miércoles, 23 de enero de 2008
NYT: Suplemento sobre magistrados del Tribunal Supremo
El New York Times ha creado una página muy didáctica con la biografía y principales decisiones de los miembros más reciente del Tribunal Supremo de los Estados Unidos, Alito y Roberts.
NYT: Agentes de la ley son inmunes por pérdida o robo de bienes incautados
Justices Broaden Immunity for Officers
By LINDA GREENHOUSE
WASHINGTON — Federal law enforcement officers are immune from lawsuits for mishandling, losing or even stealing personal property that comes under their control in the course of their official duties, the Supreme Court ruled on Tuesday in a 5-to-4 decision.
The case was brought by a federal prison inmate, but the ruling was not limited to the prison context. It was an interpretation of the Federal Tort Claims Act, which applies to federal employees’ liability for damages and generally waives immunity from being sued.
The statute has numerous exceptions that preserve immunity in particular situations, however.
The exception at issue in the case provides that “any officer of customs or excise or any other law enforcement officer” will be immune from suit for “any claim arising in respect of the assessment or collection of any tax or customs duty or the detention of any goods, merchandise or other property.”
The question was the meaning of the phrase “any other law enforcement officer.” Did Congress mean to confer blanket immunity for property-related offenses on the part of any federal law enforcement officer? Or was the immunity limited to officers engaged in tax or customs work?
The answer was sufficiently ambiguous that of the 11 federal circuits of appeals to address the issue, six had interpreted the exception as applying broadly to all officers, and five had read it narrowly to apply only to property seizures connected to revenue or customs enforcement.
The answer was sufficiently ambiguous that of the 11 federal circuits of appeals to address the issue, six had interpreted the exception as applying broadly to all officers, and five had read it narrowly to apply only to property seizures connected to revenue or customs enforcement.
The Supreme Court majority, in an opinion by Justice Clarence Thomas, chose the broad interpretation. When Congress enacted the law in 1946, “it could easily have written ‘any other law enforcement officer acting in a customs or excise capacity,’ “ Justice Thomas wrote, adding, “We are not at liberty to rewrite the statute to reflect a meaning we deem more desirable.”
Beyond the holding in the case, Ali v. Federal Bureau of Prisons, No. 06-9130, this first 5-to-4 decision of the current term was notable in several respects.
Justice Anthony M. Kennedy wrote a dissent that was signed by the three other dissenters, John Paul Stevens, David H. Souter and Stephen G. Breyer. In the court’s last term, Justice Kennedy voted with the majority in all 24 of the 5-to-4 decisions.
His position on Tuesday meant that the swing vote was cast by Justice Ruth Bader Ginsburg, who in closely divided cases can almost always be found with Justices Stevens, Souter and Breyer. She did not write separately to explain her position.
Justice Kennedy said the majority had failed to adhere to longstanding principles of statutory interpretation, including the rule that “a single word must not be read in isolation, but instead defined by reference to its statutory context.”
He said the majority had mistakenly focused on the word “any” in the phrase “any other law enforcement officer,” when it was clear from the context that Congress was discussing only customs and revenue seizures.
Justice Breyer made a similar point in a dissenting opinion of his own. “It is context, not a dictionary” that matters the most, he said.
The plaintiff, Abdus-Shahid M. S. Ali, was being transferred from a federal prison in Atlanta to one in Inez, Ky., and left two duffle bags of personal property to be shipped. When he received the bags, religious articles, including two copies of the Koran, were missing.
Valuing the missing items at $177, Mr. Ali filed suit, appealing to the Supreme Court after the federal appeals court in Atlanta had dismissed his case in the decision that the justices affirmed.
WSJ: Mukasey testificará ante el Congreso
Mukasey Shows Independent Streak
Big Test Awaits Attorney General When He Testifies Before Senate Panel
By EVAN PEREZJanuary 23, 2008; Page A4
WASHINGTON -- Arriving at the Federal Bureau of Investigation's holiday party last month, Attorney General Michael Mukasey went directly to the registration table for surnames starting with M. Staff members gently advised him there was no need to register. He is the boss at the FBI, too.
• The News: Attorney General Mukasey's displays of independence may frustrate Congress and the White House.
• The Setting: He has set out to restore morale and reputation at the Justice Department.
• What's Next: Mukasey next week returns to the Senate to face the question that n
early ended his confirmation: Is waterboarding torture?
Mr. Mukasey was picked as the country's 81st attorney general to restore morale and independence to a department tarnished by the tumultuous tenure of his predecessor, Alberto Gonzales. In his first two months, Mr. Mukasey has behaved like a Washington outsider, allowing him to stick a finger in the eye of the Washington establishment.
Last month, he shot down demands from senators for an independent investigation into the destruction of detainee-interrogation videotapes by the Central Intelligence Agency. He instead ordered a criminal inquiry led by a tough Connecticut prosecutor who will remain inside Mr. Mukasey's chain of command and will lead a team largely drawn from Justice's headquarters.
Mr. Mukasey's aides are enforcing his orders to restrict contact with the White House.
"On the one hand, I'm nominated by the president," Mr. Mukasey said in an interview aboard a jet en route to Mexico City last week. "On the other hand, the oath is to protect and defend the Constitution. And so that's my job on a day-to-day basis."
MORE
Read excerpts from Mr. Mukasey's interview with the Journal.
As for standing up to the White House and Congress, he said: "I don't feel obligated to show my independence, or go swaggering about to display it."
Mr. Mukasey's portfolio includes some of the White House's most controversial policies, including the legal underpinnings of wiretapping, interrogation methods and gun laws. As a result, it is an open question how far he can carry his independent streak, given the sensitivity of these matters. The attorney general is courting lawmakers and has already softened in some areas, such as backing off supporting a new system to try terrorist detainees.
Marc Mukasey, who heads the white-collar-defense practice at Bracewell & Giuliani LLP in New York, said his father is most comfortable being "a regular guy." He recalled seeking advice before starting work as a prosecutor in the U.S. attorney's office in New York's southern district, where his father worked decades before.
"He said, 'Can you get a pen and paper?'" Marc Mukasey recalled. "I said, 'Sure.' He said, 'Here's the words of wisdom: Don't screw up.'"
The 66-year-old Bronx native, previously chief judge of the U.S. District Court in New York's Southern District, remains a nonresident in Washington. His wife lives in New York, near their grandsons, while he commutes weekly.
Mr. Mukasey is conservative not only in his politics but in words and manner. As a judge, he assigned new law clerks George Orwell's 1946 essay "Politics and the English Language," a denunciation of the "slovenliness" of contemporary written English, which the author said caused vagueness and dishonesty in political discourse.
Since arriving in Washington, he has expressed puzzlement at the alphabet soup of acronyms and jargon, notably phrases as "run the traps" or "outside my lane." Recently, one friend "was ragging me mercilessly," he recalled, after noting that Mr. Mukasey slipped into Washingtonese during his confirmation hearings. (He said he couldn't answer a question because he hadn't yet been "read in" to, or briefed on, a classified program.)
A big test will come next week when he goes before the Senate Judiciary Committee, which narrowly approved his confirmation in November. Democrats and Republicans alike said at the time they expected more complete answers after he was briefed on the Bush administration's antiterror strategies.
During confirmation hearings, Mr. Mukasey gave some vague responses to the question of whether an interrogation technique known as waterboarding constitutes torture. "If waterboarding is torture, torture is not constitutional," he said. Told by Rhode Island Sen. Sheldon Whitehouse that his answer was "semantics," Mr. Mukasey responded, "Sorry."
Asked last week whether he was prepared to answer senators' questions on waterboarding, Mr. Mukasey responded: "When? At this point in time?"
Mr. Mukasey said his response was an example of what the late New York sports columnist, Murray Kempton, would have described as "constabulary style" or one that "aims at precision but never achieves clarity."
Reminded that he hadn't answered the question, Mr. Mukasey said: "Yes, I've been read into the program, but that's part of a process. I said I would look at the program. Look at the letters. And give my answers. I haven't yet figured out precisely when and precisely how. I understand that the time is coming."
The arrival of Mr. Mukasey has paid dividends for the Justice Department, with fewer negative headlines like those that dogged his predecessor. He has been helped by moves completed on his watch that were put in the works by the department's career lawyers. Repeating an analogy he has used in the past to show humility and appreciation for his staff, Mr. Mukasey said: "When I was a little kid, I used to sit on my father's shoulders and go 'look how tall I am.' I feel the same way here, I get to be very tall because I am sitting on a lot of shoulders."
Rhode Island Sen. Whitehouse, whose question on waterboarding caused Mr. Mukasey so much trouble, cheers the attorney general for issuing new rules for how Justice officials can interact with the White House.
"The preliminary steps he has taken are good ones," the senator said in an interview. "Reinstating the firewall between DOJ and the White House was a very important structural repair and a very important symbol."
Mr. Mukasey is likely to accommodate in other areas, too. After he retired as a judge and returned to private practice in New York, he wrote an opinion piece in The Wall Street Journal in which he raised questions about the judicial system's capability of dealing with terror cases. He asked whether a new system to deal with terror cases might be a better way to go. Now, Mr. Mukasey minimizes those arguments and said he plans to "work with what we've got."
Write to Evan Perez at evan.perez@wsj.com
Big Test Awaits Attorney General When He Testifies Before Senate Panel
By EVAN PEREZJanuary 23, 2008; Page A4
WASHINGTON -- Arriving at the Federal Bureau of Investigation's holiday party last month, Attorney General Michael Mukasey went directly to the registration table for surnames starting with M. Staff members gently advised him there was no need to register. He is the boss at the FBI, too.
• The News: Attorney General Mukasey's displays of independence may frustrate Congress and the White House.
• The Setting: He has set out to restore morale and reputation at the Justice Department.
• What's Next: Mukasey next week returns to the Senate to face the question that n
early ended his confirmation: Is waterboarding torture?Mr. Mukasey was picked as the country's 81st attorney general to restore morale and independence to a department tarnished by the tumultuous tenure of his predecessor, Alberto Gonzales. In his first two months, Mr. Mukasey has behaved like a Washington outsider, allowing him to stick a finger in the eye of the Washington establishment.
Last month, he shot down demands from senators for an independent investigation into the destruction of detainee-interrogation videotapes by the Central Intelligence Agency. He instead ordered a criminal inquiry led by a tough Connecticut prosecutor who will remain inside Mr. Mukasey's chain of command and will lead a team largely drawn from Justice's headquarters.
Mr. Mukasey's aides are enforcing his orders to restrict contact with the White House.
Administration officials had worked closely with the department under Mr. Gonzales, including directing details of the attorney general's speeches. Mr. Gonzales, a close friend and former lawyer to President Bush, resigned under pressure in August amid accusations he allowed political operatives at the White House to taint Justice affairs.
"On the one hand, I'm nominated by the president," Mr. Mukasey said in an interview aboard a jet en route to Mexico City last week. "On the other hand, the oath is to protect and defend the Constitution. And so that's my job on a day-to-day basis."
MORE
Read excerpts from Mr. Mukasey's interview with the Journal.
As for standing up to the White House and Congress, he said: "I don't feel obligated to show my independence, or go swaggering about to display it."
Mr. Mukasey's portfolio includes some of the White House's most controversial policies, including the legal underpinnings of wiretapping, interrogation methods and gun laws. As a result, it is an open question how far he can carry his independent streak, given the sensitivity of these matters. The attorney general is courting lawmakers and has already softened in some areas, such as backing off supporting a new system to try terrorist detainees.
Marc Mukasey, who heads the white-collar-defense practice at Bracewell & Giuliani LLP in New York, said his father is most comfortable being "a regular guy." He recalled seeking advice before starting work as a prosecutor in the U.S. attorney's office in New York's southern district, where his father worked decades before.
"He said, 'Can you get a pen and paper?'" Marc Mukasey recalled. "I said, 'Sure.' He said, 'Here's the words of wisdom: Don't screw up.'"
The 66-year-old Bronx native, previously chief judge of the U.S. District Court in New York's Southern District, remains a nonresident in Washington. His wife lives in New York, near their grandsons, while he commutes weekly.
Mr. Mukasey is conservative not only in his politics but in words and manner. As a judge, he assigned new law clerks George Orwell's 1946 essay "Politics and the English Language," a denunciation of the "slovenliness" of contemporary written English, which the author said caused vagueness and dishonesty in political discourse.
Since arriving in Washington, he has expressed puzzlement at the alphabet soup of acronyms and jargon, notably phrases as "run the traps" or "outside my lane." Recently, one friend "was ragging me mercilessly," he recalled, after noting that Mr. Mukasey slipped into Washingtonese during his confirmation hearings. (He said he couldn't answer a question because he hadn't yet been "read in" to, or briefed on, a classified program.)
A big test will come next week when he goes before the Senate Judiciary Committee, which narrowly approved his confirmation in November. Democrats and Republicans alike said at the time they expected more complete answers after he was briefed on the Bush administration's antiterror strategies.
During confirmation hearings, Mr. Mukasey gave some vague responses to the question of whether an interrogation technique known as waterboarding constitutes torture. "If waterboarding is torture, torture is not constitutional," he said. Told by Rhode Island Sen. Sheldon Whitehouse that his answer was "semantics," Mr. Mukasey responded, "Sorry."
Asked last week whether he was prepared to answer senators' questions on waterboarding, Mr. Mukasey responded: "When? At this point in time?"
Mr. Mukasey said his response was an example of what the late New York sports columnist, Murray Kempton, would have described as "constabulary style" or one that "aims at precision but never achieves clarity."
Reminded that he hadn't answered the question, Mr. Mukasey said: "Yes, I've been read into the program, but that's part of a process. I said I would look at the program. Look at the letters. And give my answers. I haven't yet figured out precisely when and precisely how. I understand that the time is coming."
The arrival of Mr. Mukasey has paid dividends for the Justice Department, with fewer negative headlines like those that dogged his predecessor. He has been helped by moves completed on his watch that were put in the works by the department's career lawyers. Repeating an analogy he has used in the past to show humility and appreciation for his staff, Mr. Mukasey said: "When I was a little kid, I used to sit on my father's shoulders and go 'look how tall I am.' I feel the same way here, I get to be very tall because I am sitting on a lot of shoulders."
Rhode Island Sen. Whitehouse, whose question on waterboarding caused Mr. Mukasey so much trouble, cheers the attorney general for issuing new rules for how Justice officials can interact with the White House.
"The preliminary steps he has taken are good ones," the senator said in an interview. "Reinstating the firewall between DOJ and the White House was a very important structural repair and a very important symbol."
Mr. Mukasey is likely to accommodate in other areas, too. After he retired as a judge and returned to private practice in New York, he wrote an opinion piece in The Wall Street Journal in which he raised questions about the judicial system's capability of dealing with terror cases. He asked whether a new system to deal with terror cases might be a better way to go. Now, Mr. Mukasey minimizes those arguments and said he plans to "work with what we've got."
Write to Evan Perez at evan.perez@wsj.com
WSJ: Tribunal Supremo limita responsabilidad secundaria por fraude
Justices Rebuff Enron Holders
By JESS BRAVIN and MARK H. ANDERSONJanuary 23, 2008; Page A2
WASHINGTON -- The Supreme Court turned away an appeal from Enron shareholders seeking to recover losses from Wall Street banks, underscoring the sweep of last week's decision limiting the liability of companies that help other corporations commit fraud.
The decision effectively ends the $40 billion Enron class-action lawsuit filed by several institutional investors, including public and private pension funds. Last week, in a case known as Stoneridge, the court ruled that federal law precluded private shareholder lawsuits against companies that helped a cable-television company falsely inflate its profits. The court said in a 5-3 opinion that the Securities and Exchange Commission has exclusive authority to go after such third parties, unless they issued public statements on which investors relied.
MORE
• Court Is Asked to Clarify Stoneridge 01/18/08
• High Court Appears Willing to Limit Licensing Fees for Patent Owners 01/17/08
• Top Court Limits Shareholder Fraud Suits 01/16/08
The Enron plaintiffs argued that their case should proceed at the Supreme Court because the defendants "are financial professionals who structured financial transactions that deceived the market." The defendants, including Merrill Lynch & Co., Credit Suisse Group, Barclays PLC and Pershing LLC, argued that the legal question in their case was identical to Stoneridge.
The Supreme Court sided with the defendants by rejecting the plaintiffs' appeal yesterday.
"The Supreme Court all along has defined securities fraud as being the public statements that the firm made to its shareholders," said Jennifer Arlen, who teaches corporate law at New York University School of Law. Yesterday's action stresses that "private plaintiffs can only go against people who participated directly in making those statements," not those "who lay the groundwork for being able to make those statements," she said.
A spokesman for the lead plaintiff, the University of California, said the Enron investors haven't given up hope of finding a legal strategy to fight the defendants. Trey Davis, the university's director of special projects, said the university will present its alternative approach soon to a federal district court.
Investors lost billions of dollars when Enron collapsed in late 2001 amid accounting fraud. The University of California and other plaintiffs had filed a class-action lawsuit targeting the financial firms. Last year, a federal appeals court in New Orleans rejected class-action status for the lawsuit, saying the plaintiffs hadn't established that they relied on actions by the investment banks. The high court's action means that ruling will stand.
(Regents of the University of California v. Merrill Lynch Pierce Fenner & Smith Inc.)
Separately, the justices sent another case that turns on the Stoneridge ruling back to lower courts.
The California State Teachers' Retirement System sued Cendant Corp., now known as Avis Budget Group Inc., and Time Warner Inc. for allegedly participating in a scheme where Homestore.com inflated its revenue. A federal appeals court let the class-action suit over the $190 million in accounting errors go forward, but the Supreme Court ordered that the case be reviewed in light of the Stoneridge precedent.
In June 2006, Homestore's former chief executive, Stuart Wolff, was found guilty in Los Angeles of charges related to a scheme to inflate advertising revenue. Homestore is now known as Move Inc.
(Avis Budget Group and Time Warner v. California State Teachers' Retirement System)
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