Title VII retaliation must relate to EEOC charge

In Townsend v. Benjamin Enterprizses, Inc., the 2d Circuit addressed an issue of first impression -- whether Title VII's "participation clause covers internal [i..e., employer] investigations not associated with a formal EEOC charge."  The court answered the question in the nagtive, holding that Title VII's participation clause only extends to a formal EEOC investigation; "it does not include participating in an employer's internal, in-house investigation, conducted apart fro a formal charge with the EEOC."

http://www.ca2.uscourts.gov/decisions/isysquery/855b7c0d-e303-49c2-a5f6-399603d29346/1/doc/09-0197_complete_opn.pdf

ABL saw Robert Bennett @ fed courthouse today

Rehnquist, Jackson, and letters stolen from Library of Congress

“I think that Plessy v. Ferguson was right and should be reaffirmed.”

In December 1952, Supreme Court law clerk William H. Rehnquist wrote that privately to his boss, Justice Robert H. Jackson.  In December 1971, this Rehnquist memorandum, defending the constitutionality of racial segregation under Plessy’s “separate but equal” doctrine, was discovered.  Rehnquist’s own Supreme Court confirmation then hung in the balance.  He claimed that the memorandum reflected Jackson's views, not Rehnquist's.  He was confirmed, but his explanation triggered charges that he had lied and smeared the memory of one of the Court's most revered justices.

Professor Brad Snyder (University of Wisconsin Law School) and I have just published an essay in the Boston College Law Review that pertains to this subject.

Our essay, “Rehnquist's Missing Letter:  A Former Law Clerk's 1955 Thoughts on Justice Jackson and Brown,” analyzes a newly discovered document, a letter that Rehnquist wrote to Justice Felix Frankfurter in 1955, criticizing Jackson.  This 1955 Rehnquist letter reveals what he thought about Jackson shortly after the Supreme Court declared in Brown v. Board of Education that school segregation was unconstitutional and, just months later, Jackson’s death.  We explain that this 1955 Rehnquist letter was not known during his Supreme Court confirmation hearings in 1971 and 1986, and that it is now missing and may have been stolen from Justice Frankfurter's Papers in the Library of Congress.

We argue that Rehnquist's 1955 letter represents his disappointment with Brown and the beginning of his outspoken criticism of the Warren Court.  We contend that the letter says less about how Rehnquist felt about Jackson and more about Rehnquist's disappointment over his Justice's role in Brown, the most important Supreme Court decision of the 20^th century.

Some links—

For the Boston College Law Review, click here.

For Adam Liptak’s New York Times story about our essay and these issues, click here.

For a filmed excerpt from an August 2010 speech in which attorney E. Barrett Prettyman, Jr., explained the process by which Justice Jackson hired him in 1953 to be his solo law clerk, succeeding Rehnquist and his co-clerk, click here.

Thank you for your interest, and please share this with others.
Best wishes,
John

Professor John Q. Barrett

St. John’s University School of Law
Elizabeth S. Lenna Fellow
Robert H. Jackson Center, Inc., Jamestown, NY

ABL and former County Attorneys -- Christmas celebration

ABL met with former Erie County Attorneys for a holiday celebration.  Pictured from right to left are:  Hon. Eugene F. Pigott, Jr., Larry Rubin, Fred Wolf, Ken Schoetz, Cheryl Green, Jim Magavern, Jeremy Colby, Hon. Patrick H. NeMoyer, and Hon. William Straub.

federal courthouse should be named after Justice Robert Jackson

ABL will be returning to private practice by popular demand

to borrow Judge Elfvin's wit (I do not think he will mind). The reference is noted in the BizFirst article by Matt Chandler.

issue of first impression?

ABL was asked today if he agreed with opposing counsel's assessment of the issue being one of first impression . . . the response was "no." The response ABL really wanted to give: "my brief discussed a surprising amount of on point case law for it to be an 'issue of first impression'!

Metadata Ethics Opinions

What's New for 2011 on Ethics? NYSBA CLE

Need help getting into the cloud or going paperless? Call Eric Posa @ DocuSyst (http://www.docusyst.com/).

NYSBA Ethics Opinions (clieck the title link above).

ABL is mad as hell at federal spending

Desmond summer party

The Desmond Inn of Court hosted US Attorney Bill Hochul as its guest speaker for the April meeting. The remarks were only rivaled by the strong attendance.

The summer party for judges and members only will be 5:30 on June 9 at Templeton's Landing (fka Shanghai Red's fka Crawdaddy's).

Someone asked how to get an "invite". You must join the Inn (if you want to attend this event you can pre-pay for membership for next year and you can attend this event). Call Donall O'Carroll at 842-2800.

Ice Ice baby . . . in the new federal courthouse?

Happy Birthday Justice Robert Jackson

Courtesy of Prof. John Q. Barrett of St. John's:

On February 13, 1952, Justice Robert H. Jackson celebrated his 60th birthday. Although the Supreme Court was in recess that week, Jackson and other justices were working in the building. Late that Wednesday afternoon, they were invited to Jackson’s chambers (today Justice Clarence Thomas’s chambers) for a small celebration that included a birthday cake. Chief Justice Fred Vinson and Associate Justices Felix Frankfurter, Harold Burton, Tom Clark and Sherman Minton attended, along with Jackson’s secretary Elsie Douglas, his law clerks and other Court employees.

Justice Burton, a scrupulous diarist, later made this little entry about the occasion:

Late in PM Justice Jackson had a birthday party in his chambers – the Chief Justice, + Justices Frankfurter, Clark + Minton + I attended – also his law clerks his law clerk C. George Niebank Jr + the other.

Niebank’s name was uncommon, but he had been clerking for Jackson for over a year and Burton clearly had gotten to know him. “The other,” apparently Jackson’s second law clerk, had joined the Jackson staff only a few weeks earlier following his December 1951 graduation from law school. His name, William Rehnquist, also was not common. I am sure that Burton in time came to know both the name and the young man. Rehnquist served as a Jackson law clerk through early June 1953 and then went into private law practice in Arizona.

e-filing in NYS court

Online Demonstration Video of New
E-Filing System Now Available

A demonstration of the new E-Filing System of the New York State Courts (NYSCEF) is now available online at http://www.nycourts.gov/whatsnew/. The demo will allow attorneys to get a password and learn the benefits of e-filing and serving documents through NYSCEF. Free training sessions are also available through the NYSCEF Resource Center, for which attendees can obtain CLE Credits. For more information, contact them at 646-386-3033 or EFile@nycourts.gov.

Judge Pigott to address Desmond Inn of Court

Judge Pigott spoke to the Desmond Inn of Court today in the Ceremonial Courtroom. It was well attended and, as always, he entertained and provided insight concerning practice before the Court of Appeals.

Next month, on March 16, U.S. Attorney William Hochul will address the Inn.

Facebook authorizations

In ROMANO v. STEELCASE, INC., (N.Y. Sup. 2010) Supreme Court in Suffolk County (Justice Spinner) engaged in a thorough analysis of whether or not defense counsel is entitled to seek an authorization for social networking sites such as Facebook and MySpace. The court held that a plaintiff in a personal injury action who is claiming physical limitations and loss of enjoyment are required to provide consents that authorize defense counsel to review plaintiff's Facebook/MySpace pages. Justice Spinner examined federal and Canadian case law because "there is no New York case law directly addressing the issues raised by this application, there are instructive cases from other jurisdictions." Justice Spinner also found that a plaintiff "has no legitimate reasonable expectation of privacy" in their online postings.

A month later, the Fourth Department decided McCANN v. HARLEYSVILLE INS. CO. of NY (2010 WL 4540599 (4th Dep't 2010), which held that it was error to grant a protective order prohibiting defendant from seeking disclosure of plaintiff's Facebook account. Although the court also affirmed the lower court's decision denying defendant's motion to compel, that decision was based on defendant's failure to establish the necessary factual predicate.

more unfunded mandates

Thank you Mr. Chief Justice, may I have another!

Last night, John G. Roberts, Jr. (USSC CJ) was the Frank J. Raichle Lecturer. "A Conversation with the Chief Justice" was a conversation (thus appropriately titled) between the Chief Justice and his former partner, Joseph M. Hassett, who asked questions presented by Canisius College students, faculty, alumni . . . and even Chief Judge Skretny. It was an unparalleled evening for the WNY legal community and Buffalo's favorite son.

JGR was entertaining and informative. He deftly handled some not-so-deftly crafted questions (ABL wanted to know what JGR's favorite sit-com is and whether he mows his lawn). JGR also offered other bits of wisdom, such as, you should always eat a donut offered by a Court of Appeals judge. He also recollected that, while clerking for then Justice Rehnquist (6 years pre-CJ for WHR), assisted in writing an article on the duties of the Chief Justice, a position that both men would later hold). Generous references to Justice Robert H. Jackson (Jamestown's favorite son).

ABL almost hit for the cycle, shaking hands with judges on each level of the federal judiciary and two of the three levels of the NY State Court system.

2d Cir. cites Youtube

Here is a link to the 2d Circuit's decision in Dickerson v. Napolitano, 604 F.3d 732 n.1 (2d Cir. 2010), which cites Youtube to explain the cinematic reference that begat Operation Stinking Badges.

Desmond & Jackson

Officers of the Charles S. Desmond (Buffalo) and Robert H. Jackson (Jamestown) Inns of Court met at the Robert H. Jackson Center. ABL and Greg Peterson, Judge Marshall, Judge Walker, and Arthur Bailey are pictured standing around the chair used by Justice Jackson at the USSC.

The Inns are meeting together on October 16, 2010 in Jamestown in conjunction with a play at the Jackson Center on the career of Clarence Darrow. Members of the bench and var who are interested in joining the Inn should contact ABL.

Caveat Emptor

In AIG Europe, S.A. v. MIH Scrap Metals Intern., LLC, 2010 WL 2720593 (W.D.N.Y.,2010), Judge Arcara decided a personal jurisdiction motion in an interesting case involving a multi-million order of copper from Tanzania, that was supposed to be checked by a agent from London when it was loaded on a ship -- and which turned out to be crates full of rocks and dirt. ABL also hears that when the insurer sent an investigator to Africa to snoop around, that he was promptly greeted by armed gunmen who politely asked him to stop asking questions and to leave.

Start saving your pre 1981 pennies -- which are worth more than a crate full of rocks and dirt.

need a lawyer in Buffalo? Rochester? Syracuse?

or any venue in between? then call ABL! Consultations are free and I will seek to point you in the right direction if I am unable to assist.

Legal Marketing blog

WNY's history of earthquakes

NY Times article on digital advertising

Facebook and internet advertising is better for the consumer because it gives them more information to evaluate attorneys than do commercials or the yellow pages (does anyone gets calls from the phone book anymore?).

Cartoon is found in the linked article from the NY Times.

Litigation Holds -- resources

http://www.lawtechguru.com/files/ILTA-Legal_Hold_Best_Practices-Jeff_Beard.pdf (5 page white paper)

http://www.iltanet.org/WhitePaperPDFs/2009LitigationSupport.aspx (32 page white paper)

http://legalholds.typepad.com/legalholds/2010/05/all-lawyers-must-be-able-to-fashion-a-defensible-legal-hold.html

http://legalholds.typepad.com/legalholds/2009/06/white-paper-best-practices-for-legal-hold-processes.html

unsealed affidavit re stolen 4G Iphone

Attorney Advertising -- Alexander v. Cahill

challenging Obama-care in federal court

recent non-compete decision

by Judge Ramos.

How Social Networking can impact your cases & clients

Today's Desmond meeting will discuss this topic.

Attached are some useful links:

http://en.wikipedia.org/wiki/Use_of_social_network_websites_in_investigations

http://www.llrx.com/features/pretexting.htm

http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202428950936

http://legal-beagle.typepad.com/security/2010/03/internet-probe.html

http://en.wikipedia.org/wiki/Social_engineering_(security)

http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202433484729

USSC decision on attorneys' fees

Perdue v. Kenny A. (pdf is linked).

Can you patent a gene?

Sen. Orrin Hatch speaks to Federalists & Canisius

Sen. Hatch addressed the Buffalo Chapter of the Federalist Society yesterday afternoon -- and gave the Frank J. Raichle presentation at Canisius (at the wonderfully restored Montante Center). Both events were far better than ABL expected. Hatch is an engaging speaker. It is no wonder he has been in the Senate for 34 years.

The Raichle speech discussed the proper role for federal judges, which is to interpret the Constitution and laws as written, not to interpret them in light of changing social mores or the judge's personal preferences or ideology. He references the umpire analogy used by Chief Justice John Roberts (ABL is ready to clerk for you, have your people call my people) in his confirmation hearing. Judges should be like an umpire at a baseball game, calling balls and strikes as they see them, not as they would like them to have been thrown, and not predicting the outcome of the game based on the pre-game review of the teams' rosters. Sen. Hatch decried judicial activism. Although he admitted that conservative judges can also be activists, it is much more common in liberal judges because it is part of their philosophy to believe that the law is a living breathing thing rather than a written set of rules designed to govern behavior and to constrain government and judges. Sen. Hatch referred to the Dred Scott and Roe v. Wade decisions as examples of what happens when judges decide cases without Constitutional moorings.

First One @ One First

The above link to Above the Law describes a Gerogetown 3L's efforts to be the first in line for each USSC argument.

"virtual parade of linguistic horrors"

"Less substantive but also adding to the confusion, the Court observes that in a world where spell-checking and grammar-checking devices are ubiquitously employed, the proposed amended complaint stands resolutely alone, offering a virtual parade of linguistic horrors. After cavalierly invoking the “jurisdication” (sic) of the Court, plaintiff refers to the defendants using dozens of different abbreviations and acronyms, in some cases so far removed from defendants' names as to render them unidentifiable. She converts bulleted lists into separate paragraphs comprised of inscrutable, open-ended sentence fragments, flouts the rules of grammar and sentence construction to the point that many allegations are entirely nonsensical, and vacillates constantly between referring to herself in the first person and third person narrative modes."

This was after the Court noted that the proposed amended complaint was worse than the originally file pro se version. ABL is only a spectator in this one.

NYS judicial pay case

Deliberate Speed

Seven years ago, ABL submitted a proposal to the Committee responsible for considering changes to the Federal Rules of Civil Procedure. This proposal remains pending (2 of 5 from 2003 that have not been closed). The is a hyper-link to a list of other such proposals. ABL's proposal is still pending. I recall hearing from the Committee that the process takes a "long, long" time. They were not kidding.

Meditate, not mediate!

USSC adopts nerve center test

In Hertz v. Friend, the USSC recently adopted the 7th Circuit's nerve center test for ascertaining a corporation's principal place of business for purposes of diversity jurisdiction, ending a 50 year split amongst the circuits.