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KENNETH L. WAINSTEIN U.S. Attorney for the District of Columbia The Supreme Court’s March decision in Crawford v. Washington was a surprising and significant development for this office. The opinion threw a curve ball to our domestic violence program. In a typical domestic violence case, a victim telephones 911 and reports an assault. When the police respond and take a statement, the victim frequently identifies a partner or relative as the abuser. All too often, however, victims of domestic violence become reluctant witnesses by the time of trial. Some return to the violent relationship; some assert spousal privilege; others simply fail to appear for trial, thus perpetuating a cycle of violence that traumatizes both the adults and children in a household. Many such cases were routinely dismissed for want of prosecution until innovative prosecutors — including Robert Spagnoletti, our former sex offense/ domestic violence section chief and current D.C. attorney general — realized that the rules of evidence permitted prosecution without the victim’s cooperation, through use of the victim’s “excited utterances” made on a 911 call or to the police. This approach was perfectly legal under the Supreme Court’s interpretation of the confrontation clause in Ohio v. Roberts (1980). In Crawford, the Court altered its interpretation of the confrontation clause to conclude that the Sixth Amendment prohibits the introduction of “testimonial” out-of-court statements of nontestifying witnesses. However, the opinion did not define “testimonial hearsay” nor indicate whether it encompasses “excited utterances.” Defense counsel are now using Crawford to argue that we can no longer prosecute domestic violence cases without testimony from the victim or other witnesses. Fortunately, a growing number of trial judges have concluded that statements made in 911 calls and in response to on-the-scene investigatory questioning are not “testimonial” and are therefore admissible despite the witness’s unavailability for cross-examination at trial.
EUGENE R. FIDELL Partner Feldesman Tucker Leifer Fidell Two developments run neck-and-neck in the competition for the biggest surprise of 2004 in military law. First, despite three years of preparation, the Defense Department was still not in a position to conduct military commissions at Guantánamo Bay that stood a chance of fostering public confidence in the administration of justice. Several of the military officers handpicked to serve as commission members proved to be subject to valid challenges for cause. Substantial questions were raised — even by the prosecution — as to the selection of the retired Army military judge who was handpicked to preside. Matters as simple and predictable as the need for competent translation capabilities proved to be a major source of problems as the first prehearing sessions began. Less surprising, but still noteworthy, is the energy and independence displayed by military defense counsel before the commissions. Working closely with civilian attorneys, those career uniformed lawyers successfully — at least for the moment — invoked the jurisdiction of the federal courts and brought the military commissions to a grinding halt. The other 2004 surprise involves the Bush administration’s internal deliberations over the use of torture — both its willingness to seriously consider the idea and its failure to monitor actual practices in the field. Military lawyers — already offended at the conflation of traditional military justice with the military commissions — have been appalled at the emerging Niagara of internal documents seeking either to legitimate dangerous practices we would never tolerate if undertaken by other countries or to immunize from prosecution federal officials who authorize or employ those practices. Here again, uniformed lawyers — typically unsung or stereotyped in our profession — deserve to be praised for raising questions that needed to be raised.
ROBIN CONRAD Senior Vice President National Chamber Litigation Center The most surprising development of 2004 is that, while the threat of class action litigation continues to drain significant time and resources from American business, the Supreme Court has failed to resolve raging circuit splits over class certification. The Court has been presented with compelling petitions challenging the certification of damages classes using Federal Rule of Civil Procedure 23(b)(2), the less rigorous rule designed for injunctive relief disputes, rather than the more rigorous Rule 23(b)(3), ordinarily applied to damages cases. In 1994, the Supreme Court suggested doubt about whether such a use of Rule 23(b)(2) can ever be proper, and the appeals courts have disagreed about whether and how to use Rule 23(b)(2) in cases involving damages claims. But the Supreme Court this year again passed up an opportunity to resolve the conflict. The Court also opted in 2004 not to decide whether special choice-of-law rules that would apply only to class actions can constitutionally be used to facilitate certification of a nationwide class. And the Court has denied petitions challenging class certification that relied on the plaintiffs’ allegations alone without the necessary findings explicitly required by Rule 23(b)(3). There are circuit conflicts on this issue, which a pending petition from the 11th Circuit offers the Court another chance to resolve. Congress promulgated Rule 23(f) — which allows permissive interlocutory appeals from class certification decisions — in 1998 in recognition of the practical importance of class certification. Because it multiplies the stakes manyfold, certification of a class greatly increases settlement pressure on defendants and causes some judges to cut corners and shift burdens — thus the need for immediate and searching appellate scrutiny. Most appeals courts have gotten the message and have reviewed class certification orders in appropriate cases. It is surprising that the Supreme Court has not yet heeded the same message.
PAUL BUTLER Professor George Washington University Law School Race was not a big issue in 2004. That counts as very surprising in a year that included both a hotly contested presidential election and the prosecution of a famous black athlete for raping a white woman. Whether the inattention suggests progress in race relations is a whole other question. In recent elections when Democrats and Republicans have gone at each other like yard dogs, often they’ve battered black legal and political aspirations. This year, however, neither George W. Bush nor John Kerry played the race card. There was no Willie Horton, no “welfare queen,” no Sister Souljah. Hispanics surpassed African-Americans as the largest minority, but they apparently didn’t inherit the role of designated whipping boy. Both parties needed their votes too badly. An African-American was not even Criminal of the Year. Black men usually have that title locked down, thanks to the media. This year, Kobe Bryant only placed third. (Yes, the sexual assault charges were dismissed, but that’s just a technicality. You don’t have to be found guilty to be Criminal of the Year. Just ask reigning 1994-95 champ Orenthal James Simpson.) This year, white people earned the title fair and square. The 2004 tiara goes to Martha Stewart. Scott Peterson is first runner-up. Race did not go away. It was, for better or worse, simply not the focus of attention. In the national election, blacks complained that their issues, including gross disparities in employment, health care, and incarceration, were ignored. Bush became the first president never to meet with the NAACP. Kerry attended a lot of black churches, but his close advisers were almost exclusively white. Still the good news is that Karl Rove, whom Bush credited for his re-election, is not Lee Atwater. Atwater was the Republican strategist who exploited white concerns about black crime, affirmative action, and integration to win election for Ronald Reagan and George H.W. Bush. Karl Rove is, however, still Karl Rove. His candidate prevailed by persuading voters that the best response to terrorism was to invade an Arab country, regardless of whether that country had anything to do with the Sept. 11 attacks. And that the biggest domestic threat to homeland security is same-sex marriage. So gays and Muslims are the new blacks. At least for the moment. God bless America! And Happy New Year!
DIXIE L. JOHNSON Partner Fried, Frank, Harris, Shriver & Jacobson In the ongoing stream of high-profile enforcement actions, the Securities and Exchange Commission’s increased focus on lawyers was the most surprising securities law development in 2004. The SEC charged lawyers for rendering inappropriate disclosure advice, failing to tell audit committees or auditors important information, rendering “false and misleading” legal opinions, and, in one instance, coaching witnesses to answer government questions without disclosing particular facts. The SEC also fined companies sums ranging from $7.5 million to $25 million for “failure to cooperate” with SEC investigations — for example, by not making complete and timely document productions, not preserving documents subject to subpoena, reporting incorrectly to the SEC staff the status of the production and availability of certain documents, and engaging in “dilatory tactics.” And the SEC’s director of enforcement has publicly foreshadowed additional enforcement action against individual lawyers involved in internal investigations. In “the old days,” if a lawyer was “acting as a lawyer” and rendering legal advice to his or her client, the SEC generally focused on the decisions made by the client after receiving that advice. The lawyer usually came under scrutiny only if the client asserted a reliance-on-counsel defense. Also in “the old days,” conduct during an investigation would be viewed with a mindful eye toward the defense lawyer’s ethical obligation to zealously assert the client’s position under the rules of the adversary system. If there was obstruction of justice, then, of course, a criminal referral would be made. But missed deadlines and failed good-faith efforts to search for documents were not the subject of public criticism and monetary penalties, even in extreme cases. The SEC has made it clear that these are not “the old days.”
SOLVEIG SINGLETON Senior Adjunct Fellow Progress & Freedom Foundation The big surprise of the year in intellectual property was the proposed Inducing Infringement of Copyrights Act — though not for the reasons that most will suppose. The Induce Act addressed the problem of peer-to-peer (P2P) downloading of copyrighted material online; it contemplated liability for inducing someone to infringe copyright. Many techies greeted the bill with alarm; others watched in silence (notable in itself). Ultimately, the Induce Act was just a weather balloon — revealing of the IP climate, but not the alien spaceship that blog readers might think. One blip revealed by the Induce debate is legal academics’ failure to recognize that protecting content online is hard. Markets normally adapt fine to new technology. But it’s not clear how they can adjust when the devices — statutory, contractual, or technological — that they traditionally rely on to redraw boundaries don’t work. It is one thing to call for new business models, another thing to actually create one. No one wants to ban P2P technology. One option is to impose liability on the especially culpable, as suggested by evidence of mental state. This is what the Induce Act was trying to do. Although the bill’s language ultimately remained too broad, its method was not alien to the law. The Induce debate also revealed the desperate need for better scholarship and less activism. For example, except for one computer science professor, few commentators discussed inducement liability in patent law and the implications for copyright. It turns out that there is a rich legal history here to explore. So ultimately the surprise of the Induce Act is that it shouldn’t have been a surprise.
JOHN C. KEENEY JR. President D.C. Bar The increasing globalization of issues relating to local authorization to practice law has been one of the biggest surprises facing me as D.C. Bar president. A traditionally local concern now has international ramifications as lawyers increasingly do business around the world. In November, on behalf of the 79,000 members of the D.C. Bar, I and others met with the Office of the U.S. Trade Representative on this subject. The USTR handles ongoing negotiations under the General Agreement on Trade and Services that address (among other issues) the removal of national barriers to legal services. The goal is “fly in, fly out” permission for EU lawyers to practice here temporarily and for American lawyers to practice temporarily in the European Union. Current D.C. rules permit fly-in, fly-out for the EU lawyer under Rule 49, which exempts occasional and incidental practice from the definition of the unauthorized practice of law. The local Committee on Unauthorized Practice of Law reaffirmed this interpretation on Oct. 15. Unfortunately, the reciprocal permission for D.C. lawyers to practice in the European Union is not as well-established. Still to be discussed in May 2005 negotiations is the need for client protection through reciprocal discipline such that EU lawyers who make mistakes in the District would be disciplined in their home country to the same extent as if they had made mistakes in their home country. The Transnational Legal Practice Committee of the American Bar Association’s Section of International Law and Practice organized the November meeting and is serving as the clearinghouse on this issue. The committee is also looking into the related matter of licensing foreign legal consultants, also already permitted under D.C. Rule 46.
WAYNE R. COHEN President Trial Lawyers Association of Metropolitan Washington, D.C. The most surprising development in 2004 has been the public’s misconception about the need for medical malpractice reform. There is a medical malpractice crisis, but it has been caused by malpractice insurers, not jury awards. The business of insuring doctors is, for the most part, immensely profitable. However, these insurers lost big money in the stock market, and now they are passing those losses on to doctors through their malpractice premiums. That is why premiums have gone through the roof. Capping jury awards does not lower malpractice premiums. To the contrary, states with caps on damages have average insurance premiums that are 9.8 percent higher than insurance premiums in states without caps (according to Medical Liability Monitor, October 2004). Doctors in states with caps have actually suffered a significantly larger increase in insurance costs than doctors in states without caps (according to the Weiss Report, June 3, 2003). In 2004, the insurance companies managed to turn this into a fight between lawyers and doctors. In reality, it is a fight between the victims of medical mistakes and the insurance companies. Weeks ago, I met with the parents of a toddler who was the victim of a catastrophic medical error. The case arose in a jurisdiction where damages are capped. The dad asked how it could be that his daughter, who will suffer for the rest of her life, can’t even receive enough money to pay all her medical bills and compensate her for her injuries. In 2005, I hope members of the public will ask one important question: If a doctor makes a mistake in my care, will I get fair and complete compensation?
ROGER PILON Vice President for Legal Affairs Cato Institute In the constitutional area — where politics is most likely to trump law — few developments surprise any longer. But from the Cato Institute’s libertarian perspective, the Supreme Court’s last term did surprise. Our annual Cato Supreme Court Review usually finds a few decisions coming out right. Yet this year, out of 14 essays treating particular cases (most came down in 2004), only one found that the Court got it right. Crawford v. Washington restored the confrontation clause at last. Otherwise, it was mighty bleak. Take Hiibel v. Sixth Judicial District Court of Nevada. If an officer with “reasonable suspicion” questions you, you must answer; but if your answer incriminates you, you may then remain silent. Or Maryland v. Pringle, which eviscerated the individualized conception of probable cause. To be sure, the war cases — Hamdi v. Rumsfeld, Rumsfeld v. Padilla, and Rasul v. Bush — put something of a brake on the president’s extraordinarily broad claims about executive power. But the opinions were so vague that they could be read just as one wanted — which is exactly what the administration has done. We had hoped that the Court’s recent revival of federalism would do it credit again. Alas, in Sabri v. United States, not only did the Court miss a chance to reinvigorate the necessary-and-proper clause, but also it continued to speak of the chimerical “spending clause,” by which it meant the taxing clause. In this same vein, the title that Robert Levy gave his essay on Tennessee v. Lane says it all: “How Illegitimate Power Negated Non-Existent Immunity.” But can any opinion beat McConnell v. Federal Election Commission for sheer inscrutability — to say nothing of error? Perhaps the best that can be said is that it came down in only 298 pages, compared with the lower court’s 1,638. Thus do we measure progress.
DEBRA S. KATZ Partner Bernabei & Katz On Oct. 22, President George W. Bush finally had the opportunity to sign the Civil Rights Tax Relief Act — legislation that had been stuck in Congress for many years even as it enjoyed bipartisan support. The law bars double taxation of attorney fees paid on behalf of those who win or settle employment discrimination, whistleblower, and related cases. Under the CRTRA, individuals who settle or win such cases can deduct attorney fees from their gross income for income tax purposes. Their lawyers will still owe taxes on the fees they are paid. Previously, the Internal Revenue Service and a majority of circuit courts that had considered the issue had taken the position that individuals should be taxed on both the amount received as compensation for unlawful discrimination and the fees and expenses paid to attorneys. The case of Chicago police officer Cynthia Spina, detailed in The New York Times, illustrated the unfairness of the resulting “double taxation” and provided powerful justification for the CRTRA. Spina sued her employer for discrimination, sexual harassment, and retaliation. A jury awarded her $3 million in damages, which was later cut to $300,000, the statutory cap for Title VII claims brought against large employers. The court awarded attorney fees in excess of $850,000. As a result, Spina may be forced to pay the IRS her entire award plus another $100,000. Double taxation of attorney fees was not only tremendously unfair to civil rights litigants, but also raised costs for employers as plaintiffs attorneys demanded settlements that were sufficient to ensure that taxes would not render any victory moot (or worse). In addition, double taxation created a perverse disincentive to bring such civil rights suits. The CRTRA applies prospectively only — to moneys or judgments paid after Oct. 22. Hopefully, the Supreme Court will award this same tax relief for earlier settlements and awards in two pending cases: Commissioner v. Banks and Commissioner v. Banaitis.
RAND L. ALLEN Partner Wiley Rein & Fielding For everyone in the business of government contracts (including, and maybe even especially, Boeing), the most surprising development in 2004 was the post-plea statement by the Air Force’s former chief acquisition official, Darleen Druyun. In that October statement, Druyun claimed that she had favored Boeing in several high-dollar contract actions because of her “perceived indebtedness” to the company for hiring her daughter and son-in-law, along with her desire to be employed by Boeing. The conduct Druyun described — which was not directly related to the charges to which she pleaded guilty in April — seemed out of character at best. Druyun had always been perceived as an extremely tough negotiator when it came to protecting the government’s interests in awarding contracts. Druyun’s dramatic fall from grace was the latest of several high-profile incidents that presage increased legal risks for government contractors. Such risks can clearly be expected in the following areas: • Corporate accountability and ethics generally (see Enron and WorldCom), as reflected in the suspension or debarment from government contracting of companies engaged in accounting improprieties that had nothing to do with those contracts. • Accounting for costs and auditing under contracts (see Halliburton and others doing business in Iraq). • Fair and open competition for federal business (see investigations of abuses of the General Services Administration’s Multiple Award Schedule program after two contractors providing interrogation services at Abu Ghraib prison were found to be doing so pursuant to Department of the Interior orders under a GSA contract for information technology services). Our business is back on the front page, and that is not a good development. Government contractors can expect regulators and enforcers, egged on by Congress and the media, to be on heightened alert and on the prowl in 2005. Editor’s note: Allen represents Boeing in certain matters arising out of the Druyun case.
SHELLEY BRODERICK Dean David A. Clarke School of Law University of the District of Columbia As the proverbial card-carrying member of the American Civil Liberties Union, and a board member for the ACLU of the National Capital Area, last year I was delighted to join our law review in hosting a symposium entitled “Defending Civil Liberties in the Nation’s Capital Post-September 11th.” Speaker after speaker decried the Bush administration’s decisions to refuse judicial review under the federal habeas corpus statute for both aliens imprisoned in Guantánamo Bay, and American citizens held as enemy combatants in the United States. In its brief in Hamdi v. Rumsfeld, encouraging the Supreme Court to uphold its views, the administration claimed that these were “quintessentially military judgements, representing a core exercise of the commander-in-chief authority” and therefore were “entitled to the utmost deference by a court.” I am usually an optimistic person, but it seemed all too reasonable to assume that the Supreme Court would rule in favor of the administration. After all, the president is typically afforded great deference in time of war — remember Ex parte Quirin (1942) and Korematsu v. United States (1944)? Terrorism is a whole new kind of war. Civil liberties have taken a beating on every front with passage of the Patriot Act. And everyone, myself included, has frightening memories of 9/11. So I was pleased and certainly surprised when the Supreme Court — ruling in Hamdi, Rumsfeld v. Padilla, and Rasul v. Bush this past June — roundly rejected the Bush administration’s assertions of claims of extraordinary and unreviewable executive power in the war on terror. Civil liberties, it turned out, are not quite dead in America.

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