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Legal news from Tuesday, April 19, 2011




UN rights expert urges Algeria to guarantee freedom of expression
John Paul Putney on April 19, 2011 2:54 PM ET

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[JURIST] UN Special Rapporteur on the right to freedom of opinion and expression Frank LaRue on Tuesday called on Algeria [press release] to "guarantee the right to freedom of opinion and expression" including decriminalizing defamation. LaRue noted that, despite significant progress since the 1990s, which saw more than100 journalists killed, a number of challenges remain. LaRue highlighted that the television and radio sectors remain under government control and do not provide unbiased coverage. He also cautioned that the restrictive legal framework continues to impair important rights including peaceful assembly. LaRue urged continued political reform:
The logic of the past can no longer be used to ignore the expectations of the youth and to limit their freedoms. People from all walks of life, in particular the youth, are now demanding their rights, including the right to freedom of expression, right to freedom of assembly, and basic economic, social and cultural rights, such as job opportunities. The Government should listen to such voices.
LaRue did praise government efforts to provide Internet access to eight million through libraries and public centers.

Last week, Algerian President Abdelaziz Bouteflika [official profile, in French] declared an initiative for sweeping constitutional and political reforms [JURIST report] in order to increase the role of democracy in the African nation. In February, the Algerian Council of Ministers approved a draft ordinance repealing the country's 19-year state of emergency, delivering on a promise made the week before [JURIST reports] by Algerian Foreign Minister Mourad Medelci. The state of emergency gave the government power to limit political freedoms and even peaceful protests. Opponents also claimed that the state of emergency gave rise to arbitrary detentions. Algeria had been under a state of emergency since 1992 when the military canceled elections fearing a win by religious fundamentalists. The state of emergency was declared [DOS backgrounder] after it became apparent that the militant Islamic Salvation Front (FIS) would win control of the government. Bouteflika came to power, winning the presidency in 1999 with 70 percent of the official vote and appearing to have the backing of the military.




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Supreme Court rules federal court may hear state agency claim against state officials
Aman Kakar on April 19, 2011 1:08 PM ET

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[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] 6-2 Tuesday in Virginia Officer for Protection and Advocacy v. Stewart [Cornell LII backgrounder] that a state agency can sue state officials in federal court to remedy a violation of federal law. The Virginia Office for Protection and Advocacy (VOPA) is an independent state agency that is a designated "protection and advocacy" (P&A) system to protect and advocate for the rights of individuals with developmental disabilities under federal law. VOPA sought to force the disclosure of medical records from state officials relevant to the deaths of two individuals who were residents of state-run facilities. In an opinion by Justice Antonin Scalia, the court held that VOPA's action against state officials could proceed under the Ex parte Young [opinion text] doctrine. The court reasoned that the suit satisfies the inquiry under Ex Parte Young of whether the complaint alleges an ongoing violation of federal law, seeks the proper relief and does not offend the distinctive interests protected by sovereign immunity. The opinion stressed that the proper inquiry for determining when a suit is in fact against the sovereign is the effect of the relief sought and not who is bringing the action. The court rejected the respondents' claim that a state's dignity is diminished when a federal court adjudicates a dispute between its components, reasoning that VOPA's power to sue the state officials is a consequence of the Virginia's voluntary decision to establish a public P&A. Additionally, the court reasoned that a state's stature is not diminished to any greater degree when its own agency sues to enforce its officers' compliance with federal law as opposed to a private person bringing a same type of action:
Not every offense to a State's dignity constitutes a denial of sovereign immunity. The specific indignity against which sovereign immunity protects is the insult to a State of being haled into court without its consent; that does not occur just because a suit happens to be brought by another state agency.
The opinion recognized the novelty of VOPA's action, but emphasized that the action contained the necessary elements to invoke the Ex Parte Young exception. The dissent by Chief Justice John Roberts criticized the opinion of the court for expanding a narrow exception. The dissent argued that the majority's decision runs contrary to Alden v. Maine [opinion text] where the court objected to the federal government forcing a state to defend itself before itself.

The opinion overturns the ruling [opinion, PDF] by the US Court of Appeals for the Fourth Circuit [official website] that the suit by the petitioner was barred under the Eleventh Amendment and did not fall within the Ex Parte Young doctrine. The Fourth Circuit reasoned that a suit by a state agency against state officials is an intramural state dispute and to allow it to be brought in federal court would be inconsistent with our system of dual sovereignty. The Supreme Court heard arguments in the case [oral arguments transcript, PDF] last year.




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Supreme Court hears arguments in global warming case
Jaclyn Belczyk on April 19, 2011 12:41 PM ET

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[JURIST] The US Supreme Court [official website, JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Tuesday in American Electric Power Co. v. Connecticut [oral arguments transcript, PDF; JURIST report] regarding whether electric utilities contributed to global warming [JURIST news archive]. The court is being asked to decide (1) whether states and private parties have standing to seek judicially-fashioned emissions caps on five utilities for their alleged contribution to harms claimed to arise from global climate change caused by more than a century of emissions by billions of independent sources; (2) whether a cause of action to cap carbon dioxide emissions can be implied under federal common law where no statute creates such a cause of action, and the Clean Air Act speaks directly to the same subject matter and assigns federal responsibility for regulating such emissions to the Environmental Protection Agency; and (3) whether claims seeking to cap defendants' carbon dioxide emissions at "reasonable" levels, based on a court's weighing of the potential risks of climate change against the socioeconomic utility of defendants' conduct, would be governed by "judicially discoverable and manageable standards" or could be resolved without "initial policy determination[s] of a kind clearly for nonjudicial discretion." The US Court of Appeals for the Second Circuit ruled in 2009 that states can sue power companies for emitting carbon dioxide, reversing a district court decision [JURIST reports] that found the plaintiffs' claim was a non-justiciable political question. The lawsuit was brought by eight states—California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin—as well as New York City and three land trusts, against coal-burning utilities American Electric Power, Southern Company, Xcel Energy, Cinergy Corporation [corporate websites] and the Tennessee Valley Authority [official website]. At oral argument Tuesday, the justices appeared skeptical of the states' arguments, implying that the Environmental Protection Agency would be better equipped to deal with emissions standards than federal courts. The Obama administration has sided with the power companies.



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Syria lawmakers approve bill to end 48-year state of emergency
Sarah Posner on April 19, 2011 12:19 PM ET

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[JURIST] The Syrian legislature on Tuesday passed a bill that, if signed by President Bashar al-Assad [Al Jazeera profile], will end the country's 48-year-old state of emergency. Prime Minister Dr. Adel Safar chaired the legislative session, which voted to end the emergency law [SANA report] that has been in place since 1963. The government also abolished the Supreme State Security Court, which was established in 1968 to try political prisoners and had faced criticism [HRW report] from human rights groups. Additionally, the government passed a bill protecting the right to peaceful protests under the Syrian Constitution [text], but also requiring demonstrators to receive government permission before protesting in public. Safar emphasized the need to improve communications between the Syrian government and its citizens, and the country's recent legislative actions may reflect the government's aim to promote democracy and protect citizens' rights. Pro-democracy demonstrators flocked the streets [Reuters report] in the city of Banias following the government's decision to lift of the state of emergency. Thousands of Syrians have held demonstrations across the country calling for political reform, following similar movements across the Arab world.

Last month, al-Assad ordered the formation of a committee [JURIST report] that evaluated possible elimination of the country's 48-year-old state of emergency law. The panel was composed of legal experts and charged with examining potential legislative measures that would simultaneously preserve national security and allow the revocation of the law, which permitted arrest without charge and banned political protests. The announcement may have been an effort to appease demonstrators, whose activity had recently increased, while also conveying that any future reforms would proceed at a gradual pace. In March, al-Assad announced that the government would consider ending the state of emergency [JURIST report]. Also in March, UN High Commissioner for Human Rights Navi Pillay [official profile] urged the Syrian government [JURIST report] to ensure protesters' rights to peaceful expression and to work toward addressing their concerns instead of responding with violence.




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Tunisia court drops charges in case that triggered protests across Middle East
Maureen Cosgrove on April 19, 2011 10:13 AM ET

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[JURIST] A Tunisian court on Tuesday dropped charges against a police officer who incited protests in several Arab countries when she allegedly slapped a local fruit vendor. Police woman Fedia Hamdi was accused of slapping Mohamed Bouazizi [TAP report] in December in a dispute during which Bouazizi's cart was confiscated after he was allegedly found without a permit. As a result of the encounter, Bouazizi set himself on fire in front of the governor's office on December 17 and died three weeks later [BBC report]. Pro-democracy protesters generally discontented with unemployment, corruption and repression staged several demonstrations following Bouazizi's death. The mother of the late vendor withdrew her complaint against Hamdi, and the Sidi Bouzid Court of First Instance subsequently dismissed the case [AP report].

Protests erupted in several Arab nations following those in Tunisia. Law enforcement authorities in those countries, including Bahrain, Yemen and Egypt, have been heavily criticized for how they have handled the protests. Amnesty International (AI) [advocacy website] released a report [text; PDF] this month urging the international community to pressure Yemeni authorities to investigate the death of protesters [JURIST report]. The UN Office for the High Commissioner for Human Rights (OHCHR) [official website] also urged the Yemeni government [JURIST report] to discontinue using force against peaceful protesters. In March, a commission of Arab and Egyptian human rights groups accused [JURIST report] former Egyptian president Hosni Mubarak [Al Jazeera profile] and the police of murdering protesters during the demonstrations in Egypt.




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House files motion to defend federal marriage law
Matt Glenn on April 19, 2011 9:06 AM ET

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[JURIST] The Republican-led US House of Representatives [official website] filed a motion [text, PDF] Monday with the US District Court for the Southern District of New York [official website] seeking to intervene in a lawsuit challenging the constitutionality of the 1996 Defense of Marriage Act (DOMA) [text; JURIST news archive]. This follows the Obama administration's February announcement that it would no longer defend [JURIST report] the law's constitutionality. The motion, which purports to be unopposed by the plaintiffs and by the US Department of Justice (DOJ) [official website] seeks to instate the House as a defendant for the limited purpose of defending DOMA's constitutionality. At issue is whether Section 3 of DOMA, which defines marriage as being between one man and one woman, violates the Fifth Amendment's due process and equal protection [Cornell LII backgrounder] requirements. Former solicitor general Paul Clement [professional profile] filed the motion and is expected to lead the House's defense.

Last month, Congressional Democrats introduced legislation that would repeal DOMA [JURIST report]. Earlier in March, House Speaker John Boehner (R-OH) [official website] announced the launch of a legal advisory group [JURIST report] to defend DOMA. The American Civil Liberties Union (ACLU) [advocacy website] filed the lawsuit [complaint, PDF; JURIST report] in which the House wishes to intervene last November on behalf of Edith Windsor. Windsor, who was legally married to another woman, is challenging estate taxes assessed on property transferred to her after her wife's death that would not have been assessed on such a transfer between married partners of opposite sex.




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Apple sues Samsung for patent infringement
Aman Kakar on April 19, 2011 8:36 AM ET

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[JURIST] Apple [corporate website] filed suit Friday claiming that the Samsung [corporate website] "Galaxy" line of products copies its iPhone and iPad technology. The complaint, filed in the US District Court for the Northern District of California [official website], includes 10 patent infringement charges, two trademark violations, two trade dress violations and accusations of unjust enrichment and unfair business practices. The complaint describes various physical and software features that are trademarked to Apple and are copied by Samsung, including the slim profile of the phones and the application icons. Samsung representatives have vowed to defend against the suit [Reuters report] and protect their intellectual property. Apple is seeking actual and punitive damages and an injunction to stop Samsung's alleged intellectual property violations.

Apple has also been embroiled in litigation with Nokia marked by trading accusations of patent infringement. Last month, Nokia filed actions against Apple [JURIST report] in the ITC and a court in Delaware accusing Apple of violating seven patents. In December, the litigation spread to Germany, the UK and the Netherlands where Nokia filed 13 patent infringement complaints [JURIST report] against Apple. Last May, Nokia filed a complaint [JURIST report] in the US District Court in the Western District for Wisconsin [official website] alleging that Apple iPad and iPhone 3G products infringe additional Nokia patents. Apple counter-sued last December, claiming Nokia had stolen 13 patents from the company.




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