During the past year, practitioners, academics and a few senators have weighed in on a range of legal issues in these pages. The U.S. Supreme Court figured prominently, from the retirement of Justice John Paul Stevens and the nomination of Elena Kagan to some controverisal cases. Other topics tackled included the treatment of terrorism suspects and the state of the profession. Here are some highlights.



Professor at Duke Law School, Jan. 18

Corporations cannot vote. Corporations cannot hold office. And it has long been our law that corporations have no rights to fund political candidates. That has been very good law. But the law restricting corporate campaign contributions has now been drawn into question and the U.S. Supreme Court is reconsidering it in Citizens United v. FEC. For an institution purportedly disavowing “judicial activism,” reconsideration of the settled issue would be a betrayal of the commitments so solemnly uttered by most of the justices as they sought confirmation by the Senate. And it would be a very harmful mistake without benign compensations to citizens who vote.…

[A] corporation is not a citizen. It cannot be imprisoned for serious criminal offenses. It cannot lose more of its owners’ money than it has been entrusted with. Such features are very useful to business firms and charitable organizations owning property or making contracts. But no corporation has or can be given the motives of dutiful citizens. [Read full text.]

Partners at Sandler, Reiff & Young, Feb. 1

The U.S. Supreme Court’s decision in Citizens United v. FEC was certainly a blockbuster. And if you followed the past week’s media coverage and listened to the pundits, the implications seem pretty clear: A wave of unlimited corporate cash is about to flood our political process, benefiting big business and Republicans, and making the 2010 election cycle even more difficult for Democrats and progressives than it already was. Right?

Not so fast. The consequences of changes in the campaign finance laws — both legislative and judicial — have proven notoriously difficult to predict. This landmark decision — important as it is — will be no exception. Although Citizens United will certainly alter the regulation of campaign spending in significant ways, it’s easy to overstate the extent to which it actually changed the rules and it’s hard to foresee the implications with any real confidence. [Read full text.]

Then-specialist in constitutional law at the Law Library of Congress, Feb. 22

Writing for the U.S. Supreme Court in Citizens United v. FEC, Justice Anthony Kennedy claimed that judicial rulings on campaign finance law are final unless the Court changes its mind or the Constitution is amended.…

Decide, yes; final, no.…

There are no grounds for Congress to defer to the Court as the “last word” on constitutional meaning. In the area of campaign finance, the legislative branch has equal, if not superior, competence, authority and legitimacy. Instead of trying to analyze case law, Congress should start from scratch and produce a coherent, principled, evidence-based and intelligible law on campaign finance.…

Careful and persuasive analysis by lawmakers can send this message to the Court: “With all respect, you got it wrong. We are passing new legislation to regulate money in political campaigns. The level of spending is corrupting our political system, draining power from the people and weakening Congress as an independent branch.” [Read full text.]

Associate professor at Touro College Jacob D. Fuchsberg Law Center, April 12

When Justice John Paul Stevens announced his retirement on April 9, the news was accompanied by the inevitable counting of votes on the U.S. Supreme Court. The conventional wisdom is that Stevens’ retirement means the departure of the most senior liberal justice from the Court and that Stevens’ successor will not substantially change the political orientation of the conservative Court currently led by Chief Justice John Roberts Jr.…

Nevertheless, the focus on the political implications of Stevens’ retirement obscures a more significant aspect to his departure: the loss of the Supreme Court’s pre-eminent common law lawyer. Since his appointment to the Court in 1975, Stevens has decided cases in the manner of the quintessential common law judge. He generally decides cases narrowly, with careful attention to the facts of the particular case and primary attention paid to the contentions of the litigants. [Read full text.]

Associate professor at Columbia Law School and former law clerk for Justice John Paul Stevens, June 14

One of the overlooked themes to have emerged on the Roberts Court is an apparent hostility toward the basic rights of individuals to pursue their claims in federal court. The recent decision to shut the front entrance to the Supreme Court building is a powerful metaphor for the current Court’s increasing refusal to let litigants — especially plaintiffs — have their day in court. [Read full text.]

Professor at Roanoke College and lecturer at Washington and Lee University School of Law, June 21

Given the duties assigned to law clerks, and the potential for undue influence, it is surprising that the Senate Judiciary Committee has never thoroughly discussed the topic of law clerk hiring and utilization practices during Supreme Court confirmation hearings.…Whether a nominee is committed to breaking the ethnic and gender disparity that has plagued the hiring of law clerks, and whether a nominee plans on writing her own opinions and reading cert. petitions, are issues relevant to the nominee’s integrity and fitness. In the upcoming confirmation hearings, I urge the members of the Senate Judiciary Committee to take the time to question Kagan about the institutional rules that she intends to adopt in her chambers regarding the selection and employment of law clerks — and whether these rules will protect against law clerks wielding undue levels of influence in her chambers. [Read full text.]

Professor at Harvard Law School and former co-clerk with Elena Kagan for Justice Thurgood Marshall, July 26

The ghost of Thurgood Marshall was palpably present in the Judiciary Committee chamber during the hearings on the confirmation of U.S. Supreme Court nominee Elena Kagan.…Senators of both parties explored the strong connection between Elena Kagan and Thurgood Marshall. Kagan served as Marshall’s law clerk early in her legal career, and she has written eloquently of her admiration for his work on the bench, calling it “a thing of glory.”…

For Republican senators, however, Kagan’s connection to Marshall was…an opportunity to try to brand Kagan with the loose epithet of “judicial activist.” By this charge,…[they] appeared to imply a judge who ignores law and precedent to reach preferred results. This slur on Marshall may well have been poor strategy…But it also reflects a profound ignorance of Marshall the jurist and represents a deep distortion of his judicial legacy.…

Unlike many activists in the cause of justice for oppressed people, Marshall did not engage in protests, peaceful or otherwise.…Rather, Marshall used only one weapon in his struggle — the law. Marshall sought to have the courts hold the nation to the promises embodied in the Constitution’s great promise of “the equal protection of the laws.” The victories that Marshall won through constitutional litigation gave him an abiding faith in the law and the judiciary sworn to protect it. [Read full text.]

Member of the Senate Judiciary Committee, Nov. 1

Sadly, the current Supreme Court’s conservative wing has been flying each of [five objective red flags that could signal judicial activism.]…First, the conservative bloc has failed to respect the legislative process provided for by the Constitution.…Second, the Court’s conservative bloc has shown little respect for precedent, whether long-standing or recent, with some decisions reversed for no apparent reason other than a change in the composition of the Court.…Third, the current conservative bloc on the Supreme Court has repeatedly issued 5-4 decisions that dramatically altered the legal landscape.…Fourth, clearly discernible patterns have emerged from the decisions of the conservative bloc of the Supreme Court. Corporations have prevailed at striking rates. The cause of social conservatism has made pronounced strides with respect to abortion and gun issues.Fifth, the conservative bloc has selectively ignored the rules of restraint that govern appellate decision-making.  [Read full text.]


Retired 3D Circuit judges, March 22

Attacking Congress for what it fails to do is a timeless Washington tradition. But some attacks are misplaced, and that includes charges leveled recently by the Brookings Institution, which faulted Congress for failing to write a detailed code specifying the procedures courts must use as they decide who at Guantánamo Bay, Cuba, may be lawfully detained.…

Those arguing for such new laws misunderstand both the limits of the legislative function and the nature of the judicial process. Determining whether a prisoner’s detention is lawful has always been a judicial function, and a moment’s reflection is enough to see that it could hardly be otherwise. The wide range of conduct that could subject a person to lawful detention simply cannot be reduced to a statute. [Read full text.]

Former acting general counsel of the U.S. Department of Homeland Security, March 22

The decision to prosecute terrorists like Khalid Sheik Mohammed in U.S. civilian courts comes with risks. The Obama administration has discussed some of the more obvious ones — escape, attack, compromise of U.S. intelligence — but has argued that the government can control or neutralize those risks.

Let’s assume they’re right. The administration still hasn’t acknowledged — let alone provided a plan to deal with — one of the greatest hazards: that terrorists found not guilty or sentenced to a term less than life imprisonment will be released, not to Saudi Arabia or Yemen, but onto the streets of the United States. Because of immigration law and international obligations, hardened jihadists currently at Guantánamo Bay, Cuba, shipped to the United States for trial might be here to stay. [Read full text.]


Then-incoming president of the American Bar Association, Aug. 2

There is no question that legislators confront hard choices in times of recession, but it is time for our lawmakers to recognize the value of our judicial branch as more than a line item in a budget. A strong judicial branch is essential to maintaining responsible government and protecting citizens’ rights….

The financial crisis challenges us all, but it also presents an opportunity for states and courts to find new ways to reduce spending while maintaining an accessible forum for efficient and effective justice.…We ask lawyers everywhere to join that campaign — not for the sake of the lawyers, not for the sake of the judges or the bailiffs or the court reporters. We ask it for the sake of the public, for the future of our democracy and for the rule of law. [Read full text.]

Attorneys, Brennan Center for Justice, Sept. 6

Members of Congress aren’t the only ones sweating about their prospects in November. An unprecedented number of incumbent state judges are facing a flood of special interest dollars aiming to kick them off the bench. Money-drenched judicial elections undermine fair and impartial courts: The justice system suffers when judges are afraid that a bang of the gavel might unleash a barrage of negative attack ads or when they make decisions with any eye on their campaign coffers instead of by applying the law to the facts of a case. [Read full text.]


Chairman and global managing partner, K&L Gates, Feb. 15

Law is a mature profession and an immature industry. Nowhere is the immaturity more evident than in the way we recruit talent.

The process by which law firms recruit from law schools fails to serve the interests of law students, law schools or employers. The enabler of this system is NALP, an organization founded decades ago as the National Association for Law Placement. It now refers to itself as the “Association for Legal Career Professionals.” This is fitting since “Legal Career Professionals” primarily benefit from its existence. Designed beneficially as an organizational meeting place for law schools and employers, with law students as the beneficiaries, it has taken on an institutional life of its own and lost sight of its laudable mission.

NALP is, and for some time has been, a market imperfection — no more and no less. For the common good, it should be abolished, and we should start from scratch. [Read full text.]

Professors at Stanford Law School, July 19

If the predominant objective of pro bono work is to promote the public good, then the current structure of large-firm programs is not ideally suited to that end. As our survey makes clear, their support is clearly linked to professional objectives: training, recruitment and reputation as determined by rankings. Many firms seem to operate on the assumption that any unpaid service is a good in itself, and that its quality or value need not be systematically assessed unless someone actually complains. Yet this reactive approach is better suited to commercial practice than to charitable settings, where recipients of aid may lack the knowledge or sense of entitlement to express concerns. [Read full text.]

Dean of Duke Law School, Aug. 9

The downturn in the legal economy has been hard on many new and young lawyers. They have faced lengthy deferrals and withdrawals of job offers, layoffs, shrinking job prospects and lower salaries. While unwelcome, these new burdens are at least understandable; they reflect the laws of supply and demand at a time when there is simply less legal work to go around. What is not understandable is the surprising amount of criticism heaped upon younger lawyers, offered as if to justify placing a disproportionate share of the economic downturn on their shoulders.…

The criticism comes from law firm managers, in-house counsel and former lawyers who now comment on the legal profession. They most likely represent a minority view, but they are vocal. They say that clients are no longer willing to pay for the work of young associates because their work is “worthless.” We might expect clients to make any argument that could lead to a lower bill, particularly during an economic downturn. But it is wrong and surprising for experienced lawyers inside and outside of firms to acquiesce in, even reinforce, this line of argument. [Read full text.]