On Saturday, U.S. Attorney General Eric Holder announced that the federal government will begin giving same-sex couples the same benefits as heterosexual couples when filing for bankruptcy and when visiting family members in court. The benefits include allowing same-sex couples to be covered by spousal privilege in criminal investigations. The federal government will also recognize same-sex couple for programs such as the September 11th Victim Compensation Fund.
On Thursday, the Food and Drug Administration declined to define “natural” in the realm of food labeling in a published response letter. The letter, a response to three cases considering whether food products containing bioengineered ingredients can be labeled as “natural”, explains that it would take a public process to come up with a definition and the creation of such a definition would involve the interests of other agencies.
Currently, existing policy states that the term “natural” on food labels means that “nothing artificial synthetic (including all color additives regardless of source) has been included in, or has been added to a food that would not normally be expected to be in the food.” 58 Fed. Reg. 2302, 2407 (Jan. 6, 1993).
On Tuesday, Chief Justice Jean Toal was re-elected as the chief justice of the South Carolina Supreme Court in a joint session of the General Assembly. She was challenged by Associate Justice Costa Pleicones in a 95-74 vote.
South Carolina is one of only two states where the lawmakers elect the judges that interpret the laws they pass. The Judicial Merit Selection Commission, a 10-person panel of appointees selected by legislators vet candidates’ qualifications for the seat and nominate up to three people to fill the position.
Toal, the first woman to serve on the state Supreme Court, has already said that she will step down at the end of next year when she reaches the mandatory age of retirement for state judges–72.
The law has many strange and esoteric terms. Have you ever wondered where the term suit, as it refers to a legal proceeding, came from? Black’s Law Dictionary defines suit as “[a]ny proceeding by a party or parties against another in a court of law; case.” It adds “lawsuit” and “suit at law” as synonyms.1 The use of the term suit originated in 14th century England, before there were organized court systems. Disputes were settled in open-air communal meetings.2 The goal was not a reasoned decision, but an amicable settlement. If that could not be achieved, the next resort was proof by oath, backed up by a physical challenge of some sort.
“In order to put the defendant to this hazard [physical challenge], the plaintiff was required to establish a prima facie case; and this was the purpose of his ‘suit’ (secta), the group of followers whom he had brought with him to back him up on oath. The suit had some affinity with witnesses, and they may have been subject to examination as to competence, but their testimony was only part of the interlocutory process and did not dispose of the matter.”3
“This sort of ‘witness,’ …, might have nothing to do with the trial; he belonged to the stage of the preliminary allegations, the pleading, where belonged profert (sic) of the deed upon which an action or a plea was grounded.”4 In time, the suit was absorbed into common-law procedure, mostly serving as transaction witnesses when written contracts were rare.5 Eventually, “they were not even produced, and only the formula in the pleadings was kept up.”6 Today, the allegations in a complaint filed to initiate a lawsuit serve the same function – of presenting a prima facie case – as the 14th century suit. In the practice of adjudicating a motion to dismiss a lawsuit for failure to state a claim by taking the plaintiff’s allegations as true,7 we hear the echo of the medieval principle that the suit cannot be examined.
1. Black’s Law Dictionary (9th ed. 2009).
2. J.H. Baker, An Introduction to English Legal History 5 (3rd ed. 1990).
3. Id. (emphasis added).
4. James B. Thayer, The Older Modes of Trial, 5 Harv. L. Rev. 45, 48 (1891).
5. Baker at 362.
6. Thayer at 48.
7. “The question is whether, in the light most favorable to the plaintiff, and with every doubt resolved in his behalf, the complaint states any valid claim for relief.” Gentry v. Yonce, 522 S.E.2d 137, 139 (1999).
Earlier this month, the United States Supreme Court granted review for two cases on the issue of whether policy have authority to search the contents of an arrested person’s cell phone: Riley v. California and United States v. Wurie. Riley involves a cell phone that was described as being more like a hand-held computer, while Wurie involves a flip-phone. Both searches took place without an arrest.
For more on the cases, see SCOTUSblog’s coverage.
Earlier this month, the U.S. Court of Appeals for the D.C. Circuit Court held oral arguments on whether the requirement that publicly traded companies disclose the use of certain minerals from certain African countries is a violation of the First Amendment and whether the SEC took arbitrary actions when adopting the rule.
A trio of business groups challenged the Securities and Exchange Commission’s conflict minerals rule, but the district court upheld the rule. The rule, meant to cut off funding for those perpetrating human rights abuses, requires companies to disclose whether their products contain tin, tunsten, tantalum, or gold from the Democratic Republic of Congo and its neighbors, but the business groups question whether the rule would help the African people and argue that complying with the rule would cost companies billions of dollars. They also argue that the SEC could make compliance less of a burden by exempting those companies who use only trace amounts of the minerals in question. The First Amendment argument is that the rule forces them to criticize their own products; during the oral arguments, the panel seemed concern that making companies share this information could be a “slippery slope.” The SEC argues that it is following its Congressional mandate by creating the rule.
Yesterday, the Supreme Court heard arguments in NLRB v. Noel Canning to decide whether the president’s power to make recess appointments can be exercised:
- during a recess that occurs within a session of the Senate OR is limited to recesses that occur between enumerated sessions of the Senate
- to fill any vacancy that exists during a recess OR is limited to those that arise during the recess
Last January, the U.S. Court of Appeals for the District of Columbia Circuit held that three appointments to the National Labor Relations Board by President Obama were unconstitutional. The government appeals that decision.
For a review of the argument, see this SCOTUSblog post.
This morning, the Supreme Court will hear oral arguments in the case of United States v. Apel, concerning whether military bases have the authority to punish anti-war protestors who violate the rules of access to military facilities. The military base in question is Vandenberg Air Force Base in California, a base that the public needs special permission to enter, but across which runs Pacific Coast Highway, a public road, which are generally open to free speech activity. In the late 1980s, a commander set up a public protest area just outside the main gate, along the highway. There are laws making it a crime to enter a military base for an illegal purpose and to reenter a base after having been barred or removed from a base, but the federal government formally gave the state of California an easement to use the part of the Pacific Coast Highway that runs across the edge of the base as a public road. The protest zone is within the space covered by the easement.
The defendant in the case is no longer welcome in the protest zone due to an earlier incident in which he through blood on a sign at the gate of the base and then again years later for trespassing. In 2010, Mr. Apel entered the protest zone on three occasions. He was charged for violating the provision hat criminalizes entering a base after having been barred previously and convicted. The Ninth Circuit overturned that conviction, relying on a prior case from the same military base that stated the Air Force can only punish those entering a base without permission if the military has “the exclusive right of possession” of the property and concluding that it shares authority over the protest zone and the part of Pacific Coast Highway because of the easement.
Check out SCOTUSblog’s analysis on the upcoming arguments to see the issues that will likely arise and what the court will be considering.
On Monday, the Court refused to hear two new cases that challenged state taxes on Internet-only sales in states where those companies do not have a physical presence: Overstock.com Inc., v. New York Taxation Dep’t and Amazon.com v. New York Taxation Dep’t. In both cases, the Internet retailers argued that they had no presence in the state and should be exempt from taxes on purchases made on those Internet retail sites by New York customers. The Court of Appeals (the highest court in the state) ruled that they were subject to tax in New York because contracts with third-party local affiliates that generate customers for them through Internet links to the retailers’ websites is a substantial enough nexus to force the companies to collect taxes. The Washington post posited that the court’s decision to stay out of the issue may pressure Congress to come up with a solution on a national level; in the meantime, Overstock.com has suspended its relationships with the local affiliates to avoid having to conform to the New York law.
The library will be open the following, expanded hours for Thanksgiving week:
Thursday: Closed for Thanksgiving
The library will be open the following hours during the exam period (Saturday, November 30th through Friday, December 13th:
Fridays: 7:00am-11:00pm (Note: The library will close at 7:00pm on Friday, Dec. 13th)
Good luck on exams, and please see a reference librarian for the CALI access code or to help find any other study materials that might be helpful as you prepare for exams!