The BLT: The Blog of Legal Times

Write Like the Solicitor General

The style manual that guides the brief-writing of the U.S. solicitor general's office has been published for the first time, as we reported in Monday's edition of Supreme Court Brief, NLJ's subscription newsletter on the nation's highest court. We also covered the court's action Monday on National Security Agency telephone surveillance and a New York federal judge's requirement that the legal team in a class action case reflect the racial and gender makeup of the class. An interview with Stanford Law School professor Joseph Grundfest on the court's latest move that could cripple securities class actions rounds out the issue.

In last Wednesday's edition of the newsletter, we reported on arguments in a key labor relations case, and profiled Brian Matsui of Morrison & Foerster.  

U.S., Russia Continue Talks Over Return of Jewish Texts

The U.S. State Department is continuing to discuss with Russia the country's return of thousands of Jewish texts seized in the early 20th century, a lawyer fighting to retrieve the books and manuscripts told a Washington judge today.

The attorney, Nathan Lewin, who represents the Agudas Chasidei Chabad of the United States in its suit against Russia, was in Washington federal district court this morning to provide an update on the talks.

Notwithstanding the deterioration of relations, Lewin said—a reference to the dispute between Russia and the United States over asylum for Edward Snowden—the State Department remains "committed" to ongoing talks with counterparts in Russia. Lewin said the discussion could result in the return of the property in dispute.

U.S. District Judge Royce Lamberth in 2010 ordered Russia to return the collection, which includes some 12,000 books and manuscripts that the Soviet army took from the Nazis. Earlier this year, Lamberth imposed $50,000 daily contempt sanctions against Russia over the country's refusal to return the Jewish texts.

The Morning Wrap

ABA Punts: The American Bar Association wants more time to decide whether to move back by a month the law schools' nine-month-after-graduation employment statistic, The National Law Journal reports.

Waiting Game: Justices did not release decisions Monday in the "big three" cases of the term: affirmative action, voting rights and same-sex marriage. But Thursday is another day and more decisions are expected, The National Law Journal reports.

Stopping a Leak: Justice Department officials have started the process to charge National Security Agency leaker Edward Snowden with disclosing classified information, The New York Times reports.

Sotomayor Reports $1.9 Million in Income from Royalties

Supreme Court Justice Sonia Sotomayor's bestselling memoir about growing up in poverty has earned her more than $3 million, including $1.9 million in advances on royalties she received last year.

In her 2012 financial disclosure form released Friday, Sotomayor indicated she received $1 million in April, 2012 and $925,000 in December from the Knopf Doubleday Group, publishers of My Beloved World, which debuted in January of this year. Earlier, she had reported receiving a $1.2 million advance in 2010. She also listed more than $3,000 in reimbursements for book promotion expenses from the publisher in 2012.

The book, published in English and Spanish, has been on bestseller lists on and off since it came out. With numerous media and personal appearances nationwide, she has become a public personality like no other justice in recent years. In a recent speech, Sotomayor said the publicity surrounding the book as well as the scrutiny she receives as a justice have changed her views about freedom, and given her new appreciation of the importance of privacy.

Deceased Judge's Family Sues Law Firm for Infringement

Updated 6/20/13

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.