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February 20, 2008

Legal Roundup

Commenter genghis points me to some interesting legal action this week.

First, the Court has declined to review the Sixth Circuit's ruling that the ACLU and others have no standing to sue the NSA over the Terrorist Surveillance Program. This is the case where District Judge Anna Diggs Taylor, a Carter appointee, substituted the words "undisputedly" and "clearly" for legal reasoning while making smug pronunciation that "there are no hereditary Kings in America." I and many others took her to pieces for it while the Lefty blogosphere and the media called her "courageous" and us "racist" (it turned out she was black).

This is yet another case where the government claimed state secrets privilege and prevailed. The ACLU can't prove that it has standing without access to materials involving national security. Taylor sidestepped the issue by claiming that the plaintiffs had standing without access, but the Sixth Circuit didn't agree. The ACLU probably couldn't get the justices to agree to hear the case because there simply isn't a split among the courts when it comes to state secrets doctrine.

Second, the Court also rejected an appeal by Xavier University and 68 others involved in a contract parsing dispute with insurers who refuse to pay for flood damage caused by Hurricane Katrina. The case is noteworthy only because it should impress upon plaintiffs to chose their venue wisely; we've got a dual judicial system and choices at the very beginning of litigation may determine the outcome: The federal courts ruled that the insurance policies did not cover damage from floods. However, in similar cases, the Louisiana courts held that the language of the policies is "ambiguous" and therefore ruled against the insurers based on a state rule which requires that exceptions to coverage be "unambiguous."

Third, a federal district judge has decided to hold a reporter in contempt of court for not complying with an order to identify her sources for articles she wrote about the 2001 anthrax attacks. This is the usual story: reporter decides she can ignore court orders; judge gets pissed off; reporter loses $1,000 a day, upped by $1,000 with every passing week, until she complies.

The issue here is so-called journalistic privilege, the idea that reporters would be unable to exercise their First Amendment right to speech if courts could make them divulge their confidential sources like the rest of us. Most federal circuits have a qualified form of this privilege, but it has notably not availed reporters in several high-profile cases in the D.C. circuit, including that of Valerie Plame. Congress is considering a federal shield law right now (it's stalled in the Senate).

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posted by Gabriel Malor at 03:49 AM

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