Book Review: David Lat’s Supreme Ambitions

By Steve Klepper (Twitter: @MDAppeal)

David Lat of Above the Law was kind enough to send me an advance copy of his novel, Supreme Ambitions. I face a difficult task at the outset: Judge Richard Kopf’s review at Hercules and the Umpire covered most of the bases already. So much in fact that I encourage you to read his review first and to consider this post a follow-up in the same conversation.

To get the obligatory plot summary out the way, below is the book jacket summary from Amazon:

Supreme Ambitions details the rise of Audrey Coyne, a recent Yale Law School graduate who dreams of clerking for the U.S. Supreme Court someday. Audrey moves to California to clerk for Judge Christina Wong Stinson, a highly regarded appeals-court judge who is Audrey’s ticket to a Supreme Court clerkship. While working for the powerful and driven Judge Stinson, Audrey discovers that high ambitions come with a high price. Toss in some headline-making cases, a little romance, and a pesky judicial gossip blog, and you have a legal novel with the inside scoop you’d expect from the founder of Above the Law, one of the nation’s most widely read and influential legal websites.

Saying more risks spoilers. The plot has many twists and turns – some of them unexpected, some of them telegraphed, but, critically, all of them making narrative sense. Supreme Ambitions is a legitimate page-turner. Lat knows the story he wants to tell, and he tells it well. He makes no secret of the themes he wants to convey, and he conveys them effectively. Overall, it’s smashing success. Read More…

Let Freedom Ring… By Respecting Religion

By Karen Federman-Henry

This week brings with it events worthy of celebration and remembrance. The “Star Spangled Banner” celebrates its 200th birthday, while we again honor those who lost their lives so tragically on September 11, 2001. Each milestone sparks patriotism and appreciation for the foundation upon which this country rests — the protection of a number of freedoms and the separation of powers to ensure adequate checks and balances among the executive, legislative, and judicial branches of government.

Along with this separation of powers, the United States has taken pride in maintaining the separation of church and state as a means of avoiding the religious persecution that the early colonists sought to leave behind. Despite the effort, periodic blurring of the line occurs, as demonstrated in the debate about prayer in the schools, the refusal of health insurance coverage for birth control, displays of the Ten Commandments on government-owned property, and even whether the Pledge of Allegiance should remove the reference to God.

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Court Calendar, Including Dates of Certiorari Conferences, Now on Md. COA Website

By Michael Wein

Attorneys have wondered in the past, “What date will the Court of Appeals decide my certiorari petition?” Wonder no more. To continue its evolution under Chief Judge Mary Ellen Barbera – who, as discussed in previous posts, has required that an opinion in each case be issued by the end of the term in which it was considered, and spearheaded a “pending cases” webpage to keep track of undecided cases – the Court of Appeals this week created an online calendar on its homepage listing dates of significant Court events, including oral arguments. Of most interest is that now, for the first time, the anticipated dates of certiorari conferences will be available to the general public. (Thursday, September 18, 2014, and Monday, October 20, 2014, are the next-scheduled conferences.) That of course does not necessarily mean that a party’s certiorari petition will be decided at any certain conference, but at least practitioners will know to check for the outcome a day or two after each conference rather than daily throughout the month. There are additional certiorari decisions that come from time-sensitive petitions (such as in some injunction, family law, and election law cases) that are unlikely to be scheduled in advance. Still, this calendar feature should give approximate notice to most certiorari applicants of when they can learn the fate of their petitions, a welcome improvement.

Two Court of Appeals Judges Indicate Support for Permitting Attorneys to “Specialize” in Fields

By Michael Wein

Two judges of the Maryland Court of Appeals, in a little-recognized and short concurring and dissenting opinion, have indicated they may be open to attorneys using the word “specialty” or similar words when describing their professional qualifications, including in advertising. In the case of Attorney Grievance Comm’n  v. Zhang, Judges McDonald and Adkins noted their disagreement with Judge Watts’ majority opinion on two issues: They felt that the attorney’s actions justified not a disbarment but an indefinite suspension, and, more interestingly for the purposes of this piece, that an attorney’s use of the words “specialty,” “specializing,” or similar iterations in describing his or her practice should not be considered a potentially sanctionable offense under Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 7.4(a).

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Five Lessons from the Maryland Appellate Blog’s First Year

By Steve Klepper (Twitter: @MDAppeal)

Today marks the one-year anniversary of the blog’s official launch. Here are five quick lessons I’ve learned as editor-in-chief.

  1. Howard Bashman is the kingmaker of appellate blogging.

The blog has featured exactly 100 posts and received just under 29,000 hits. Our two top referrers are Howard Bashman’s How Appealing blog (1,877 hits) and Twitter (1,764 hits). But looking behind the numbers, only about 9 of our posts have made it onto Howard’s blog, while almost every post was tweeted. Making SCOTUSblog’s roundup is a big deal (7 appearances, 1,038 hits), but How Appealing is, to borrow a baseball term, “The Show.” Read More…

August 2014 Maryland Certiorari Grants

What better way to welcome back the Court of Appeals from its summer recess than with a new slate of cert grants? This assortment should especially draw the attention of employment lawyers (questions about the viability of the reasonable-expectations doctrine and the relationship between retirement and workers’ comp benefits), criminal attorneys (matters on merging sentences and the conducting of voir dire), and practitioners with a niche interest in underinsured-motorist benefits (a double-dose of UIM cases this month). Without further ado, the latest appellate admissions after the jump… drum roll, please …

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Dan Friedman Appointed to the Court of Special Appeals

By Steve Klepper (Twitter: @MDAppeal)

This press release just appeared on the Governor’s website:

Governor O’Malley made one appointment to an at-large seat on the Court of Special Appeals.

Dan Friedman has served as an Assistant Attorney General and Counsel to the General Assembly since 2008.  In that role, Mr. Friedman provides legal advice to members and committees of the General Assembly about the constitutionality of legislation and proposed bills, and he also defends enacted legislation if it is challenged in court.

Prior to serving in the Attorney General’s office, Mr. Friedman served as special counsel at Saul Ewing LLP, as an Associate City Solicitor and Chief of Litigation at the Baltimore City Law Department, and as an associate at Miles & Stockbridge, P.C.  For over a decade, he has served as an Adjunct Professor at the University of Maryland Francis King Carey School of Law teaching courses in state and federal constitutional law.  In addition, Mr. Friedman has served in numerous community organizations and coaches lacrosse.

Mr. Friedman earned a law degree from the University of Maryland Francis King Carey School of Law and an undergraduate degree from the University of Maryland, College Park.  After law school, he clerked for Judge John Carroll Byrnes on the Circuit Court for Baltimore City and Judge Robert L. Karwacki on the Court of Appeals.  Mr. Friedman fills a vacancy created by Judge Albert J. Matricciani, who resigned earlier this year after serving in an at-large seat on the Court of Special Appeals since 2008.

Friedman had been one of the finalists for the three since-filled vacancies that opened last year. Congratulations!

The odds that the full Fourth Circuit will review the good faith of pre-2012 warrantless GPS tracking

By Jonathan Biran

In United States v. Stephens, a divided panel of the Fourth Circuit affirmed a holding of the U.S. District Court for the District of Maryland that the good-faith exception to the exclusionary rule applied to police officers’ concededly unconstitutional warrantless use of a GPS device to track a suspect and obtain evidence in furtherance of his prosecution. Judge Dennis Shedd, an appointee of President George W. Bush, wrote the majority opinion, joined by Senior Judge Clyde Hamilton, an appointee of President George H.W. Bush. An appointee of President Obama, Judge Stephanie Thacker, wrote a dissenting opinion.

A petition for rehearing en banc almost certainly will be filed by the defendant. The question then will become whether the six Obama appointees who are active judges on the Court — and at least two other judges appointed by prior presidents — will choose this Fourth Amendment good-faith case as one to plant their flag in en banc. As I explain below, I doubt that this case will result in a very rare grant of rehearing en banc.

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Corralling National Federation of Independent Business v. Sebelius

By Alan B. Sternstein

In the U.S. Supreme Court’s Affordable Care Act case, National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012) (“NFIB”), five justices of the Court expressed their concurrence in the view, stated most broadly, that the liberty of persons limits the scope of Congressional power under the Commerce Clause of the United States Constitution. Chief Justice Roberts articulated this view in a portion of his opinion for the Court, stating that, “Congress has never attempted to rely on that power to compel individuals not engaged in commerce to purchase an unwanted product,” id. at 2586, and that, “Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation and – under the Government’s theory – empower Congress to make those decisions for him,” id. at 2587. The justices dissenting from the opinion’s decision upholding a federal individual mandate for health insurance as a valid exercise of Congress’s power to tax, Justices Scalia, Kennedy, Thomas and Alito, expressed a broader view, stating that, “Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct …,” id. at 2643 (emphasis added). According to the dissenting justices, “If Congress can reach out and command even those further removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, ‘the hideous monster whose devouring jaws … spare neither sex nor age, nor high nor low, nor sacred nor profane.’” Id. at 2646 (quoting The Federalist No. 33, p. 202 (C. Rossiter ed. 1961)).

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Consolidated Cases: Establishing Commonality for Finality

By Brad McCullough

“There’s many a slip ‘twixt’ the cup and the lip” because “the opera ain’t over ‘til the fat lady sings.”  Or, a case can quickly go in an unanticipated direction because there is no final appealable judgment until all claims are adjudicated – and knowing when that happens in consolidated actions can be tricky. 

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