Crime & Federalism

Erwin Chemerinsky mesmerized the conference with his brilliant review of Supreme Court decisions of interest to 1983 practitioners. For 90 minutes, he spoke without notes, diseecting each case in terms of voting blocs and relation to precedent. He did it all with child-look good humor and a sense of wonder.

Herewith the highlights of his presentation:

The Court decided fewer cases in the most recent term than in any term in more than a century. Sixty-nine cases resulted in decision last year. Chemerinsky expects even fewer this year. He wonders whether this is a function of the new justices' learning to work together before fully hitting stride.

As for the cases decided by the Court, Chemerinsky regards this not as the Roberts' Court, but as the Kennedy Court. Kennedy voted with a 5-4 majoriy 8 times in the past year; Kennedy was the only justice to be in the majority all eight times. Savvy practitioners know that Kennedy's vote is the swing vote.

In First Amendment cases, Chemerinsky shared the gloom of J. Michael McGuinness, an employment lawyer from Elizabethtown, North Carolina, who also spoke at the conference. Both view almost all speech by public employees made in the course of employment as no longer protected in the wake of Garcetti iv. Cabellos, 126 S.Ct. 1951 (2006). However, the at least one case in the Second Circuit challenges that doom and gloom: Barclay v. Hughes, et al., recently survived summary judgment in the District of Connecticut. In that case, the plaintiff was a nurse at a psyhiatric hospital who complained about imporper restraints and contact with patients. Thereafter, she was disciplined. It is a case litigated by my firm and is expected to go to trial this summer.

The case of Morse v. Frederick, as yet undecided, could shed new light on qualified immunity. In this case, a student was suspended for posting a sign that read "Bong Hits 4 Jesus" along a parade route. Chemerinsky wonders whether this case will yield a more aggressive qualified immunity standard which encourages courts to decide the immunity issues without reaching the underlying merits of the claims.

An underreported case is Wallace v. Kato, 127 S.Ct. 1091 (2007), holding that the statute of limitations in a false arrest claim accrues at the time of the arrest, and not at the time the case is disposed of. This rule has not yet been applied to malicious prosecution claims and most likely cannot be as a key element of a malicious prosecution is favorable termination.

In general, I've never been much on going to CLE events. What law I know I learned in the trenches. The Georgetown seminar changed my perspective. It even made me less cynical about law professors. It was nice to see areas of law in which I practice discussed in clear, doctrinal terms, uncluttered by the often irrational demands of clients.

I am not looking for a CLE seminar on the federal Sentencing Guidelines. The Guidelines may not be mandatory any longer, but they still set the terms of sentencing in federal criminal cases.