Wednesday, November 19, 2008

Who will Obama appoint to SCOTUS?

The LA Times has this article.

The top three are:

Judges Diane Wood, 58, of the U.S. appeals court in Chicago;

Judge Sonia Sotomayor, 54, of the U.S. appeals court in New York;

and Elena Kagan, 48, dean of Harvard Law School.

Billy Wilkins' return to the courtroom as a lawyer meets with success

From the Greenville News:

William W. “Billy” Wilkins successfully argued against a motion in a shareholder suit against South Financial that asked for a temporary restraining order barring retirement payments to retired CEO Mack Whittle as part of a an agreement that the suit alleges is “unconscionable” and could threaten the company’s solvency if carried out.

The agreement would pay Whittle $10 million following his retirement in October, attorneys said in court Tuesday during a hearing before Circuit Judge John Few, who denied shareholder Vernon Mercier’s request for the restraining order.

Not surprisingly, Wilkins's stock as an advocate is rising.

Monday, November 17, 2008

SCOTUS vacates injunction against Naval use of sonar

Last week, the United States Supreme Court issued its first opinion of the new term: Winter v. Natural Resources Defense Council. This case concerned the Navy’s use of mid frequency active sonar, which transmits sound waves at various frequencies. This type of sonar is used in Naval exercises, including training and tracking of submarines. The Ninth Circuit Court of Appeals upheld a preliminary injunction imposing restrictions on the Navy’s sonar training, even though the record contained no evidence that marine mammals have been harmed by the activity. In arguing against the injunction, the Navy emphasized that it had used sonar during training exercises off the coast of California for forty (40) years, without a single documented injury to a marine mammal.

The injunction issued based on the Navy’s alleged violation of the National Environmental Policy Act of 1969, which requires federal agencies to the fullest extent possible to draft an environmental impact statement for every major federal action affecting the quality of the human environment. The areas of the injunction that were in contention required the sonar to be shut down when a marine mammal was spotted within 2,200 yards of a vessel, and the requirement that the sonar be powered down during significant surface ducting conditions, in which sound travels further than it otherwise would due to temperature differences in adjacent layers of water.

In reversing and vacating the injunction, the Supreme Court noted that the District Court and Court of Appeals held that when a plaintiff demonstrates a strong likelihood of prevailing on the merits, a preliminary injunction may be entered based only on a “possibility” of irreparable harm. The Supreme Court held that the preliminary injunction standard requires plaintiff seeking relief to demonstrate that irreparable injury is likely in the absence of an injunction. The issuing of a preliminary injunction based only on a possibility of irreparable harm is inconsistent with the court’s characterization of injunctive relief as an extraordinary remedy that may be awarded upon a clear showing that plaintiff is entitled to such relief.

The Supreme Court went on to note that even if the plaintiffs had shown irreparable injury from the training exercises, such an injury was outweighed by the public interest and the Navy’s interest in effective, realistic training of its sailors. The court cited testimony from several Naval officers who emphasized that realistic training cannot be accomplished under the two challenged for civic restrictions imposed by the District Court.

Monday, November 10, 2008

Obama could transform the Fourth Circuit

A snippet from the Richmond Times:

As president, Barack Obama and a new U.S. Senate could transform the Richmond-based 4th U.S. Circuit Court of Appeals, long one of the most conservative in the country.

President Bush failed to fill four vacancies on the 15-judge court, which decides cases on issues such as abortion, the death penalty and terrorism.

The Bush administration steered terrorism cases to the court, where it largely has been successful in protecting the president's national-security powers, though not always.

Six of the court's current judges were appointed by Republican presidents and five by Democrats.

Tuesday, November 04, 2008

Judgment not necessary to pierce corporate veil

In Drury Development v. Foundation Insurance, the South Carolina Supreme Court answered the following certified question: whether a judgment against a corporation is a prerequisite to an alter ego claim. This question has come up often in South Carolina. Frequently, plaintiffs attempt to demand many financial documents of a corporation early in discovery on the basis of an alter ego claim. Defendants often counter that this discovery is premature and improper because no judgment has been entered against the corporation and therefore the issue of veil piercing cannot come up.

Noting that veil-piercing is a form of equitable relief, the South Carolina Supreme Court refused to impose "rigid rules of law to seek substantial justice." The court ultimately held that "so long as the plaintiff has pled facts sufficient to survive a motion to dismiss as to the corporate liability claims and the alter ego claim, the trial court should move forward to determination of both matters."

Voter registration drives

Here is an interesting take on the voter registration movement and the duties of citizenship.