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Posts by Michael Stephan

Jun 6

Some Courts Are Still Afraid of the Internet

Posted 350 days ago by Michael Stephan

Electronic filing of court documents has become a relatively common practice in this country. Nearly all jurisdictions allow electronic filing in some manner, and the Federal Rules of Civil Procedure expressly permit electronic filing. The benefits of filing documents electronically rather than physically are clear: it’s typically cheaper, faster, and easier.

Nevertheless, some courts still require paper-and-ink documents to arrive in their mailboxes. On Tuesday, the Ninth Circuit questioned this requirement when an immigrant missed a filing deadline by one day due to a Postal Service error. The decision, Irigoyen-Briones v. Holder, calls on courts to “assume the availability of email and the internet when [assessing] the reasonableness of government action.”

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May 26

Effects of Heller Become More Apparent

Posted 361 days ago by Michael Stephan

The Supreme Court’s controversial decision in District of Columbia v. Heller (2008) drew speculation from both sides of the gun-rights debate as to what our Second Amendment means today. The Second Amendment, which was largely unexplored by the Court until Heller, was held to protect individuals’ rights to possess firearms and to use those firearms for traditionally lawful purposes unrelated to service in a militia.

Now, three years later, we are still unclear about the contours of our Second Amendment as courts grapple with Heller and its progeny. That may soon change, however, as courts reconsider run-of-the-mill constitutional law cases as Second Amendment cases. A recent Ninth Circuit case, for instance, does just that.

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May 16

Minister Cannot Intervene to Defend Parsonage Tax Exemption

Posted 371 days ago by Michael Stephan

The Ninth Circuit answered an important tax law question involving the Establishment Clause and civil procedure this week in Freedom from Religion Foundation v. Rodgers.  In short, the appellate court considered whether an individual who claims federal tax exemptions may intervene as of right in an action challenging the constitutionality of those exemptions.  Besides raising a pressing constitutional question about tax exceptions for ministers, Rodgers shows prospective litigants what it takes to intervene as of right on the side of the government. . . .

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Apr 28

Sovereign Immunity Case Raises Question of Courts Lawyering for Parties

Posted 389 days ago by Michael Stephan

To what extent should courts investigate an issue or argument sua sponte when the party benefiting from that investigation failed to persuasively raise the issue or argument?  

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Apr 21

Ninth Circuit Reconsiders Whether a “Citation” Is an “Arrest”

Posted 396 days ago by Michael Stephan

On Tuesday, the Ninth Circuit Court of Appeals decided to hear United States v. Leal-Felix en banc.  When a case is reheard en banc, the three-judge panel opinion is stripped of precedential force and—in the Ninth Circuit—a new, eleven-judge panel rehears the case.  En banc hearings are relatively uncommon and are typically reserved for cases of particular importance, many of which are later heard by the Supreme Court.

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Apr 14

Foreign Plaintiffs Gain Greater Access to US Courts

Posted 403 days ago by Michael Stephan

If you read one opinion about forum non conveniens this year, it should be Gutierrez v. Advanced Medical Optics. The Ninth Circuit gave eight Mexican citizens a second chance to sue a US medical manufacturing company after a district court dismissed their case.  The case has a gruesome set of facts, including removed eyes and blindness, and establishes an important rule of civil procedure that will aid foreign plaintiffs.

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Apr 7

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Case to Follow: Can a New Law Affect an Old Plea Agreement?

Posted 410 days ago by Michael Stephan

The Ninth Circuit certified an interesting question to the California Supreme Court on Monday: Are parties to a plea agreement bound by the law in effect at the time of the agreement, or can the terms of the plea agreement be affected by subsequent changes in the law?  In other words, can a new law change the terms of an old plea agreement? 

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Mar 31

What’s the Deal with Unpublished Circuit Decisions?

Posted 417 days ago by Michael Stephan

Last week, the Supreme Court sharply criticized a Ninth Circuit decision for being “as inexplicable as it is unexplained.” The Court reversed Jackson v. Felkner, an unpublished, three-paragraph memorandum disposition in which the Ninth Circuit granted habeas relief to a prisoner alleging a Batson violation. The Court held that the Ninth Circuit misapplied the Antiterrorism and Effective Death Penalty Act—a topic touched upon by this blog—and chastised the Ninth Circuit for disposing of the case with such a short, “dismissive” opinion. The Supreme Court’s criticism raises an interesting question: Why do circuit courts use memorandum dispositions in the first place?

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Mar 24

Deportation of Sympathetic Immigrant Draws Fiery Dissent

Posted 424 days ago by Michael Stephan

Last week, the Ninth Circuit denied a particularly sympathetic immigrant’s petition for cancellation of removal (i.e., deportation).  The petitioner, Evaristo Martinez-Pioquinto, is the father of five American-born children, two of whom suffer serious medical conditions.  The facts of Martinez-Pioquinto’s case are so heart-wrenching that Judge Harry Pregerson wrote a dissent calling the majority opinion “absurd” and “unconscionable.”

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Mar 11

Bar Examiners Charge State Bars $5,000 for Disability Accomodations

Posted 437 days ago by Michael Stephan

The National Conference of Bar Examiners has been on the losing side of a legal battle over what special accommodations it must provide to blind takers of the Multistate Bar Exam.

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