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ANOTHER DAY, ANOTHER CASE TO THE SUPREME COURT U.S. District Judge Charles Breyer is seeing his third case in as many years go all the way up to the U.S. Supreme Court. “Well, I am in the Ninth Circuit,” Breyer joked Friday, a reference to the high number of cases the court hears from the Ninth Circuit U.S. Court of Appeals. Last week the court granted certiorari in a wrongful death suit brought under the Warsaw Convention. Breyer ordered Olympic Airways to pay $1.4 million to the widow of a man who asphyxiated on board a transatlantic flight after inhaling secondhand smoke. But the case isn’t about smoking or tort reform. It’s about what constitutes an “accident” under the Warsaw Convention, which governs the laws of airplane travel. Does it cover only airplane crashes, or other catastrophes as well? Breyer’s record is mixed so far. In one case, the justices sided unanimously with him. In another, they all voted against him. This case is not likely to be as high profile as the other two. In one, Breyer’s initial ruling that medical marijuana patients could not use a medical necessity defense was upheld. An injunction against a Housing and Urban Development policy allowing immediate evictions for any drug-related activity was reversed. But not all the justices were voting in those cases. Breyer’s brother, Justice Stephen Breyer, recuses himself when the court considers his younger brother’s cases. Does he really, though? Would that explain how so many of Charles Breyer’s cases end up on the docket? “No,” Breyer said reassuringly. “He actually leaves the room.” – Jason Hoppin HIGH FINANCE SACRAMENTO — A press release announcing the recent legislative hearing on federal pre-emption in banking regulation had a deceptively simple title. “Banking chairs seek stronger consumer protection” sounded like a good idea to many legislators — and to most of the experts they called to testify — but as quickly became apparent, there is no easy way for state regulators to tackle a problem that by definition is largely out of their hands. Recently, when the state has sought tighter control, banks have cried foul and the feds, mainly the Office of the Comptroller of the Currency, have backed them up. Legislators seemed frustrated that they couldn’t just outlaw federal pre-emption. If they did, of course, their efforts would just be pre-empted. State Attorney General Bill Lockyer, the first witness to testify, laid out the situation: “One of the unfortunate things is that we fight these battles in federal court.” And in federal court, judges like to uphold federal law. That didn’t stop suggestions on how the state could try to get a handle on banks. Several people, including Lockyer, proposed state politicians send a message to their federal counterparts to back off. One witness had a more creative approach. Besides a federal policy change, McGeorge School of Law professor Michael Malloy advocated using transactional law to regulate banks. “How likely is federal pre-emption if instead the state ‘regulation’ in substance and in form consisted of principles of ordinary contract law? Aside from such transborder activities as international contracts for the sale of goods, there is no federal law of contracts — historically significant or otherwise,” Malloy said. Such a tactic wouldn’t work for every situation, Malloy said, but “for some issues contract law may be a useful alternative to a direct regulatory confrontation.” – Jeff Chorney EVERY PENNY COUNTS Michael Newdow scored another win recently — this time, he got the Ninth Circuit U.S. Court of Appeals to order the losing party to pay him for the cost of successfully striking the words “under God” from the Pledge of Allegiance. Newdow said the amount is only about $500. But he thanked the court for granting his request because he was, admittedly, late in asking for the money. “It became somewhat confusing because of the en banc,” Newdow said. “Judge Goodwin cut me a break.” Senior Judge Alfred Goodwin is, of course, the author of the Ninth Circuit opinion striking use of “under God” during morning recitations of the Pledge at state-funded schools. The en banc to which Newdow referred was a court vote on whether to rehear the case with an 11-judge panel, a vote that failed. In part, Goodwin excused Newdow’s tardiness because of an unusual order staying the case after it caused a huge public outcry. Solicitor General Theodore Olson has asked the U.S. Supreme Court to grant certiorari, and even though Newdow won at the Ninth Circuit, he will urge that it be picked up as well. He is currently working on his brief. In addition, Newdow wants to argue the case himself — just as he did before the Ninth Circuit. – Jason Hoppin

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