courts” page."

News release: "The federal courts are well-positioned to address an anticipated increase in immigration-related workload and other challenges facing the Judiciary, thanks to Congressional funding, representatives of the Judicial Conference today told House and Senate appropriations subcommittees. If the Judiciary is to maintain staffing levels in the courts and initiate several program enhancements, however, a 7.6 percent increase over fiscal year 2008 enacted appropriations is needed in fiscal year 2009. The Judiciary seeks $6.72 billion for fiscal year 2009, $4.97 billion of which would fund the courts' Salaries and Expenses account."

News release: "The Judicial Conference of the United States today approved the first-ever binding, nationwide set of rules for handling conduct and disability complaints against federal judges, bringing consistency and rigor to the process."

News release: "For fiscal year 2007, total case filings in the U.S. district courts remained stable, bankruptcy filings grew steadily throughout the year, and persons under post-conviction supervision increased 2 percent. In the same 12-month period ending September 30, 2007, appeals declined 12 percent. These and other statistics on the federal Judiciary for fiscal year 2007 were released today by the Administrative Office of the U.S. Courts and are available online: 2007 Judicial Caseload Indicators and 2007 Judicial Business."

Follow up to previous postings on the U.S. Attorney firings, this news release today - "the U.S. House of Representatives General Counsel filed a civil lawsuit on behalf of the House Judiciary Committee to enforce subpoenas issued by the committee seeking information on the U.S. Attorney firings. The defendants in the case are former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten who were cited by the House for contempt of Congress last month. Last week, the Justice Department refused to present the House-passed contempt citations to a grand jury, contrary to federal law. Based on the House resolution that also found Bolten and Miers in comtempt, the committee is now filing the civil lawsuit to enforce the subpoenas."

News release: "The Committee on Codes of Conduct of the Judicial Conference of the United States seeks public comments on proposed revisions to the Code of Conduct for United States Judges. The proposed revisions are based in large part on revisions adopted by the American Bar Association in February 2007, amending the ABA Model Code of Judicial Conduct. The proposed revised Code of Conduct for United States Judges is on-line in two versions: proposed new Code of Conduct in its entirety, and the revisions proposed to the current Code of Conduct."

The Third Branch: "Fiscal year 2008 funding for the Judiciary was rolled up with 10 other appropriations bills and passed by Congress on December 19, 2007, as the 2008 Consolidated Appropriations Act. The President signed the bill into law the day after Christmas. The Judiciary received $6.246 billion in FY 2008, a 4.5 percent increase over FY 2007."

Pew Press Release: "For the first time in history more than one in every 100 adults in America are in jail or prison—a fact that significantly impacts state budgets without delivering a clear return on public safety. According to a new report released today by the Pew Center on the States’ Public Safety Performance Project, at the start of 2008, 2,319,258 adults were held in American prisons or jails, or one in every 99.1 men and women, according to the study. During 2007, the prison population rose by more than 25,000 inmates. In addition to detailing state and regional prison growth rates, Pew’s report, One in 100: Behind Bars in America 2008, identifies how corrections spending compares to other state investments, why it has increased, and what some states are doing to limit growth in both prison populations and costs while maintaining public safety."

United Nations Office on Drugs and Crime: Good Practices for the Protection of Witnesses in Criminal Proceedings Involving Organized Crime, January 2008.

Hearing on Cracked Justice – Addressing the Unfairness in Cocaine Sentencing, House Judiciary Committee, Subcommittee on Crime, Terrorism, and Homeland Security, February 26, 2008.

Follow up to December 11, 2007 posting Retroactivity Approved for Crack Cocaine Guideline, from the Administrative Office of the U.S. Courts : "As of March 3, 2008, more than 21,000 inmates serving time for federal crimes involving crack cocaine will be eligible to have their sentences reduced. Federal courts already are preparing to rule on requests from inmates, some imprisoned since 1992...The USSC, an independent agency within the federal Judiciary, amended the Guidelines to lower the base offense level for crack cocaine by two levels. For example, the penalty for a first-time offender found with 10 grams of crack would be reduced by two levels, from a range of 63—78 months in prison to a range of 51—63 months."

Statement of FCC Commissioner Copps in Response to the D.C. Circuit's Decision Vacating the FCC's Denial and Dismissal of the Gulf Coast Migratory Birds Petition: "For years, I have been disappointed with the FCC’s failure to get serious about its environmental responsibilities. Now the D.C. Circuit has affirmed something this agency should have acknowledged a long time ago: that the National Environmental Protection Act, the Endangered Species Act, and the Migratory Bird Treaty Act require the FCC to take a hard look at the effects of communications towers on migratory birds."

Diversity and Ethnic Fairness in the Jury System, Cheryl Thomas
with Nigel Balmer, Ministry of Justice, June 2007.

FindLaw: U.S. v. Khalid Sheikh Mohammed, et al. (Guantanamo Bay, Cuba, Feb. 11, 2008) - "The U.S. Department of Defense announced that six high-value detainees held in Guantanamo Bay were charged, under the Military Commissions Act, with planning and executing the Sept. 11, 2001 terrorist attacks. Specific charges include violations of the laws of war, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, destroying of property in violation of the laws of war, terrorism, and material support to terrorism."

• Update on Detainee Military Commissions - Brigadier General Thomas W. Hartmann, Legal Adviser to the Convening Authority, Department of Defense, Office of Military Commissions, Foreign Press Center Briefing, Washington, DC, February 11, 2008


• DOD Transcript, Sept. 11 Co-Conspirators Charged, February 11, 2008


• CIA Director's Statement on 9/11 War Crimes Charges

Press release: "Tai Shen Kuo, age 58, and Yu Xin Kang, age 33, both of New Orleans, Louisiana, and Gregg William Bergersen, age 51, of Alexandria, Virginia, were arrested today on espionage charges related to the passage of classified U.S. government documents and information to the government of the People’s Republic of China (PRC). Both Kuo and Kang were charged by criminal complaint with conspiracy to disclose national defense information to a foreign government, in violation of 18 U.S.C., Section 794(a) and (c). Bergersen was charged in a separate complaint with conspiracy to disclose national defense information to persons not entitled to receive it, in violation of 18 U.S.C., Section 793(d) and (g)."

Federal Court Management Statistics-2007: "Fiscal year 2007 statistical profiles for each U.S. court of appeals and U.S. district court – plus national totals for the appellate and district courts – are available online."

Press release: "More than 15 years after Congress required the federal government to set up a national database to allow car buyers to determine whether a vehicle has been stolen or rebuilt after a wreck, the system is still not in place, three consumers groups said Wednesday in a lawsuit filed against the Department of Justice (DOJ). Public Citizen, Consumers for Auto Reliability and Safety (CARS) and Consumer Action sued in the U.S. District Court for the Northern District of California. The groups want the court to order the DOJ to move forward with creation of the National Motor Vehicle Title Information System...The database would help consumers avoid purchasing a potentially dangerous used car by allowing them to instantly check the validity of a car’s title and mileage and learn whether it had been stolen or was a junk or salvage vehicle. A salvage vehicle is one that was totaled in collision, fire, flood or other event to the extent that its value, plus the cost of repairing it for legal operation, is more than its fair market value immediately before the event that caused the damage."

Follow up to postings on Navy sonar exercises off Southern California coast, this Natural Resources Defense Council press release: "A federal court [February 4, 2008] struck down a waiver issued by the White House purporting to exempt the U.S. Navy from complying with a bedrock environmental law during sonar training exercises off southern California. In nullifying the waiver, the court reaffirmed an injunction issued early in January, requiring the Navy to reduce harm to whales and other marine mammals from sonar training. The Navy has acknowledged that the high-intensity, mid-frequency sonar at issue can injure and kill whales and other marine mammals."

Press release: "A federal judge has barred the illegal operation of an information broker who advertised and sold confidential consumer telephone records to third parties without the consumers’ knowledge or consent. In entering summary judgment for the Federal Trade Commission, Judge William F. Downes of the U.S. District Court for the District of Wyoming also required the defendants to give up nearly $200,000 in ill-gotten gains derived from the consumer phone records they sold, and ordered that the individuals whose records were sold be notified."

Case No. 2:08cv00064, Southern Utah Wilderness Alliance and Natural Resources Defense Council, vs. Bureau of Land Management, Department of the Interior, United States District Court, District of Utah, Central Division, January 23, 2008.

Executive Office for U.S. Attorneys, The Department of Justice's Victim Notification System, Audit Report 08-04, January 2008, Redacted for public release (142 pages, PDF).

The Courts Statistics Project (CSP) collects and analyzes data relating to the work of our nation's state courts. This website was updated on Updated on Sunday, January 20, 2008.

Follow up to previous postings on missing White House emails, today's Press release from Citizens for Responsibility and Ethics in Washington (CREW): "Yesterday’s midnight filing by the White House in CREW v. Executive Office of the President, a lawsuit challenging the failure of the White House to preserve and restore millions of missing emails, raises some very troubling questions...The White House has now admitted that it does not have an effective system for storing and preserving emails. This is no mere technicality; it is this failure that led to the likely destruction of over 10 million email. What the White House has not explained is why it abandoned the electronic record-keeping system used by the prior administration -- a system that properly preserved White House email -- but did not replace it with another effective and appropriate system."

"Most federal judges come into contact with classified information infrequently, if at all, but when they do, they are faced with the dilemma of how to protect government secrets in the context of an otherwise public proceeding. This pocket guide is designed to familiarize federal judges with statutes and procedures established to help public courts protect government secrets when courts are called upon to do so. The guide provides information about the Classified Information Procedures Act (CIPA), information security officers, and secure storage facilities. I hope you will find this guide useful in meeting the challenge of protecting government secrets in a public forum. Barbara Jacobs Rothstein, Director, Federal Judicial Center"

National Criminal Justice Reference Service: "Many crime laboratories report high backlogs for forensic services. These backlogs can delay court proceedings and case investigation. Laboratories say they do not have the staff to complete all service requests or the budget to hire new employees. Some laboratories have recently begun addressing these challenges with efficiency techniques—called process mapping, an efficiency forum, and business process management. This NIJ In Short describes how laboratories across the country have successfully used these techniques to reduce backlogs. (NCJ 220336)"

CRS Report - How Crime in the United States Is Measured, January 3, 2008 (via FAS)

Follow up to postings on missing White House E-mail, from the National Security Archive: "In an Order issued today, Magistrate Judge Facciola of the United States District Court for the District of Columbia ordered the White House to answer questions about over 5 million missing e-mails generated between 2003-2005. Noting that the need for information the missing e-mails is "time-sensitive" because of the risk that stored copied of the e-mails "are increasingly likely to be deleted or overridden with the passage of time," the Court demanded answers in a sworn declaration by January 13, 2008 about the location of the missing e-mails."

Natural Defense Resources Council press release: "The U.S. District Court for the Central District of California issued today a preliminary injunction requiring a series of mitigation measures that will govern the use of mid-frequency (MFA) sonar by the U.S. Navy during training exercises in the rich biological waters off Southern California. In its order, the Court considered both the environmental benefits of mitigation and the feasibility of specific measures...The high-intensity MFA sonar system can blast vast areas of the oceans with dangerous levels of underwater noise and has killed marine mammals in numerous incidents around the world. The waters off Southern California have some of the richest marine habitat in the country, and include five endangered species of whales, a globally important population of blue whales, the largest animal ever to live on earth, and as many as seven individual species of beaked whales, which are known to be particularly vulnerable to underwater sound."

2007 Year-End Report on the Federal Judiciary, Chief Justice John Roberts, January 1, 2008.

US Courts: "A new fee schedule for certified and professionally qualified interpreters and for language skilled interpreters in federal courts takes effect January 2, 2008. Rates. More about Federal Court Interpreter Program."

A Historic Find Behind a Supreme Court Filing Cabinet: "A copy of the Declaration of Independence sat forgotten at the high court. Now it's cleaned up and on display...The copy, one of only 200 made from the 1776 original, would likely fetch $500,000 or more if sold on the open market, according to an expert dealer in historic documents." Tony Mauro, Legal Times, December 28, 2007.

Massachusetts Trial Court Law Libraries Blog: "We are pleased to announce the availability of all Supreme Judicial Court and Mass. Appeals Court cases from 1986-1996 at http://masscases.com. Cases are accessible by citation, case name, or through a Google custom search on the site. The collection also includes hundreds of the most-cited older Mass. cases."

Courthouse News: "The Federal Circuit renewed patent infringement claims over Google's AutoLink and AdSense programs by tossing out part of a summary judgment ruling for Hyperphrase Technologies LLC. The circuit decision is a setback for the Internet search engine and a victory for Hyperphrase, which challenged the judgment that neither program infringes any of 15 patent claims."

US Courts: "This is the latest working draft of the Rules Governing Judicial Conduct and Disability Proceedings Undertaken Pursuant To 28 U.S.C. §§ 351-364 (50 pages, PDF), adopted by the Committee on Judicial Conduct and Disability. The draft is a substantial revision of the Rules sent out for Public Comment on July 16, 2007. It is the result of the Committee's efforts to respond to the comments received during the public comment period, including testimony and other submissions at the Public Hearing held on September 27, 2007."

Press release: "The Reporters Committee for Freedom of the Press asked a federal court in Manhattan [December 21, 2007] to require open access to records in the civil case over liability following the Sept. 11, 2001 terror attacks. Victims of the attacks and their families filed lawsuits against airline and security companies seeking to determine liability for their injury or losses due to the security breaches that led to the attacks. Documents filed with the court in this case were presumed open, except for a few narrow categories of records Judge Alvin K. Hellerstein deemed could be confidential, including financial and trade secrets data. However, the airline and security companies have been using the narrow protective order to assert that more than 99 percent of the tens of thousands of pages of documents they filed with the court should be covered as confidential under the order. The Reporters Committee argued in a friend-of-the-court brief that is extremely unlikely that nearly all the records contain the information required for confidentiality under the order and asked Hellerstein to require the parties to strictly adhere to the order, only limiting public access to that information allowable under the order...The brief was filed in In re September 11 Litigation, in the U.S. District Court for the Southern District of New York."

US Courts: "Filing a bankruptcy case pro se—without the assistance of an attorney—is not for the faint of heart. “Before the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), a pro se debtor could successfully navigate filing a Chapter 7 bankruptcy,” said Bankruptcy Judge S. Martin Teel, Jr. (D.D.C.). “But with the new Act and its many technical requirements, it’s really a minefield for pro se filers.” Now the Administrative Office’s Bankruptcy Judges Advisory Group (BJAG), of which Teel is a member, has developed a helpful web page for individuals who are thinking of filing a bankruptcy petition pro se." See Filing for Bankruptcy Without an Attorney.

Capital Punishment, 2006 - Statistical Tables, Tracy L. Snell, BJS Statistician: "Presents characteristics of persons under sentence of death on December 31, 2006, and of persons executed in 2006 from the NPS-8 data collection. Tables present state-by-state information on the movement of prisoners into and out of death sentence status during 2006, status of capital statutes, and methods of execution. Numerical tables also summarize data on offenders' gender, race, Hispanic origin, age at time of arrest for capital offense, legal status at time of capital offense, and time between imposition of death sentence and execution."

Press release from Citizens for Responsibility and Ethics in Washington: "From its first days, this administration has tried to keep the American public in the dark about what goes on behind closed White House doors. Through a secret agreement and a letter from Vice President Cheney’s counsel, the administration had attempted to permanently hide from view records related to those who visit the White House and the vice president’s residence. Today, a federal judge has cracked open those doors by holding that these are Secret Service subject to public disclosure. As a result of CREW’s lawsuit, District of Columbia District Court Judge Royce C. Lamberth has ordered the Secret Service to produce records of certain conservative leaders’ visits to the White House within 20 days."

"The National Center for State Courts has published Future Trends in State Courts 2007, the latest in its long-running “Report on Trends in the State Courts” series. This book, which is produced annually by NCSC’s Knowledge and Information Service, helps to make courts more aware of important trends in society and judicial administration that could affect court operations—and public trust and confidence in the judicial system."

Follow up to previous postings on judicial pay raises, today's Legal Times, 12-13-2007: "The House Judiciary Committee on Wednesday approved a bill that would give federal judges their first pay raise in two decades, pushing them to the fore of federal earners. The bill, passed by a 28-5 vote, also would increase the workload for senior judges, raise the retirement age for full pension and discourage retired judges from taking work in the private sector...Under the Federal Judicial Salary Restoration Act of 2007, federal district judges would earn $218,000 annually, uncoupling them from members of Congress, who make $165,200 a year. Federal appeals judges would earn $231,000; Supreme Court associate justices $267,900; and the chief justice $279,900."

Follow up to previous postings on sentencing guidelines, today's press release: "The United States Sentencing Commission unanimously voted today to give retroactive effect to a recent amendment to the Federal Sentencing Guidelines that reduces penalties for crack cocaine offenses. Retroactivity of the crack cocaine amendment will become effective on March 3, 2008. Not every crack cocaine offender will be eligible for a lower sentence under the decision. A Federal sentencing judge will make the final determination of whether an offender is eligible for a lower sentence and how much that sentence should be lowered. That determination will be made only after consideration of many factors, including the Commission’s direction to consider whether lowering the offender’s sentence would pose a danger to public safety. In addition, the overall impact is anticipated to occur incrementally over approximately 30 years, due to the limited nature of the guideline amendment and the fact that many crack cocaine offenders will still be required under Federal law to serve mandatory five- or ten-year sentences because of the amount of crack involved in their offense."

"The Electronic Frontier Foundation (EFF) has received a second set of records from the Office of the Director of National Intelligence (ODNI) detailing behind-the-scenes briefings for lawmakers working to make substantial changes to the Foreign Intelligence Surveillance Act (FISA). EFF requested release of the records under the Freedom of Information Act (FOIA) earlier this year...Last month, a federal judge ordered ODNI to release all documents by December 10. The first batch of records, made public on November 30, detailed contentious negotiations between Director of National Intelligence Mike McConnell and members of Congress that resulted in the passage of the Protect America Act...The second set of records contains more correspondence between McConnell and members of Congress, as well as heavily redacted versions of classified testimony delivered to the Senate Select Committee on Intelligence, and an FAQ detailing how the National Security Agency performs electronic surveillance. Withheld records include ODNI presentation slides used to brief Congress on foreign intelligence issues, and other classified documents."

Via Scotusblog: "The Supreme Court ruled 7-2 that the federal guidelines on sentencing for cocaine violations are advisory only, rejecting a lower court ruling that they are effectively mandatory. Judges must consider the Guideline range for a cocaine violation, the Court said, but may conclude that they are too harsh when considering the disparity between punishment for crack cocaine and cocaine in powder form. Justice Ruth Bader Ginsburg wrote the decision in Kimbrough v. U.S. (06-6330).... Ruling in a second Guidelines case, Gall v. U.S. (06-7949), the Court — also by a 7-2 vote — cleared the way for judges to impose sentences below the specified range and still have such punishment regarded as “reasonable.” The Justices, in an opinion written by Justice John Paul Stevens, told federal appeals courts to use a “deferential abuse-of-discretion standard” even when a trial sets sets a punishment below the range. Chief Justice John G. Roberts, Jr., announced the opinion in Stevens’ absence."

Transactional Records Access Clearinghouse: "In August 2007, there were 62 federal prosecutions of child pornography, according to timely enforcement data from the Justice Department. Though unchanged from the previous month, filings in this category are down by about half (49.7%) from the previous year, and down 20% from five years ago. These declines follow a period of rapid growth for federal child pornography prosecutions which began after President Bush took office. For reports on the latest enforcement trends," see the following links:

Follow up to November 12, 2007 posting, U.S. Sentencing Commission Received 33,000 Letters on Retroactivity, news today that "[t]he U.S. Sentencing Commission, which in November 2007 issued new guidelines for convictions involving crack cocaine, is considering making those guidelines retroactive. The Commission estimates that 19,500 current federal prison inmates would be eligible for a reduced sentence, by an average of 27 months, if the guidelines were made retroactive."

Press release: "The U.S. adult correctional population — incarcerated or in the community — reached 7.2 million men and women, an increase of 159,500 during the year, the Justice Department’s Bureau of Justice Statistics (BJS) announced today in a new report. About 3.2 percent of the U.S. adult population, or 1 in every 31 adults, was in the nation’s prison or jails or on probation or parole at the end of 2006....The two reports, Prisoners in 2006 (NCJ-219416), and Probation and Parole in the United States, 2006 (NCJ-220218), were written by BJS statisticians Heather Couture, Paige M. Harrison and William J. Sabol and Thomas P. Bonczar and Lauren E. Glaze respectively."

Bureau of Justice Statistics: "Presents findings on the pretrial release phase of the criminal justice process using data collected from a representative sample of felony cases filed in the 75 largest U.S. counties in May during even-numbered years from 1990 to 2004. It includes trends on pretrial release rates and the types of release used. Pretrial release rates are compared by arrest offense, demographic characteristics, and criminal history. Characteristics of released and detained defendants are also presented. Rates of pretrial misconduct including failure to appear and rearrest are presented by type of release, demographic characteristics, and criminal history."

Press release: "Late Tuesday, the Electronic Frontier Foundation (EFF) won the speedy release of telecom lobbying records from the Office of the Director of National Intelligence (ODNI). The agency was ordered to comply with a new December 10 deadline -- in time for the documents to play a role in the congressional debate over granting amnesty for telecommunications companies taking part in illegal electronic surveillance. The ruling by U.S. District Judge Susan Illston vacates a hearing on the matter previously scheduled for Friday."

US Courts: "New rules providing privacy protection for case files posted online in the federal district, bankruptcy and appellate courts are scheduled to take effect December 1, 2007. Some of the rules represent a change in Judicial Conference policy. Meanwhile, a Judicial Conference committee is studying a related privacy issue: Whether courts should restrict Internet access to plea agreements in criminal cases, which may contain information identifying defendants who are cooperating with law enforcement investigations. The new rules were proposed by the Judicial Conference in accordance with the E-Government Act of 2002, which requires that each court make publicly available online any document filed electronically. The rules require parties to redact certain personal information from each filing. The Act required the Supreme Court to prescribe rules “to protect privacy and security concerns related to electronic filing of documents and the public availability..of documents filed electronically.” The new privacy rules include Civil Procedure Rule 5.2, Criminal Rule 49.1 and Bankruptcy Rule 9037. Appellate Rule 25 was amended to incorporate the new privacy directive. The rules can be found here."

US Courts: "Supreme Court decisions, shifting Administration priorities, new legislation, and numerous other factors caused the composition of the federal courts’ caseload to change over the past decade. Between September 30, 1997 and September 30, 2006, appeals court filings steadily climbed, district court caseloads fluctuated, and bankruptcy filings hit a record high before tumbling following the enactment of sweeping bankruptcy reform legislation. What are the identifiable caseload trends and what are the forces behind the changing nature of the federal courts’ caseload?"

U.S. District Court, Northern District of California, filed November 23. 2007, ACLU v DHS: Proposed Order Granting Defendants’ Motion to Stay Proceeding Pending New Rulemaking.