Senate Judicial Confirmations

With the Senate ending filibusters against federal district court and court of appeals nominees, another rule remains unchanged.  The Senators of the home state of the judicial nominee can block a nomination under the blue slip rule.  This New York Times article describes the practice.


The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler

Interesting Law Review Article Author

The story in the link below is about an atypical law review article author to put it mildly.  

http://www.thestate.com/2013/08/31/2952089/sc-inmate-critiques-law-from-inside.html

The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler

Baseball - Biogenesis

Today at 4 PM baseball's non-waiver trading deadline passed with no decision on suspensions for the players implicated in dealings with Biogenesis.  Biogenesis allegedly supplied the players with performance enhancing drugs that are banned.  The uncertainty led to at least one trade in the last few days in case the suspensions go through.  Generally players can appeal suspensions and continue playing and suspensions are set depending on the number of previous violations, but in this instance Major League Baseball (MLB) pursued suspensions under a separate part of the collective bargaining agreement.  That part of the agreement allows MLB to suspend players for more than the usual set number of games.  This gave MLB leverage to seek plea bargains with the players where the players would accept shorter suspension in exchange for not appealing the suspension.

MLB sued Biogenesis for intentional tortious interference with its player's contracts by providing them substances banned under those contracts.  Office of the Commissioner of Baseball v. Biogenesis of America LLC, Case No. 2013-10479-CA-20, in the Eleventh Judicial Circuit Court of Florida.  MLB claims lost profits and damage to its relationship with its fanbase(goodwill) as damages.  A Miami judge recently denied a motion to dismiss the case meaning that discovery, including depositions, will begin shortly.  Biogenesis had argued that the complaint was too vague in that it did not state which contract was interfered with.  MLB countered that attachments to the complaint made specific allegations in that regard.  Attorneys for third parties MLB subpoenaed argued that the state court lacked jurisdiction as the case involved a collective bargaining agreement that is regulated by federal law.  The prospect of MLB obtaining more information from the discovery process makes striking a deal now more attractive to the players involved. 

Tortious interference with a contract by helping a party to the contract do something they promised  not to do is an interesting argument as most of these cases involve interference with something that the party promised to do rather than something that he promised not to do.

http://www.miamiherald.com/2013/07/29/3529803/judge-allows-major-league-baseball.html

http://www.cbssports.com/mlb/blog/eye-on-baseball/22934780/florida-judge-mlb-can-pursue-lawsuit-against-biogenesis

http://www.law360.com/articles/449354/health-clinic-can-t-dodge-mlb-s-drug-suit

http://www.sbnation.com/mlb/2013/6/12/4424256/mlb-biogenesis-lawsuit-tony-bosch-alex-rodriguez-ryan-braun

The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler

Confidential Informants

An article in the New York Times discussed a strange case in New York where the authorities concocted a story to avoid disclosing the identity of a confidential informant. Naturally that did not go over we'll with the judge. Confidential informants are often used though if they remain anonymous their hearsay testimony can only be admitted for limited purposes such as showing how the investigation began. There is legal standard to test their reliability in suppression motions, but if the existence of the confidential informant is hidden by a concocted story the system does not work.

 The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler

Habeas Corpus and Guantanamo

Your Guantánamo Moment from Yale Law School on Vimeo.
P. Sabin Willett discusses his moment of revelation as an attorney, and those moments that will come for the next generation of lawyers Oct. 24, 2011, at Yale Law School.

This video is an interesting discussion by a lawyer who represented some of the Uyghur detainees on habeas corpus and detainee treatment act appeals. I think anyone who has done at least some defense work can relate to his experience in many respects. 

The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler

Domestic Drones/UAVs

Florida has adopted a new law that limits the ability of the state to use drones for surveillance. 
http://www.cnn.com/2013/04/25/us/florida-drone-law/index.html.  The law requires judicial approval before state and local law enforcement may use surveillance drones.  The law makes exceptions for instances where there is "imminent danger to life or serious damage to property" or where there is "credible intelligence" which indicates "a high risk of terrorist attack."  Currently few law enforcement agencies in Florida  have drones.   The CNN article states that Miami and Orange County each have two.

In terms of the Fourth Amendment it is important to note that states may adopt more privacy protections, by statute or by constitutional provision, than are guaranteed under the U.S. Constitution.  Florida has done so by statute in this instance. 

At the federal level the U.S. Supreme Court has decided cases involving surveillance by manned aircraft.  California v. Ciraolo, 476 U.S. 207 (1986).  In that case the police were not required to obtain a warrant before flying over and observing with the naked eye the backyard of the defendant.  Using other equipment beyond human eyesight during the overflight to observe the property would entail a different analysis than Ciraolo.  Also the Supreme Court has recently placed an extra emphasis on property rights in the Fourth Amendment context.  United States v. Jones, 565 U.S. ___; 132 S.Ct. 945; 181 L.Ed.2d 911(2012).  The common law property maxim of cuius est solum eius est usque ad coelum et ad inferos implied that a land owner owned all the land beneath and above his property.    This legal maxim is now limited to the area above or below the ground that the landowner can occupy or use in connection with the land so overflights are not prohibited in this regard unless they are too low to the ground.  United States v. Causby, 328 U.S. 256; 66 S.Ct. 1062; 90 L.Ed. 1206 (1946).  So there might be a property rights based Fourth Amendment argument against drones flying too close to the ground without a warrant.

The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler

Retired Supreme Court Justices

The article below is about the role that retired justices of the Supreme Court continue to play in the legal system after their retirement.  Many go on to sit on panels in the various United States Circuit Courts of Appeals deciding cases.

http://www.washingtonpost.com/politics/retired-supreme-court-justices-still-judge--and-get-judged/2013/03/10/1b22943c-897f-11e2-8d72-dc76641cb8d4_story.html

The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler