“…Judge Responds With Heavily-Redacted Refusal” [Tim Cushing, TechDirt]
The Securities and Exchange Commission practice of trying many complaints before administrative law judges (ALJs) who are its own employees, rather than before federal courts, has grown increasingly controversial lately and now one defendant’s challenge to the practice has prevailed — at least for the moment. A federal judge in Atlanta has ruled that because ALJs are “inferior officers” under the constitution, they cannot be simply employed like other federal workers by an agency like the SEC. Writes Thaya Knight at Cato, “there is a fairly easy fix available to the SEC: the five commissioners can simply appoint the existing ALJs to their current positions…. [but] other agencies could face greater difficulties.” But Daniel Fisher quotes Prof. Philip Hamburger as saying the ruling could still prove “profoundly important,” leading to the unraveling of other aspects of administrative law arrangements within agencies. More: W$J (commission fighting off at least seven legal challenges; in one instance it “asked one of its own judges to submit a formal statement about whether he has ever felt pressure to favor the agency”), Adam Zimmerman/PrawfsBlawg.
Counsel’s Ninth Circuit arguments on behalf of copyright troll Prenda Law did not go well, to put it mildly. Trouble was evident even before Judge Pregerson commented, regarding the clients, “They should have asserted the Fifth Amendment because they were engaged in extortion.” [Ken at Popehat; Joe Mullin, Ars Technica] More on the Prenda Law saga here.
“After Wisconsinites vote to amend the state constitution to change how the state supreme court’s chief justice is selected, Shirley Abrahamson sues in federal court to keep her position under the old provision.” Abrahamson’s ten-year term as judge will continue in either case, but under the change just approved by Wisconsin voters, the position of chief judge will no longer be assigned by seniority. [Ann Althouse, whence also the “what democracy looks like” line; & welcome Instapundit readers] More: Rick Esenberg.
Since Judge Thomas Goethals “began presiding over heated hearings probing the misuse of jailhouse informants, dozens of prosecutors have steered criminal cases away from his courtroom.” In the three years 2011-13, prosecutors made disqualification requests against Goethals six times, or an average of twice a year. “Since February 2014, the district attorney’s office has asked to disqualify Goethals — a former homicide prosecutor and defense attorney — in 57 cases, according to court records. … The surge of disqualifications began around the time the Superior Court judge agreed to allow wide-ranging hearings that brought prosecutors’ mishandling of informant-related evidence under harsh scrutiny.” California procedure allows both sides to exercise a single peremptory (unexplained) challenge to remove a judge they deem prejudiced against their interests. Some defense lawyers claim prosecutors are ganging up to discipline Goethals over rulings excoriating prosecutors for their handling of jailhouse-informant evidence. [Los Angeles Times]
“Well, if the judge is comparing you to the Black Knight from Monty Python and the Holy Grail, now’s probably a good time” [Kevin Underhill, Lowering the Bar, on the Montana case of Wallace v. Hayes]
- Departing NPR ombudsman claims U.S. free speech guarantees wouldn’t protect Charlie Hebdo, many on Twitter would like to set him straight on that [Edward Schumacher-Matos] More: Hans Bader.
- Ninth Circuit urged to revisit whether First Amendment protects right to refer to real-world players in fantasy sports [Volokh]
- Multi-party parliamentary panel in Britain proposes banning persons who “spread racial hatred” from Twitter, Facebook, other social media [BBC] Visiting newsagents: “Police from several UK forces seek details of Charlie Hebdo readers” [The Guardian]
- Ecuador regime continues counterattack against social media critics at home and abroad [Adam Steinbaugh (Twitter suspends account “for posting DMCA notice”), The Guardian, earlier] Cartoonist “Bonil” put on trial [Freedom House]
- Burt Neuborne, Robert Corn-Revere debate Williams-Yulee v. Florida Bar case: “Should elected judges be allowed to ask for donations?” [National Constitution Center podcast with Jeffrey Rosen via Ronald Collins, Concurring Opinions]
- Second Circuit confirms: law allowing expungement of arrest records doesn’t require media to go back and delete related news stories [AP, Volokh]
- Rakofsky suit against legal bloggers and other defendants (more than 80 in all) sputters toward apparent conclusion [Turkewitz, more (need for stronger protections against speech-chilling suits under New York law)]
A new study out of Harvard finds that lawyers in the United States lean left politically — though not nearly as far left as do law professors — while judges’ political views by contrast tend more toward the middle of the spectrum. An author of the study concludes something’s wrong with the judges. Oh, Harvard, don’t ever change [Adam Liptak, New York Times]
P.S. And in case you hadn’t guessed, lawyers are phenomenally active in the political process:
The study is based on an analysis of the campaign contributions of American lawyers, a group that turns out to be exceptionally active in the financial side of elections.
Of the 975,000 lawyers listed in 2012 in the Martindale-Hubbell legal directory, 43 percent had made contributions to state or federal candidates — including state judicial candidates — since 1979. That is about 10 times the rate of the voting-age population.
One difficulty with the study’s approach, as Liptak notes, is that contributions may reflect factors distinct from ideological leanings, such as economic self-interest. Certainly some lawyers have no terribly strong political views of their own but regard Democratic policies as more conducive to the prosperity of the legal sector or their own particular firm.
A criminal defendant’s road to lenience? Not if Judge Jeffrey Lanphear has a say about it [Providence Journal]