Amici Curiae: The Supreme Step Down, Toyotan Armageddon, and Glove Bigotry Edition

SCC Poised for Retirement Boom

In case you weren’t keeping track, seven of the Supremes will be eligible to retire by next year. “The impending retirements could give Prime Minister Stephen Harper, or whoever succeeds him as prime minister, a rare opportunity to overhaul the top court’s composition and thereby perhaps influence or reshape the court’s approach to its lawmaking role and the Constitution,” Cristin Schmitz reported in The Lawyers Weekly.

While all of the judges save for Justices Deschamps and Cromwell are or will be eligible to retire by next year, Schmitz suggested that a sudden exodus from the bench is not likely. Justices Abella, Charron and Rothstein are still relative newcomers to the Court and may not be inclined to leave before having served for longer, and the Chief Justice “seems to be as keen on her job as ever.”

That said, Schmitz focused on Justices Binnie, Fish and, in particular, LeBel, each of whom, notably, were appointed by Liberal governments. “When you reach a certain age, rumours start floating around,” LeBel told Schmitz in an interview. “If I were to take such a decision [to retire] the first person who would be informed would be my wife, and after that my chief justice.” Ottawa scuttlebutt, Schmitz said, suggests LeBel may step down in the next 12 to 18 months. “I will make my decision when the time comes,” LeBel added in his interview. “I like what I am doing and I am still in good health.”

Peter Russell, an expert on constitutional politics and judicial independence, told the Ottawa Citizen that the potential for a surge in retirements and new appointments presents both opportunities and risks. “The concern is that with so many appointments, a prime minister might fill them all with ideological soulmates, because a Supreme Court cannot serve its country well if it is ideologically loaded in one direction or another,” Russell said. “Given the current situation, it is a matter of urgent public business to establish strong checks and balances on the untrammeled partisan or ideological choices of any prime minister.”

Google’s Italian Conviction, and How to Contest It

An Italian court convicted three Google executives of violating Italy’s privacy code this week. The company has been held responsible for hosting a clip, uploaded to Google Video, showing the bullying of an autistic boy by his schoolmates. Although, says Google on its blog, “the video was totally reprehensible and we took it down within hours of being notified by the Italian police,” the Italian prosecutor argued successfully that Google was negligent in allowing the video to linger online for two months, unnoticed by company administrators despite posted comments requesting the video’s removal.

Needless to say, the decision has occasioned a good deal of derisive comment, including that of Richard Thomas, former UK privacy commissioner, who called the verdict “ridiculous” and “simply inconsistent with the way the Internet works,” likening it to “prosecuting the post office for hate mail that is sent in the post.” At Slaw, The Court’s Founding Editor Simon Fodden says that such analogies are “unhelpful” and that they could be easily met, for instance, by the parallel with a book publisher, “where a conviction would be anything but ridiculous.” Says Fodden, “the Internet and the associated structures and businesses comprise sufficiently novel aspects that we must simply address them directly.”

Toyota’s Exploding Liability

Toyota’s actuarial — er, engineering — difficulties continue apace. The company’s recent product liability disaster may be, to those charged with criminal vehicular homicide, what DNA testing is to those on Death Row. The sudden-acceleration recalls have prompted requests to reopen the case of Koua Fong Lee, who was convicted in 2006 of killing three people when he drove his 1996 Toyota Camry into the back of an Oldsmobile atop a Minnesota interstate highway ramp. Lee insists, as he did upon his arrest, that he “was stepping on the brakes as hard as possible”, and that he was “shocked” when told that his car’s brakes were in good repair.

Despite the fact that his car’s braking and acceleration systems predated the lately impugned systems by at least a decade, as well as the fact Lee testified at trial that he could not brake — not that he unwillingly accelerated — the corporate association is sufficient to have attracted the concern of the county prosecutor who presided over the case, who states that “we don’t want an innocent man sitting in prison.” Relatives of the crash’s victims are preparing to sue Toyota and have retained a Texas lawyer, Bob Hilliard, who is also pressing the associative liability angle. According to Hilliard, the recent complaints “suggest a defect more widespread than recalled cruise controls – something with engine control modules that could extend to other Toyota makes and model years.”

The End of Legal Self-Regulation in the UK?

Joshua Rozenberg says that the UK Legal Services Board (LSB)’s announcement permitting non-lawyer ownership of law firms “marks the end of law as a self-regulating profession.” In August, 2011, British corporations will be able to apply for licenses to operate and own firms providing legal services, although, according to the BBC, “this will depend on them being judged fit and proper.” The changes in the profession, a response to popular demand for a regulatory regime perceived as insular and unresponsive, were themselves prompted by supermarket chain Tesco’s provision, in 2004, of “simple and easy to understand legal products” at its stores.

One result was the Legal Services Act 2007, which provided for the establishment of the LSB. “Alternative business structures”, as these non-traditional firms are named, have raised questions about the separation of the legal profession from the state. As former Law Society President Kevin Martin cautioned, “the new regulatory arrangements need to respect the importance of having an independent legal profession,” and that the new regulatory regime “means that the composition of the LSB should be demonstrably independent of government.”

Some commentators, such as Rozenberg, foresee a regulatory and ethical thicket in government oversight of the profession and the possibility that the UK “may see legal practices floated on the Stock Exchange.” Other, more populist voices, such as that of ex-minister Bridget Prentice, say ” I don’t see why consumers should not be able to get legal services as easily as they can buy a tin of beans.” Such views have their adherents in the Canadian context, as in this article by Kate Lunau.

U.S. Solicitor General Kagan is Likely Top Pick to Replace Stevens

It’s not just the Canadian media that’s aflutter about potential retirements on a national high court. U.S. bloggers have been speculating for some time now about the potential retirement of Justices John Paul Stevens and Ruth Bader Ginsburg. Now Tom Goldstein, over at SCOTUSblog, is willing to make the definitive call: “John Paul Stevens very likely will retire. Ruth Bader Ginsburg definitely will not.”

Stevens, the longest serving justice on the bench, is the court’s liberal lion and progressives will likely fight hard to ensure the balance of the court does not swing to the right. To that end, Goldstein predicts that the Obama administration will work diligently to highlight certain recent decisions that might assist in that effort, including Citizens United v FEC (‘s analysis here) and Ledbetter v Goodyear Tire & Rubber Co. “Like criminal law issues, a ‘fight’ with the Court over what would be framed as individual versus corporate rights has a lot of appeal to political independents,” Goldstein observes.

As for who Steven’s post likely successor: Goldstein is putting his money on an oft-named candidate: Solicitor General Elena Kagan, not only because liberals love her and because of her sterling credentials (among them, being dean of Harvard Law School). But for Goldstein, while there are others who fit those criteria, only Kagan provides what is an imperative in today’s highly partisan political climate: A very, very thin record — and no judicial one — meaning that Senators, who have to confirm presidential appointments to the high court, won’t have much to attack.

“General Kagan is extraordinarily — almost artistically — careful,” Goldstein observes. “I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade.” High praise? In this situation, most definitely! For those liberals, however, seeking a more novel choice, Jeffrey Rosen, writing in The Washington Post, is suggesting that Obama nominate – wait for it – Obama, that is, himself. In short, “[t]hough Obama has struggled to find his footing in the White House, his education, temperament and experience make him ideally suited to lead the liberal wing of the court …”

How to Stop Yoo from Doing it Again

Former Bush Justice Department official John Yoo, who provided the administration with legal justification for harsh interrogation techniques widely condemned by critics as being torture, has been cleared of any wrongdoing by the department review panel. In a 69-page legal memo, Deputy Associate Attorney General David Margolis concluded, according to a report from McClatchy Papers, “that these memos contained significant flaws. But as all that glitters is not gold, all flaws do not constitute professional misconduct … I conclude that Yoo and [colleague Jay] Bybee exercised poor judgment by overstating the certainty of their conclusions and underexposing countervailing arguments.”

The Justice Department’s assessment reverses the recommendations of the department’s ethics office, which had earlier concluded that state bar committees should determine whether Yoo’s law license should be revoked. While the blogosphere lit up with praise and criticism for the Margolis Report, Yale University law professor Bruce Ackerman, writing in The Washington Post, tried to take the longer-term view: The Office of Legal Counsel, where Yoo worked, was once staffed by career professionals, but by the time George W. Bush took office, most positions were held by political appointees who “were predisposed to support their president.” That, Ackerman concludes, “invites future John Yoos to rubber-stamp future presidential abuses at moments of (real or imagined) crisis.”

Tariffs, gender, and the American glove
Gloves are born free, but everywhere they are in chains. Roger Alford at Opino Juris writes that the U.S. Federal Court of Appeals has dismissed Totes-Isotoner’s action claiming that its men’s gloves are subject to a discriminatory tariff. The U.S. levies men’s gloves with a 14% tariff, as opposed to 12.6% for women’s gloves. This differential treatment with respect to clothing being a staple of U.S. tariff law, the court dismissed the claim to equal protection for male gloves.

The question, it seems, is whether “Congress intended to discriminate against men in the tariff schedule”, a claim the plaintiff was unable to establish. Not unreasonably, Alford wonders what, exactly, would be required to establish that claim: “a searching inquiry into the minds of government bureaucrats who write the tariff schedules to determine if they have special animus towards men, or men’s hands?” In the end, the court dodged the issue, stating that the distinctions between male and female glove are mercantile in nature, and “designed to promote particular trade policy objectives negotiated with other countries.”

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