Lederman - law profs amicus in emoluments case

D.C. Circuit decision denying standing to members of Congress to challenge Trump's receipt of emoluments is unsurprising (see brief below). All the more reason the pending Mazars case in SCOTUS about the House's investigative power is so important.https://t.co/ROGmycDNh6

— Marty Lederman (@marty_lederman) February 7, 2020

DC Circuit Tosses Emoluments Lawsuit By Members Of Congress | Talking Points Memo

OTHERWISE: DC Circuit Tosses Emoluments Lawsuit By Members Of Congress | Talking Points Memo

If ever there were a political question a court wanted to avoid the Emoluments Clause case against Donald Trump is it.  Lacking a personal stake 215 members of Congress -  the entire Democratic House caucus (while in the minority) - challenged his blatant disregard of the Constitutional prohibition of profiting from foreign potentates.  As Kings, Presidents, Prime Ministers, and ordinary court suitors crowd the bars and halls of his pricey hotel next door the President who refuses to disclose his finances, rakes in the cash and basks in adulation and flattery.

 But in Blumenthal v. Trump the Court of Appeals for the District of Columbia Circuit, was having none of it.  The Members of Congress will have to win politically not in the courts.  The Justice Department has declared him immune from prosecution and in any event is led by a loyalist.  So like Brecht's judge in the Caucasian Chalk Circle, Trump opens court with the words "I receive". - gwc

Senator Mitt Romney - I will vote to convict Trump of abuse of power

OTHERWISE: Senator Mitt Romney - I will vote to convict Trump of abuse of power

FULL REMARKS -- @SenatorRomney: "The grave question the Constitution tasks senators to answer is whether the president committed an act so extreme and egregious that it rises to the level of a high crime and misdemeanor. Yes, he did." pic.twitter.com/fbIhPG12IO

— CSPAN (@cspan) February 5, 2020

Should Animals Be Allowed to Sue? | Sherry F. Colb | Verdict | Legal Analysis and Commentary from Justia

Should Animals Be Allowed to Sue? | Sherry F. Colb | Verdict | Legal Analysis and Commentary from Justia

by Prof. Sherry f. Colb

The story of Justice v. Gwendolyn Vercher began with a woman named Vercher neglecting her horse, named Shadow at the time. In Vercher’s care, Shadow starved and froze, was colonized by lice and harmful bacteria, experienced prolapsed genitals, and shrunk to 300 pounds underweight. Vercher subsequently pleaded guilty to criminal animal neglect under Oregon law. After the criminal plea, the Animal Legal Defense Fund (ALDF) took an unusual step. It brought a civil suit on behalf of the quarter horse, now named Justice, against his convicted former owner, seeking damages for negligence per se, seeking money that would enable someone who adopted Justice to pay the ongoing and enormous veterinary bills that resulted from Vercher’s conduct. This column will consider the question whether there is value in naming an animal like Justice a plaintiff in a civil suit.

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Court Weighs Fairness of Electronic Employee Arbitration Agreement in Pfizer Case | New Jersey Law Journal

New Jersey Chief Justice Stuart Rabner flanked by Associate Justices

Jaynee LaVecchia and Barry Albin

The Supreme Court of New Jersey heard arguments February 3 on whether the pharmaceutical giant Pfizer obtained genuine consent  via an emailed document to require that a flight attendant on company aircraft resolve any dispute with the company through arbitration not litigation.  

Amy Skuze, a Buddhist, held a quasi-religious objection to injection of any animal protein.  She therefore refused to accede to a Pfizer company policy that flight attendants receive the yellow fever vaccine.  It cost her her job, she sued alleging failure to reasonably accommodate her religious beliefs.  Pfizer moved to compel arbitration saying that she had consented to arbitration.  Pfizer had sent a mass email to employees described as "assigning" to each employee recipient  "the activity of taking an on-line module to review the [company's] Mutual Arbitration and Class Waiver Agreement and Acknowledgement."  The Appellate Division of Superior Court reversed the trial court's order compelling arbitration.  The state high court granted review. 
- gwc

 New Jersey Supreme Court Weighs Fairness of Electronic Employee Arbitration Agreement in Pfizer Case | New Jersey Law Journal


by Suzanne Parmley

In Skuse v. Pfizer Inc., the justices are considering whether to uphold the Appellate Division’s ruling from January 2019 that plaintiff Amy Skuse didn’t assent to the arbitration agreement with Pfizer because the term “acknowledge” next to the click box did not rise to the level of “agree.” The appeals panel ruled it simply wasn’t enough.

“The issue at hand is the language: Do you acknowledge? What does that mean here?” Chief Justice Stuart Rabner observed aloud, as arguments got underway at the Richard J. Hughes Justice Complex.

Justice Barry Albin asked Pfizer’s attorney, Thomas Linthorst of Morgan Lewis & Bockius’ Princeton office, whether the court was being asked to treat arbitration agreements differently from other waiver-of-rights cases.

“The state has the power to regulate a wide range of contracts that aren’t protected by federal statutes,” Linthorst said, looking directly at Albin. “But arbitration agreements are protected by federal statutes.”

Linthorst added: “The Plain Language Act does not apply to every arbitration agreement, but the waiver-of-rights agreement does.”

To which Justice Jaynee LaVecchia asked: “Does the Appellate Division decision put more pressure on the employer—like your client—to terminate employees if they don’t agree with the provision?”

“’If you want to keep working here, here are the terms and conditions,’” Linthorst said. “So [the employer] put the decision in the hands of the employee—you decide if you want to keep working here.”

Linthorst said, “If email is the traditional manner of communication between employer and employee—and the employer gives reasonable notice—I think the employee is obligated to … the employer gave them the opportunity … to acknowledge the arbitration agreement.”

Justice Anne Patterson queried Linthorst: “Was this really training? I know they considered it module training.”

“I think it’s fair to say that,” Linthorst said. “This was a training platform. This was the platform by which [employees] got important communications. The emails are about arbitration in the subject line. It’s all about arbitration. There was no confusion about what we were talking about. … It was not about parking spaces.”

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Adam Schiff - Closing argument - Impeachment Trial

OTHERWISE: Supreme Court decision on immigration: Democrats should listen to Neil Gorsuch - Vox

OTHERWISE: Supreme Court decision on immigration: Democrats should listen to Neil Gorsuch - Vox

9th Circuit hears argument in East Bay Sanctuary Case

In East Bay Sanctuary II the 9th Circuit heard argument on December 2.  [briefs here]The government appealed the nationwide injunction entered on September 9, 2019 by Judge Tigar on remand. Two days later on September 11, 2019 the order was stayed by order of the United State Supreme Court.  Since then in an unrelated case New York v. Department of Homeland Security Associate Justice Neil Gorsuch went out of his way to pen an opinion decrying the dangers of nationwide injunctions.  Ian Millhiser, the Vox legal affairs correspondent, unexpectedly labeled Gorsuch's opinion a "good idea".  His point is that forty years of in which conservatives have come to dominate the Supreme Court have been capped by the flood of Federalist Society vetted nominees in the Trump years.  In Millhiser's view `forum shopping' will enable conservatives to obtain nationwide injunctions whcih can be relieved only by the lengthy appeals process. 

Threats to Due Process in U.S. Immigration Courts - Project on Government Oversight

Threats to Due Process in U.S. Immigration Courts

Statement for the Record from The Constitution Project at the Project On Government Oversight before the House Committee on the Judiciary's Subcommittee on Immigration and Citizenship on “Courts in Crisis: The State of Judicial Independence and Due Process in U.S. Immigration Courts.”The Supreme Court has held that the fundamental requirements of procedural due process include notice of the government’s proposed action, an opportunity for a fair hearing before an impartial decision-maker, the right to present evidence and confront the government’s evidence, and the right to be represented by counsel.¹ The immigration court system has a long history of imperfectly meeting these requirements, even though the due process clause of the Constitution applies to removal proceedings. There is a mismatch between the courts’ limited resources, their large and growing caseload, and the potentially devastating consequences of deportation decisions. These chronic problems have been compounded by a series of recent policy changes that have drastically curtailed immigration courts’ independence and immigrants’ rights to seek relief from deportation. This statement will focus on those recent changes.New Limits on Court Independence and ImpartialityImmigration judges and members of the Board of Immigration Appeals are Department of Justice employees. The attorney general can direct those judges in how to manage their courtrooms and dockets; discipline or terminate judges for poor performance; and overturn immigration court precedents. The last two U.S. attorneys general, Jeff Sessions and William Barr, used these tools repeatedly to restrict immigrants’ rights and to incentivize immigration judges to order as many deportations as possible. The attorneys general took actions including:

• Imposing case-completion quotas that require judges to decide at least 700 cases per year in order to receive satisfactory performance evaluations.²

• Limiting judges’ authority to administratively close or terminate cases,³ causing a major growth in the backlog of pending cases.⁴

• Ordering judges to prioritize certain categories of cases, leading to cancellation or double or triple booking of scheduled hearings in other cases.⁵

• Repeatedly overturning Board of Immigration Appeals precedents in order to narrow procedural protections for asylum seekers and eligibility for asylum.⁶

These actions have coincided with a series of public statements by President Donald Trump denouncing asylum seekers as perpetrating a “scam” and a “hoax” in order to “invade” the United States, and the immigration court system as a “ridiculous” obstacle to summary deportation.⁷The cumulative effect, in the words of former immigration judge John Richardson, has been “the relegation of [judges] to the status of ‘action officers’ who deport as many people as possible as soon as possible with only token due process.”⁸ Richardson and several other former immigration judges have told news reporters that they resigned or retired as a result of these changes.⁹

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One Year of Forced Return to Mexico; Three Years of Trump Dismantling the Asylum System

OTHERWISE: One Year of Forced Return to Mexico; Three Years of Trump Dismantling the Asylum System: One Year of Forced Return to Mexico; Three Years of Trump Dismantling the Asylum System by Ruthie Epstein Deputy Director // Immigration Project //ACLU