The BLT: The Blog of Legal Times

Deceased Judge's Family Sues Law Firm for Infringement

The family of the late Donald Duvall, former chief administrative law judge for the International Trade Commission, filed a copyright infringement lawsuit against a Washington law firm yesterday accusing the firm of unlawfully taking credit for Duvall's work.

Duvall's widow, Kathryn Duvall, accused Washington-based Kenyon & Kenyon of conspiring to not give Duvall credit on the latest edition of a legal text he first wrote more than 20 years ago. In the complaint, filed in U.S. District Court for the District of Columbia, Kathryn Duvall called the firm's claims that the updated text no longer included her husband's writings "frivolous" and said the firm was trying to cut her family off from future royalties.

The firm and four individual attorneys are named as defendants. Partner Edward Colbert, who isn't a defendant, said that they were "taken aback" by the complaint. He said the publisher, and not Duvall or his family, owned the copyright to the text, and that the firm wrote the latest edition at the request of the publisher. The text had been "substantially altered" over the years, he added.

O'Connor Promotes and Defends Her Book at Wiley Rein

(l-r) Richard Wiley, Andrew McBride, Justice Sandra Day O'Connor, Peter Shields, and Bert Rein

Retired Supreme Court Justice Sandra Day O'Connor brought her book tour to the Washington law firm of Wiley Rein on Wednesday, shrugging off negative reviews and deflecting a question about her views on same-sex marriage.

"I do not give the court advice on pending cases," O'Connor said when asked how she would vote on the same-sex marriage cases argued last week before the court she left in 2006.

Wiley partner Andrew McBride, who clerked for O'Connor 25 years ago, introduced her to a large crowd in the firm's auditorium and engaged in a dialogue with her before she signed copies of her book Out of Order.

McBride said the book, which aims to humanize the court through anecdotes about the justices and court traditions through history, had gotten rave reviews. But O'Connor interjected that not all reviews were positive -- a clear reference to The New York Times review by reporter Adam Liptak, who panned it as "a disjointed collection of anodyne anecdotes and bar-association bromides."

In New Book, Scalia and Garner Attack Unprincipled Judicial Opinions

The latest book by Supreme Court Justice Antonin Scalia and legal writing guru Bryan Garner takes a skeptical look at judicial decisionmaking, criticizing judges who stray from the text in interpreting statutes and constitutional provisions.

Since the beginning of the Warren Court in the middle of the last century, they state, there has been a "breakdown" in the principles of judicial interpretation that has eroded public confidence in the rule of law. The criticism comes in the new book Reading Law: The Interpretation of Legal Texts. The book is scheduled for publication next week, but we've gotten a sneak peek. For a more detailed story on the book, go to The National Law Journal website.

The book is full of Scalia-esque critiques of Supreme Court decisions including Roe v. Wade and Lawrence v. Texas, though a disclaimer states that "nothing in this book prejudges cases that might come before the United States Supreme Court."

Constitution's Assembly Clause Underutilized, Author Argues at AEI Panel

Private groups wishing to protect their membership rolls from incursion by the federal government's enforcement of anti-discrimination statutes should look to the First Amendment's freedom of assembly clause as the basis for their defense, according to one Washington University in St. Louis School of Law professor.

Promoting his new book, "Liberty's Refuge: The Forgotten Freedom of Assembly" with a panel hosted Tuesday by the American Enterprise Institute and the Federalist Society, John Inazu argued that groups should employ the assembly clause to defend against discrimination charges first and foremost because "unlike association, [assembly] actually shows up in the text of the Constitution."

By "association," Inazu referred to a string of 20th century cases in which judges ruled that the government cannot force private groups to accept members who do not adhere to the organization's beliefs. These cases, for the most part, cited the freedom of association, an idea that appears nowhere in the text of the Constitution.

At Panel Discussion, Law Professors Criticize Power Given to International Agencies

Updated 5:20 p.m.

At a panel Thursday sponsored by the Federalist Society and the American Enterprise Institute, two law professors argued that increased reliance on international agencies to handle disputes between nations presents challenges to the U.S. Constitution in ways best solved by American politicians.

John Yoo of the University of California, Berkeley School of Law and Julian Ku of the Hofstra University Maurice A. Deane School of Law criticized the power given to organizations like the International Criminal Court, a main point of their new book, "Taming Globalization: International Law, the U.S. Constitution, and the New World Order."

Their argument hinges on the notion of a loss of American sovereignty caused by increased entanglements abroad, with too much power being taken from U.S. elected representatives and given to executive-appointed officials and the courts. In order to help lessen the negative impacts of this trend, the pair advocated the use of "mediating devices," such as eliminating the self execution of treaties and allocating power to implement international law to the states.

"Congress should first be allowed to say how the country is going to live up to its international commitments," Yoo said.

DOJ To Receive $17.2M Foreign Bribery Penalty From Device Maker

Medical device maker Biomet Inc. has agreed to pay a $17.2 million criminal penalty in a foreign bribery case, the U.S. Justice Department said today.

Biomet, represented by Kirkland & Ellis and Ropes & Gray, entered a deferred prosecution agreement (PDF) with federal prosecutors. The Indiana-based company also settled with the U.S. Securities and Exchange, agreeing to pay $4.4 million in disgorgement and $1.1 million in prejudgment interest.

The U.S. Securities and Exchange Commission said subsidiaries and agents of Biomet bribed public doctors in Argentina, Brazil and China for nearly a decade.

“Biomet’s misconduct came to light because of the government’s proactive investigation of bribery within the medical device industry,” Kara Novaco Brockmeyer, chief of the SEC enforcement division’s Foreign Corrupt Practices Act unit, said in a statement. “A company’s compliance and internal audit should be the first line of defense against corruption, not part of the problem.”

Kirkland’s Laurence Urgenson, a white-collar defense partner in the firm’s Washington office, and Asheesh Goel, a Ropes & Gray securities partner, declined to comment this afternoon on the deal reach with prosecutors and securities regulators. A Biomet spokesman was not immediately reached for comment.

Justice Department lawyers, including Kathleen Hamann, a Fraud Section trial attorney, said in court papers that Biomet and its subsidiaries made unlawful payments from 2000 to 2008 to public health care providers to secure business. DOJ said more than $1.5 million in direct and indirect corrupt payments were made during that time.

The criminal prosecution is part of a wider bribery investigation involving medical device companies. Johnson & Johnson, in addition to Smith & Nephew Inc., also paid criminal penalties and entered deferred prosecution agreements.

The Morning Wrap

Stepping Down: The DOJ's third highest-ranking official, Tom Perrelli, will leave his position in March. Perrelli told NPR that he wants to spend more time with his family.

Unanimous: The Supreme Court ruled unanimously Wednesday that there is a "ministerial exception" to employment discrimination when it comes to clergy. The National Law Journal's Tony Mauro has all the details.

Blocked: A Mississippi judge has temporarily halted the release of 21 prisoners pardoned by outgoing Governor Haley Barbour. The Associated Press reported that the state Attorney General believes Barbour may have violated the state constitution.

Whopper: A sheriff in Washington state who sued Burger King over emotional distress after a worker spit in his Whopper will get his day in court. The state Supreme Court will decide whether emotional distress is enough to constitute a lawsuit under the state's consumer protection law. The Seattle Post Intelligencer has the story. 

Roberts, Kagan Among Winners of Legal Writing Awards

The entertaining grammar lesson that Chief Justice John Roberts Jr. included in his March 1 decision in FCC v. AT&T did not just help win him unanimity among his voting colleagues. Today it also earned Roberts a legal writing award from The Green Bag, the unconventional law review that honors exemplary writing every year.

The issue in the case was whether the protection for "personal privacy" in the Freedom of Information Act extended to corporations like AT&T. In the process of rejecting that proposition, Roberts wrote that just because federal law has defined "person" to include corporations, that does not mean that "personal," the adjectival form of the word, also includes corporations. He offered several examples of noun-adjective discordance, such as crab and crabbed, corn and corny, crank and cranky. Clearly having fun, Roberts could not resist ending the opinion with: "We trust that AT&T will not take it personally."

Also winning in the category of judicial opinions is the late 7th Circuit judge Terence Evans, who amusingly dealt with the weighty trademark issues surrounding the quilted pattern of certain toilet paper brands in Georgia-Pacific Consumer Products v. Kimberly-Clark Corp. Seventh Circuit colleague Richard Posner also won for his more serious decision in the Alien Tort Statute case of Flomo v. Firestone Natural Rubber Co.

In the category of concurrences and dissents, Justice Elena Kagan was a winner for her forceful dissent in Arizona Christian School Tuition Organization v. Winn, an Establishment Clause case.

Book winners were: William Coleman, Counsel for the Situation; Clare Cushman, Courtwatchers: Eyewitness Accounts in Supreme Court History; and William Stuntz, The Collapse of American Criminal Justice.

Green Bag editor-in-chief Ross Davies said he was happy with the range of winning writings. "Every year I am struck by how much very good legal writing there is," he said. The full list of winners is here.

Note: the author of this post is one of dozens of members of the board of advisers that suggests nominees for the writing awards.

Anita Hill Joins Plaintiffs Firm Cohen Milstein In D.C.

Anita Hill announced today she is returning to Washington part time to take a position at the plaintiffs firm Cohen Milstein Sellers & Toll, saying she wants to merge her academic experience with the on-the-ground practice of civil rights litigation.

Hill, who teaches social policy, law and women's studies at Brandeis University outside Boston, will be of counsel in the civil rights and employment practice group. She said she was attracted to the firm's pursuit of class action litigation.

She will continue to teach at Brandeis, where her courses have recently included race and the law, and social justice and the Obama administration. Hill started at the firm earlier this month. She said she will be at Cohen Milstein in person as much as she is needed there and as her schedule allows.

In an interview Thursday afternoon, Hill, 54, said she wants to provide a unique perspective on what she described as "systemic" discrimination. Discrimination, she said, “is not just about individual’s behavior, one employer, or a manager, discriminating or treating an employee different.”

“I see it as a much larger problem than a single case or a single area of the law,” she said. “I think discrimination is complex and that it shows its face in many ways. I want to see what I can contribute when looking at cases. Is this an area that we have been overlooking? Perhaps economic inequality or cultural inequality that perhaps we haven’t thought about in addressing plaintiffs’ rights.”

At Brandeis, Hill has worked with economists, sociologists, historians and anthropologists. “What I am trying to do is build on that knowledge base and bring that to the practice,” she said.

Hill said she regularly receives letters and phone calls from people who express stories of inequality. Some are seeking legal help. Others share their personal experience.

“I can bring that conversation to the firm,” she said. “It’s not just me coming out with ivory tower ideas. I come in with a connection to people who are experiencing perhaps a violation of their rights or the sentiment their rights are being violated.”

Cohen Milstein name partner Joseph Sellers, who heads the firm’s civil rights and employment practice group, said Hill first approached him last summer about joining the firm. Sellers said he and Hill have had regular meetings since then.

Legal Groups Publish Guide to Becoming a Judge

Frustrated by the lack of centralized information on the process for becoming a federal judge, a coalition of legal groups has created its own booklet about the process.

With an electronic version and an initial printing of 10,000 copies, the legal groups are planning to distribute the booklet to law schools and young lawyers. The booklet explains the mechanics of the White House nomination process and the rigors of Senate confirmation, and it lays out the varied paths taken by six federal judges.

The legal groups, including several minority bar associations, are focusing on members of minority groups to try to diversify the next generation of judges.

“This is not something they teach you in law schools,” said Tina Matsuoka, executive director of the National Asian Pacific American Bar Association, one of the groups involved. Matsuoka, speaking at an event at Jones Day’s Washington office Tuesday night, said the booklet would be “immensely helpful” in answering questions for young lawyers.

D’Arcy Kemnitz, executive director of the National LGBT Bar Association, said young gay and lesbian lawyers face particular pressure not to become judges. She cited questions over whether former federal judge Vaughn Walker should have recused from a case over same-sex marriage in California because Walker has been in a longtime relationship with another man.

“We think these kinds of products are going to bring [potential judges] forward,” Kemnitz said of the booklet.

A smattering of other resources is available for aspiring judges. The American Judicature Society runs a Web site about judicial selection on the state level. The U.S. Senate Judiciary Committee’s Web site briefly explains its process and houses materials related to recent federal nominations. The conservative Federalist Society gathers information related to nominations debates. And in 1996, Alex Kozinski, chief judge of the U.S. Court of Appeals for the 9th Circuit, offered his ideas on the subject (PDF) in The National Law Journal.

Other groups involved in the latest effort include the American Constitution Society, which serves as a networking forum for liberal lawyers, and Justice at Stake, which works on judicial diversity and other issues. “There’s been a very poor job of reaching out to people at the beginning of their careers,” said Caroline Fredrickson, executive director of the American Constitution Society.

The booklet can be found here.