1st Circuit Judicial Conference Part II


Continuing my summary of the presentations in the conference last week, we had another twinning of speeches, this time on the balance between security and civil liberty interests.  First up on that subject was Robert Mueller, ex-head of the FBI.  I unfortunately had to miss that one.  The next speaker was Justice Breyer, who provided a succinct and very digestible summary of the big Supreme Court decisions in this area, from Lincoln’s suspension of the writ of habeas corpus, to the infamous interning of those of Japanese descent in World War II, to the steel seizure case, on to Guantanamo.

Next up was Professor Jeffrey Fisher, who summarized some recent Supreme Court decisions. I do not practice much in the criminal defense arena, but one case many are discussing (Justice Breyer also mentioned it) is Yates v. U.S., No. 13-7451 (Feb. 25, 2015).  This is the “fish” case – whether fish are a “tangible object” under the Sarbanes-Oxley Act.  Why is everyone so interested in this decision of apparently limited application?  First, some read it as expressing the Supreme Court’s general view that Congress has gone overboard with creating federal crimes.  Second, others are trying to read it as saying something about interpreting statutory text in light of  the next blockbuster health act case coming down the pike (Burwell), which also involves the question of whether/how the Court should go beyond literal statutory text to discern legislative intent.     

Prof. Fisher had interesting things to say about some other decisions, such as the Fourth Amendment cell phone search case Reilly v. California, 134 S. Ct. 2473 (2014).  His bottom line on that issue (he  argued the case) is that you can’t really analogize to previous search precedent; new technology calls for new thinking on a case-by-case basis.

On the upcoming Burwell case, he asked what I think is a thought provoking question.  When deciding this issue, one purely of statutory intent, does/should the Court envision the ideal Congress, which if it disagrees with the Court’s reading can simply fix the statute?  Or does it take into account the current Congress, where revising legislation seems to be an uphill climb in general, let alone in this area?  He said that in the argument, Justice Kennedy looked like he might be thinking there are constitutional issues in the case relating to state coercion, while CJ Roberts made noises that maybe the statute is ambiguous, so the Court should defer to the agency rules. 

He also mentioned the pregnancy disparate impact case (there’s another disparate impact FHA discrimination coming), saying that everyone thought when the Court took the pregnancy case, it did it to flip the rulings below ruling that disparate impact didn’t apply, but the argument suggested no, the Court would find that claims could be based on disparate impact.  He predicted correctly.  Since his speech, the Court ruled so ruled.  Young v. UPS, No. 12-1226 (Mar. 25, 2015).

Next up was Kathleen Sullivan, another biggie and a great speaker, telling us what’s new in First Amendment jurisprudence.  I’ve blogged on this like many others, who have pointed out that the Roberts Court is very protective of free speech, and that this area of the law makes strange bedfellows among the court, with free speech protection affecting many different constituencies.  

On the First Amendment front, her points were:  (1) this Court isn’t creating any new unprotected categories of speech (unlike some countries which are, for example, regulating racist speech etc.); (2) the unconstitutional conditions doctrine, once embraced by the liberal side, is now being cited by conservatives; and (3) this Court is emphasizing the liberty v. equality as the value protected under the amendment.  She then went through the recent case law, illustrating these points. 

Finally, we ended with the state break out sessions.  Maine’s was led by Judge Nancy Torreson.  The takeaway from the session to me was the huge turnover we’ve had on the bench from the last conference — although they seem mostly to be moving sidewise toward senior status, not out.  On the First Circuit, Judges Boudin and Lipez went to senior status, while Judges Kayatta and Barron came in.  On the District Court level, Judges Hornby and Singal went to senior status, with Judges Torreson and Levy coming in.  Both bankruptcy judges have retired and have been replaced.  Magistrate Judge Kravchuk retired, replaced by Judge Nivision.

Judge Kayatta continues to take care of the Criminal Justice Act vouchers and everyone applauded the CJA lawyers for their work.  He said he was struck by the isolated nature of the judging job when he arrived on the bench.  The day after he began his job he checked with the IT folks to find out if there was anything wrong with his phone.

The discussion of what’s doing on the civil rules front focused mostly on jury questionnaire, voire dire and scheduling.  (So I guess they still have a trial once in a while.)  Judge Woodcock noted that in the newly renovated court house in Bangor there are now two court rooms big enough for juries, so that if you are willing to get someone other than him/agree to a magistrate, it’s easier to get a special assignment.  (He’s doing the criminal cases required to get first dibs under the speedy trial act.)  It was a comforting to hear David Webbert speak up on the jury front.  Tradition.

Judge Levy is running the criminal law committee, consisting of various stakeholders, talking about things like public access to sentencing documents, restitution for child pornography victims, etc. and developing best practices.

Phew.  That’s it. 

I’m switching over to a different blog support system, so if you are a subscriber or otherwise and don’t see an entry for a while, let me know – there might have been an IT snafu.  Email me at  cconnors@pierceatwood.com.

Coming up in a few weeks is my biannual AAAL conference out west.  (Santa Fe – sun!)  It looks like technology is going to be a big part of that discussion.  Your intrepid reporter, will, of course, communicate what’s doing on all appellate fronts.