In Wednesday's federal courts roundup, Judge Jeremy Fogel of the US District Court for the Northern District of California ruled that a produce farm must pay workers for hours spent riding to and from the fields. Fogel ruled that because the growers required workers to ride company buses, the workers must be compensated for their time. The Miami Herald has the full story.... The US District of Columbia Circuit Court of Appeals blocked a judge's order from March 15, thereby allowing the Department of the Interior's web site to go back online. Interior's computers were ordered offline because of repeated failures to secure Indian Trust Accounts from Internet hacking. The shutdown disrupted access to web pages, along with many other Interior programs. AP has the full story.... As reported earlier on JURIST's Paper Chase, the US Supreme Court heard oral arguments to determine if inclusion of the words "under God" in the Pledge of Allegiance violate the Constitution.... Also reported earlier on JURIST's Paper Chase, the US Supreme Court also heard arguments in a case asking whether a prompt review is necessary to determine if zoning regulations violate an adult business' First Amendment rights.

In Congressional news for Wednesday, Senate Republicans failed to invoke cloture today on S 1637, the export tax bill reported yesterday on JURIST's Paper Chase. The 51-47 vote in favor of the cloture motion fell short of the required 60 votes that would have prevented Democrats from moving forward with an amendment designed to protect overtime pay for American workers. According to Reuters, Senate Majority Leader Bill Frist may choose to pull the bill, rather than move forward with the amendment intact, as it is opposed by the White House. The legislation is needed to replace US export subsidies that have triggered sanctions by the World Trade Organization.... The House today began consideration of H Con Res 393, the budget resolution for fiscal 2005. The Hill reports that House Republicans expect passage of the budgetary outline, which members voted to leave unfinished this evening. The budget would leave unchanged most domestic spending, but would preserve a mechanism for employing President Bush's tax cuts. The House Budget Committee offers an extensive collection of documentation and charts on the budget resolution.... The House Transportation Committee today approved two transportation spending bills. The first bill meets White House spending targets of $275 billion. The second bill would set transportation spending at $375 billion, reflecting the amount Republican Committee Chairman Don Young claims is actually needed. According to AP, the second bill was passed to protest the President's tight leash on spending and will not be submitted to the full House. The Committee provides the text of both amendments, as well as a collection of editorials advocating the larger figure.

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In Wednesday's rights and liberties news, the ACLU filed a lawsuit today on behalf of nine same-sex couples challenging Oregon's marriage law, which the ACLU argues deprives same-sex couples of marriage and its attendant rights and protections. The suit in Multnomah County is part of an agreement between the parties and parties who had already filed suits, all hoping to move the issue through the state courts more quickly. Among the parties now involved are four couples are already married after receiving licenses, four couples who were not allowed licenses after their respective counties stopping allowing them, one couple who had not yet applied, Basic Rights Oregon, the Defense of Marriage Coalition, and Multnomah County. All cases by the individual parties have been dismissed in the agreement to be a part of the ACLU's suit. Read the complaint from the ACLU. AP has more.... In Texas yesterday, several civil rights organizations accused the state of removing an excessive amount of minority children from their homes in order to place them in foster homes, thereby receiving extra federal benefits. The Austin chapter of the Citizens Commission on Human Rights, the ACLU, the NAACP, and the Texas Center for Family Rights allege that the state is abusing the federal Adoption and Safe Families Act of 1997, which allows for higher federal foster-care reimbursement and adoption bonuses for children deemed 'special needs' - over the age of two for minority children, but six and older for white children. The groups argue that this has resulted in an increase in black and Hispanic children in the foster system, arguably supported by statistics that reveal that while black children constitute 12% of the state child population, they make up 31% of the foster child population. AP has more.

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Wednesday's UCBerkeley News offers an excellent collection of resources relating to Elk Grove Unified School District v. Newdow, better known as the Pledge case, argued today in the US Supreme Court. Resources include a webcast of oral arguments made by Newdow and Professor Vikram Amar of the Hastings College of the Law in a moot court hearing at Berkeley's Boalt Hall School of Law in February. Boalt's American Constitution Society, the organizer of the moot court exercise, offers all of the briefs here. Newdow actually participated in several such exercises to sharpen his case for today's arguments. See, for example, JURIST's report here on his participation in a mock trial at the University of Washington School of Law.

In other law school news, the Boston College Third World Law Journal's latest issue carries an article called "Reparations Talk" by Professor Alfred Brophy of the University of Alabama School of Law. Professor Brophy has made headlines, including JURIST's here, by publicly calling on his university to acknowledge and apologize for its historical ties to slavery, and to consider paying reparations to descendants of slaves. Subtitled "Reparations for Slavery and the Tort Law Analogy," his article in the Journal assesses optimistically the possible role of tort law in assigning moral culpability and ultimately in obtaining reparations payments. Click on the title above for the full article.

Here's Wednesday's legal news from the US Department of Justice. The DOJ's Assistant Attorney General for Antitrust today issued a statement on the European Commission's decision in the case against Microsoft (previously reported on JURIST's Paper Chase ), suggesting that the imposition of a record fine was "unfortunate" given the conduct at issue:

The U.S. experience tells us that the best antitrust remedies eliminate impediments to the healthy functioning of competitive markets without hindering successful competitors or imposing burdens on third parties, which may result from the EC’s remedy. A requirement of ‘code removal’ was not at any time - including during the period when the U.S. was seeking a breakup of Microsoft prior to the rejection of that remedy by the court of appeals - part of the United States’ proposed remedy.

Imposing antitrust liability on the basis of product enhancements and imposing ‘code removal’ remedies may produce unintended consequences. Sound antitrust policy must avoid chilling innovation and competition even by ‘dominant’ companies. A contrary approach risks protecting competitors, not competition, in ways that may ultimately harm innovation and the consumers that benefit from it. It is significant that the U.S. district court considered and rejected a similar remedy in the U.S. litigation.

While the imposition of a civil fine is a customary and accepted aspect of EC antitrust enforcement, it is unfortunate that the largest antitrust fine ever levied will now be imposed in a case of unilateral competitive conduct, the most ambiguous and controversial area of antitrust enforcement. For this fine to surpass even the fines levied against members of the most notorious price fixing cartels may send an unfortunate message about the appropriate hierarchy of enforcement priorities.

Read the full DOJ statement here..... As reported story earlier on JURIST's Paper Chase, Solicitor General Theodore Olson argued before the US Supreme Court in support of the Pledge of Allegiance in schools, complete with the phrase "under God". Read the Solicitor General's brief here [PDF].

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In international law new Wednesday, in a report circulated to EU delegations today, Bertie Ahern, Irish Prime Minister and current head of the EU, said that he believes that outstanding issues in negotiations over the draft EU constitution can "be resolved without undue difficulty." Ahern identified the most difficult remaining issues to be the size and composition of the European Commission, the proposed new voting system and the minimum seat threshold in the European Parliament. The Irish EU Presidency has this press release. EUobserver.com has more.... In a related story, Poland's Prime Minister has said that "the Polish government is open to a dialogue on working out a compromise" in the dispute over voting rights in the enlarged EU. The UK's Daily Telegraph has more. In testimony before the Senate Environment Committee, the US Assistant Secretary of State for Oceans Policy, John Turner, expressed support for Senate approval of the UN Convention on the Law of the Sea. Turner testified that the Bush administration continues to support Senate ratification of the treaty and said that ratification would promote the administration's initiative against weapons proliferation by promoting a common legal framework for boarding and intercepting vessels. The US State Department has more. Read the text of Turner's statement and additional testimony before the Senate committee.... As previously reported on JURIST's Paper Chase, the UN Commission on Human Rights has passed a resolution condemning Israel for its targeted killing of Hamas leader Ahmed Yassin.... Finally, also as previously reported on JURIST's Paper Chase, the European Commission has fined Microsoft $613 million for breaches of EU antitrust rules.

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The Federal Trade Commission [FTC] has sued the Liberty Media Corp.'s QVC home shopping channel charging that it made deceptive claims about weight-loss products sold on the air. The complaint states that QVC conducted false advertising of "For Women Only" weight-loss products such as zero-fat and zero-carbohydrate pills. Many of the claims by QVC were scientifically impossible. The FTC is seeking substantial penalties including civil penalties, consumer refunds, and other penalties. Fines against the company could reach into the millions of dollars. In 1999, the FTC had settled a similar case against the Home Shopping Network for $1.1 million. Read the FTC press release announcing the suit here. Read the complaint against QVC here[PDF]. Reuters has more.

The US Supreme Court heard arguments Wednesday in a case involving local zoning laws in Littleton, Colorado related to the site of an adult bookstore. Attorneys for the adult bookstore say the local zoning law, which prohibits the selling of merchandise which is adult in nature within 500 feet of a school or day care facility, violates its First Amendment rights and should be guarenteed a quick judicial review. Several justices expressed skepticism during arguments saying the threat to the sex shop's First Amendment rights are not severe enough to leapfrog over other important cases. The US District Court ruled against the sex-shop; however, the Tenth Circuit Court of Appeals sided with the shop owners saying a prompt review was necessary to avoid First Amendment subterfuge. The docket number for this case is 02-1609. Read the briefs for the city and the adult bookstore here. Read the Tenth Circuit Opinion here. AP has more.

In environmental law news for Wednesday, Senators from around the country have voiced their concerns over rules relating to mercury emissions by coal burning power plants as well as health warnings about mercury in fish. At the forefront of the debate are Vermont Senators James Jeffords and Patrick Leahy who have written letters to EPA administrator Mike Leavitt expressing their discontent with the agency's role in regulating mercury. Jeffords' letter called for an investigation into "undue industry influence in the rulemaking process" with regards to a cap and trade plan [PDF] aimed at decreasing industrial mercury emissions, while Leahy joined in drafting a letter by three dozen other senators calling for increased public advisories regarding mercury exposure and consumption. AP has more... In other news, CNS reports that the EPA will try to delay the global phaseout of the chemical methyl bromide as the agency has come under pressure from fruit and vegetable farmers that rely on the pesticide for increased crop yields. Methyl bromide was discovered to be harmful to the ozone layer in the 1990s and was one of the substances that were to be phased out by countries that signed the Montreal Protocol... AP notes that Sunoco Inc has agreed to pay $475,000 in settlement of an Ohio lawsuit that accused a Toledo refinery of violating clean air regulations. The suit filed by the state marks the third time in recent years that the Sunoco plant has been sued for sulfur dioxide emissions.

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The trial of a former Congolese officer Sebastian Nzapali, also known as the "King of Beasts" because he raped and tortured prisoners in his home country, has concluded in Netherlands. Nzapali was tried for allegations he was on a execution squad under a new law which enables the prosecution of atrocities committed abroad if the suspect lives in the Netherlands. The law, designed to root out war crimes suspects taking refuge within its borders, is modeled on the treaty that created the International Criminal Court. This is considered a test case in the Netherlands because several other similiarly situated suspects are currently under investigation. Prosecutors had to drop murder charges against Nzapali but still hope to gain a five year sentence. A verdict is expected within two weeks. AP has more.

A Taiwan court has temporarily blocked a bid by the opposition in last Saturday's presidential election to have the results ruled invalid. The court stated that because President Chen Shui-bian's victory had not yet been officially confirmed, the results could not be contested. President Chen was re-elected by a margin of 0.2% of the vote hours after a failed assasination attempt. The court ruling came after politicians of both parties tried to reach a deal which would allow a recount of the votes cast in the presidential election. Parliament was to meet Friday to agree to a change in the law which would allow recounts in close races but the opposition party KMT scuttled those plans insisting Chen should ask for a recount before any changes in law are made. The court did rule that once the results are official, the challenge may be re-filed. Read the press release from the Taiwan high court detailing its decision here. Read the government's press release relating to the recount controversy here. BBC has more.

In cyberspace law news Wednesday, members of the Senate communications subcommittee announced that it is working on defining "spyware" in order to regulate it. At issue is the proposed SPYBLOCK Act, which would make it unlawful to secretly install programs on others' computers. One of the first legislative steps is nailing down a definition of "spyware" that would allow for commercial enterprises like pop-up ads, but prevent more maicious programs. Read the testimony of the Center for Democracy & Technology (CDT) given before the Senate subcommittee on Tuesday here.[PDF] Currently only one state, Utah, has passed anti-spyware legislation....In other news, Reuters announced that it will begin using new software to track copyright violations of its news content. The company will begin using the Norway-based Fast Search & Transfer (FAST) software to identify the unauthorized use of Reuters content both online and in print media.

In Wednesday's family law news, a Tennessee House subcommittee has quashed a bill [PDF] to prevent the state from recognizing same-sex marriages performed in other states. Although Tennessee already has a defense of marriage law, some felt the bill was needed to prevent courts from interpreting a loophole in the law and allowing recognition. 365Gay.com has more. The Kentucky House of Representatives blocked a similar bill yesterday when they blocked a vote on a proposed amendment to the state consitution that would ban same-sex marriage in the state. Having already passed the Senate, the amendment would have been on the ballot this November had it been passed by the House. Proponents say they will continue to push for the bill. The LouisvilleChannel.com has more.

In Wednesday's criminal law and punishment news, AP reports that on Tuesday the Pennsylvania Supreme Court vacated the death sentence of Timothy Boczkowski. The Court said that prosecutors from Allegheny County, Pennsylvania, should not have extradited Boczkowski to North Carolina for a murder trial in order to later use the North Carolina murder conviction to qualify Boczkowski for the death penalty in Pennsylvania. Read yesterday's opinion here [PDF].... Despite a parole board's recommendation to the contrary, Oklahoma executed a Vietnamese national on Tuesday for killing another refugee. Prior to the murder, the two men had been business associates. For a breakdown of executions by state in 2004, click here. Reuters has more.

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AP is reporting that a Spanish judge has charged two more individuals - a Moroccan man and his stepsister - in connection with the Madrid train bombings. The number of persons charged now stands at 11.

In Wednesday's corporations and securities law news, Putnam Investments and the SEC are fighting over how much the company should pay in fines over its role in improper mutual fund trading in which it failed to stop six of its fund managers from allegedly making so-called market timing trades that lowered returns for shareholders. The SEC believes Putnam should pay a fine in the "hundreds of millions of dollars." Read the SEC complaint against Putnam here. Bloomberg.com has more.... As reported earlier on JURIST's Paper Chase, the European Commission has fined Microsoft $613 million and ordered the company to reveal secrets of its Windows software, which sits on 90% of the world's PCs. Consumer groups and Microsoft rivals have applauded the decision by the EU to punish Microsoft. Read the European Commission press release announcing the punishment here. Read a transcript of the reaction from Microsoft CEO Steve Ballmer and Microsoft General Counsel Brad Smith here. BBC has more.... Four former Qwest Communications executives, on trial for fraud and conspiracy charges related to their booking of $34 million in revenue in violation of accounting rules, asked a judge to find them innocent on the basis that government prosecutors did not prove their case. The judge will not immediately rule on the request. Read the DOJ press release relating to the indictment of the executives here. AP has more.... An Italian judge has rejected a request by prosecutors for an immediate trial of the founder of Parmalat, Calisto Tanzi, as well as Bank of America, two auditing firms and 28 others, dealing the first setback in the investigation of the largest bankruptcy in Italian history. Bloomberg.com has more.... Ex-Disney director Roy Disney has requested the company disclose how many shares voted by employees participating in Disney's retirement plans did not back Chief Executive Michael Eisner's re-election to the board. Bloomberg.com has more.... A federal bankruptcy judge in Oklahoma has approved an agreement between WorldCom and the state's attorney general which settles criminal charges filed in connection with the massive accounting scandal that led to the company's bankruptcy in 2002. The Washington Post has more.... Coca-Cola abandoned plans to launch its natural mineral water Dasani in Europe less than a week after a health scare in the UK prompted a total recall of the brand. Read the Coca-Cola press release relating to the recall from the UK here. The Financial Times has more.

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Atheist Michael Newdow called the phrase "under God" in the Pledge of Allegiance an unconstitutional indoctrination of children contrary to the Establishment Clause, but oral arguments by other parties before the Supreme Court Wednesday challenged his standing to bring the case in the first place. Terence Cassidy, attorney for Newdow's daughter's school district, told the court that the "ultimate decision-making authority" resides with the nine-year-old girl's mother, who has primary custody. Looking beyond standing temporarily, Solicitor General Theodore Olson added that the Pledge should be upheld as a "ceremonial, patriotic exercise." In questions to Newdow from the bench, none of the Justices appeared to embrace his position, with even Justices Souter and Ginsburg expressing doubts. AP has more. Bloomberg has this late report. JURIST's Paper Chase provides additional background on the case here.

The UN Commission on Human Rights passed a resolution Wednesday condemning Israel for its targeted killing of Hamas leader Ahmed Yassin in a pre-dawn air strike in Gaza Monday. The resolution, proposed by the Organization of the Islamic Conference, Cuba and Zimbabwe, passed by a 31-2 vote, with the US and Australia voting against it. Israel's Ambassador said that countries are eager to divert attention from their own human rights record by engaging in "Israel-bashing." AP has more. The Commission resolution follows a UN Security Council meeting in New York Tuesday evening (previously reported on JURIST's Paper Chase) in which most speakers also condemned the killing.

UPDATE: A summary of the Commission meeting on the Yassin killing is now available from the UN's Geneva press office here.

In a decision handed down this morning, the US Supreme Court has held that a Missouri statute prohibiting "political subdivisions" - for instance, municipalities or municipally-owned utlities - from providing telecommunications service does not conflict with 47 U.S.C §253, which authorizes preemption of state and local laws that prohibit the ability of "any entity" to provide telecommunications service. The Court held that the class of entities contemplated by §253 doesn't include the state's own subdivisions. The case is Nixon v. Missouri Municipal League (case backgrounder from Duke Law School's Program in Public Law). Cornell's Legal Information Institute has posted today's opinion per Justice Souter, along with Justice Scalia's concurrence and Justice Stevens' dissent. Bloomberg has more.

The National Commission on Terrorist Attacks Upon the United States continues its eighth session of public hearings Wednesday in Washington DC on the formulation and conduct of US counterterrorism policy. Today's witnesses include CIA Director George Tenet, former Clinton National Security adviser Sandy Berger, former NSC Coordinator for Counterterrorism Richard Clarke (author of a just-released book critical of Bush administration counterterrorism policy - see excerpts from his CBS 60 Minutes interview), and Deputy Secretary of State Richard Armitage. The full agenda of today's hearing is here. Watch the proceedings live here via C-SPAN beginning at 8:30 AM ET. The New York Times offers a full transcript of Tuesday's testimony. Prepared statements are available from the Commission here. C-SPAN provides recorded video of Tuesday's session.

UPDATE: The prepared statements of witnesses at Wednesday's hearing are now online here. C-SPAN provides recorded video of Wednesday's session here (morning) and here (afternoon - includes testimony by former counterterrorism director Richard Clarke).

Atheist Michael Newdow will argue in the US Supreme Court Wednesday that the recitation of the Pledge of Allegiance with the words "under God" (added to the original 1892 Pledge in 1954) in public schools is an infringement on the Establishment Clause of the US Constitution. Only eight Justices will hear the case - Justice Antonin Scalia recused himself at the request of Newdow after he criticized a lower court ruling favoring Newdow at a 2003 rally. The Supreme Court litigation firm of Goldstein & Howe in DC offers a convenient summary of the case, and links to the briefs. CBS News has more. The Newdow-associated website Restorethepledge.com carries case filings and background material on the litigation.

As anticipated yesterday on JURIST's Paper Chase, Microsoft was today hit with a record $613 million (€497.2) fine by the European Commission, which additionaly directed the company to unbundle its media player from its Windows operating system within 90 days and provide code to competitors within 120 days that would allow them to achieve interoperability with Microsoft-powered servers. The official European Commission announcement is here. It reads in part:

Microsoft abused its market power by deliberately restricting interoperability between Windows PCs and non-Microsoft work group servers, and by tying its Windows Media Player (WMP), a product where it faced competition, with its ubiquitous Windows operating system.

This illegal conduct has enabled Microsoft to acquire a dominant position in the market for work group server operating systems, which are at the heart of corporate IT networks, and risks eliminating competition altogether in that market. In addition, Microsoft's conduct has significantly weakened competition on the media player market.

The ongoing abuses act as a brake on innovation and harm the competitive process and consumers, who ultimately end up with less choice and facing higher prices.

For these very serious abuses, which have been ongoing for five and a half years, the Commission has imposed a fine of € 497.2 million.

In a press release, Microsoft said that it would seek legal review of the Commission's decision in the Court of First Instance in Luxembourg, and insisted that its proposed settlement offer (declined last week) would have been better for European consumers. BBC News has more. AFP offers a perspective on the probable legal trajectory of the case.

In Wednesday's US law and business press, the Texas Lawyer reports on a TX death row inmate who is hoping that the US Supreme Court will declare the execution of someone who committed a crime under the age of 18 unconstitutional.... According to the Sacramento Business Journal, the National Wildlife Federation and other conservation groups have filed a complaint in the US District Court in Sacramento alleging that the 2003 Natomas Basin Habitat Conservation Plan violates the Endangered Species Act.... The New York Law Journal reports that a NY federal judge has certified a federal civil rights suit by Xerox employees against that company as a class action.... The St. Louis Business Journal reports that plaintiffs in a settlement over PCB contamination by Monsanto Co. and Solutia Inc. will receive millions of dollars less than the attorneys on the case.... The New Jersey Law Journal reports that pro bono attorneys for some NJ heirs of 9/11 victims are concerned that the federal government's compensation investment policy could dissipate some minors' funds.... FindLaw's Writ features Columbia law professor Michael C. Dorf's column on Justice Antonin Scalia's response to the Cheney duck hunting controversy, as well as Brooklyn law student Michael Lynch's guest column on prosecuting professional sports.

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On March 24, 1661, William Ledda, executed in Boston, became the last Quaker in the American colonies to be put to death for his religious beliefs. Learn more about the persecution of the Quakers in colonial Massachusetts.