The Supreme Court issued one opinion this morning.  The case is Heimeshoff v. Hartford Life & Accident Ins. Co. (12-279).  Heimeshoff worked for Wal-Mart filed a claim with Hartford for long term disability.  Hartford was the plan administrator for Wal-Mart with the plan covered by the Employee Retirement Income Security Act of 1974 (ERISA).  The statute allows for judicial review of any denial of benefits.  The terms of the plan, however, limits the filing of any suits to within three years after “proof of loss” is due.

Courts have generally required litigants to exhaust their administrative remedies before a suit can be filed.  In Heimeshoff’s case, the administrative process concluded more than three years after proof of loss was due.  The District Court dismissed the suit because it was filed outside of the three year contractual limitation.  The Second Circuit affirmed.

The question before the Supreme Court was whether the contractual limitations provision is enforceable.  The Court held that it is, affirming the Second Circuit.  The Court’s precedent allows the enforcement of contractual limitations if the limitations period is of reasonable length and there is no controlling statute to the contrary.  ERISA, the Court notes, allows suit to enforce rights under the plan, meaning that the plan terms were controlling and not in conflict with the statute.

The Court rejected the argument that participants in the administrative review process would short-change participating in the review as any later suit for denial of benefits would be limited to the administrative record.  It would not be in a claimant’s interest to do so as undeveloped evidence would not be available in a District Court proceeding.

It would not be in a plan administrator’s interest to deliberately slow down the process to avoid judicial review as the administrator’s conduct could be subject waiver or estoppel in invoking the limitations period as a defense.  Tolling the contractual limitations period during the internal review period is not an option as it would rewrite the contract.  ERISA, in any event, does not require this.  Justice Thomas delivered the opinion for a unanimous Court.


Perhaps but only if the principle of respect for all persons is actually accepted as being legitimate in civil society instead of merely being politically correct public chatter. Therein lies the problem. Here’s the abstract for Common Good and Respect for Persons [SSRN] by Wojciech Sadurski (University of Sydney – Faculty of Law):

We need a “working” conception of the common good, i.e. a conception that does not rely on where one stands in various current political controversies about specific aims, purposes and measures of achieving them, including controversies reflected in debates about and within constitutional law. Such a “working conception” can be supplied by the idea of public reason as a characteristically liberal device of legitimacy in a pluralistic society: attempts to equate “common good” with a set of common actual first-order interests must fail. Public reason is justified by a principle of respect for persons who may or may not agree with the specific laws but who will likely feel they are “second class” citizens, thus deeply disrespected, if the law is based on grounds which are not endorsable by them. Hence, this paper explores a triangle of concepts: common good, public reason (as a working conception of common good), and respect for persons (as a justificatory argument for public reason). In the first part of this paper I discuss the concept of common good, and its relationship with public reason, and in the second part I discuss respect for persons as a justification for public reason. It is argued, in particular, that respect (as a justificatory value of public reason) should be seen as part of a constellation of values, of which freedom (understood through a presumptive evil of coercion) and political equality (understood in an outcome-based, agency-related sense), are of particular importance.

While not achieving “Download of the Week” status by Larry Solum, hat tip to Legal Theory Blog: “All the theory that fits!”. — Joe

“A previously moribund proposal to require 15 hours of clinical work has now come back to life, thanks to advocacy by (guess who?) clinical faculty,” wrote Brian Leiter. “Students who want to do 15 or 30 hours of clinical work should be able to do it; but why in God’s name would one require it of everyone, without any regard for that student’s ambitions or plans?” For largely negative reaction to the ABA proposal from law school faculty members, see his More Mischief Afoot at the ABA post. See also Scott Fruehwald’s Brian Leiter Misrepresents Proposal by ABA Council on Legal Education and Admissions to the Bar on Legal Skills Prof Blog. — Joe

The Supreme Court issued one opinion this morning.  That case is Kansas v. Cheever (12-609).  It concerns whether the prosecution’s use of court-ordered testimony by an expert to rebut expert testimony by the defense’s expert in a criminal case violates a defendant’s Fifth Amendment rights.  The Court held that it does not.

Cheever and his friends were high on meth when he was warned that officers were on their way to arrest him.  He tried to escape but his car had a flat tire.  He ultimately hid in a bedroom with a .44 revolver.  He heard steps and stepped out of the bedroom and shot and killed Officer Matthew Samuels.  He shot at others as well, though only Officer Samuels was hit.

Cheever was charged with capital murder.  The Kansas Supreme Court held in an unrelated case that the Kansas death penalty scheme was unconstitutional.  Prosecutors dismissed the charges and let federal prosecutors charge Cheever under the Federal Death Penalty Act of 1994.  Cheever indicated that he would defend by introducing expert evidence relating to his ability to form specific intent due to meth intoxication.  The federal court ordered Cheever to submit to a psychiatric exam to assess how the meth how affected him when he shot Samuels.  Michael Welner interviewed Cheever for five hours.

Cheever’s counsel became unable to continue in the early stages of the jury selection.  The federal judge suspended the proceedings and later dismissed them without prejudice.  In the meantime, the Supreme Court reviewed the Kansas death penalty scheme and found it constitutional.  Kansas prosecutors then brought a second prosecution against Cheever.  He presented a voluntary-intoxication defense and argued that his meth use rendered him incapable of premeditation.  He offered supportive testimony from Roswell Lee Evans, a specialist in psychiatric pharmacy and dean of the Auburn University School of Pharmacy.

The State sought to introduce testimony from Michael Welner as rebuttal to Evans’ testimony.  Cheever objected as he had not voluntarily agreed to the interview with Welner.  The judge allowed the testimony in part because Evans relied on Welner’s report.  The jury convicted Cheever at the end of the trial and imposed a death sentence.

The Kansas Supreme Court vacated Cheever’s conviction and sentence.  It held that Cheever’s Fifth Amendment rights had been violated by introducing Welner’s rebuttal testimony.  The Kansas Supreme Court distinguished Supreme Court precedent, Buchanan v. Kentucky, to the contrary.  Buchanan allowed limited introduction of court-ordered examination for the limited purpose of rebutting a mental-status defense.  The Kansas Supreme Court distinguished Buchanan on the grounds that voluntary intoxication was not a “mental disease or defect” under Kansas law.

The Supreme Court reversed.  It reaffirmed Buchanan saying that when a defendant raises the issue of mental state with expert testimony, he cannot block the State’s rebuttal.  It disagreed with the Kansas Supreme Court’s characterization of voluntary intoxication not being a mental disease or defect.  The Court stated that its precedents are not that narrow.  It uses the term “mental-status defense” which includes the use of expert testimony as to a defendant’s mens rea, the capacity to commit the offense or the ability to premeditate.  Once the issue is raised through expert testimony, it can be countered with additional expert testimony.

Justice Sotomayor delivered the opinion for a unanimous Court.


That’s the title of a recent Fastcase Blog post by Joshua Auriemma. Here’s his open salvo:

I often wonder whether the Googleification of legal research isn’t a terrible thing for the profession (at least in this stage of the technology’s development). In law school, I was a master of Boolean searching. I thought about my research question, figured out which words probably appeared closest to other words, and crafted a narrow and specific search.

Somehow, when I became an appellate attorney and had access to WestlawNext through my firm, all of that training went out the window.

If interested, continue reading the post here. — Joe

From the announcement:

Do you have a great lesson plan or assignment that you’d be willing to share?  How about handouts or PowerPoint slides?  If so, then we need your help!

The RIPS Teach-In Kit Committee is currently accepting submissions for the 2014 Teach-In Kit.  The Teach-In Kit is a resource where law librarians can share materials and ideas to help improve legal research instruction.  We hope you’ll consider helping out your colleagues by submitting your materials to this year’s Kit.  We invite you to send contributions as email attachments to Shawn Nevers at

Prior contributions have included course syllabi, lesson plans, research guides, assignments, lecture notes, handouts, examinations, quizzes, PowerPoint slides, tutorials and games.  Examples of past submissions can be found in kits from previous years.

The deadline for contributions is Friday, January 24, 2014. Thanks in advance for your contributions!

— Joe

The Supreme Court issued one opinion this morning and dismissed a second case as improvidently granted.  The case that was dismissed is Unite Here Local 355 v. Mulhall (12-99).  That case concerned an agreement between a union and an employer over organizing and other considerations.  The details are in the dissenting opinion by Justice Breyer, and joined by Justices Sotomayor and Kagan.

The second case is Sprint Communications, Inc. v. Jacobs (12-815).  The issue in the case is whether a federal court should abstain from deciding a regulatory dispute between a state regulatory board and a communications carrier when there are parallel proceedings in state and federal court.  Sprint withheld payments for Voice over Internet Protocol (VoIP) calls to a local Iowa carrier, Windstream Iowa Communications,  after concluding that the Telecommunications Act of 1996 preempted intrastate regulation of VoIP traffic.  Windstream threatened to block Sprint customer calls.  Sprint responded by asking the Iowa Utilities Board (IUB) to enjoin Windstream from blocking calls.  Windtsream backed down and Sprint withdrew its filing.  The IUB continued the action as the issue could come up again.  It held against Sprint, deciding that fees applied.

Sprint filed parallel actions against the IUB in state and federal court.  The federal court invoked the abstention doctrine developed in Younger v. Harris and subsequent cases.  The court found that Iowa had an interest in regulating and enforcing state utility rates.  The Eighth Circuit affirmed.  The Supreme Court reversed.  It concluded that the three types of cases to which Younger applied was not appropriate in this situation.

The exceptions included state criminal proceedings, certain state civil proceedings that are akin to criminal proceedings, and civil proceedings involving orders that are uniquely in furtherance of a state courts’ ability to perform its judicial function.  Rejecting arguments to the contrary, the Court said the facts of this case do not apply to any of the exceptions.  The Court characterized the dispute as ultimately between two private parties who had invoked the state to settle a dispute between them.  The Eighth Circuit’s interpretation of case law would have the potential to extend the Younger doctrine to virtually all parallel civil proceedings.  Justice Ginsburg delivered the opinion for a unanimous Court.


If approved by the ABA Section of Legal Education and Admissions to the Bar, ABAJ’s Mark Hansen reports that the Protocol for Reviewing Law Graduate Employment Data, and Statement of Procedures for Collecting, Maintaining and Reporting Law Graduate Employment Data—DRAFT (dated Nov. 8, 2013) could take effect with the class of 2014, whose employment data must be reported to the ABA by April 7, 2015. In addition to random audits of law school employment data, “[the ABA] section would also conduct annual ‘red flag’ reviews of all schools then under sanction for misreporting employment information, as well as all schools it ‘has reason to believe’ are reporting false or inaccurate information.”

According to the draft proposal approved by the governing council of the ABA section, “while this Protocol and Statement are designed to uncover inaccurate, incomplete or misleading reporting where it exists, a principal goal is to mandate that schools maintain supporting documentation that will substantiate their reported data.” However, Hansen reports

Council member Edward Tucker, a Cleveland CPA, said he thinks the effort is “doomed” because graduates have no obligation to disclose their employment status to the schools they graduated from.

“What we’ve done is construct a dike to hold back the ocean with a great big hole in the middle,” he said of the proposal.

— Joe

With admissions plummeting since the end of the recession, S&P observes that credit quality of stand-alone law schools and law schools associated with smaller regional and non-flagship public universities has been deteriorating. Only component law school credit ratings for national and large public universities remain high. “[T]he strong [are] becoming stronger or remaining stable while the weak are becoming weaker.” For details, see S&P’s As Law School Demand Drops, Credit Quality Among U.S. Schools Diverges (Dec. 5, 2013). See also Brian Leiter’s Law School Reports post. — Joe

Quoting from the December 5, 2013 press release republished in full on No Shelf Required:

Through OverDrive, K-12 school libraries and public libraries will be able to offer 24/7 access to McGraw-Hill Professional digital titles in four broad categories: Business/Consumer, Science/Technical, Test Prep/Education, and Medical.

The eBook collection for schools and public libraries includes more than 700 recently released titles for researchers, business, medical, and technical professionals, and students preparing for ACT, SAT, MCAT or LSAT exams. These titles and more are available now for libraries and schools to lend for virtually any device with a modern browser… .

I think this would not have happened, at least not this soon, if not for ALA robust consumer advocacy campaign. Isn’t it time for AALL to get its act together? — Joe

If anyone thinks that the paper industry is dying a slow death because of electronic information replacing printed information, well, this article in the Los Angeles Times should dispel that notion.  One statistic cited is the $27.8 billion in 2012 sales by International Paper.  That was an increase of $1.8 billion over the previous 12 months.  Paper is still essential for everyday conveniences.

I suppose that we get horrified when the NSA tracks us, but it’s cool when Apple does it, right?  See this story in ABC News.

Old school publishing and open access tussle in this story of the conflict between Elsevier and over posting academic papers.  Thanks to DMCA takedown notices, guess who is winning for now?  The story is in CNET.

The Chronicle of Higher Education is telling us that the average debt at graduation for undergrads is $29,400.  If that’s the average, then Mamas don’t let your babies grow up to be law students.  That’s where tens of thousands of more get piled on.  Someone should sell bumper stickers that read “law school is for trust funders.”  Some 18.5% of Ph.D graduates have $30,001 or more of debt according to another story in the Chronicle.  It was 16% in 2002.

One law school is actually responding to the debt crisis by (gasp!) lowering its tuition.  The University of Iowa is lowering its tuition by 16.4% for both in- and out-of-state students.  That’s a drop of $4,300 and nearly $8,000 less per year respectively for these students.  The drop kicks in starting with the fall 2004 semester.  How can they do it? Volume, volume, volume.  The school can make up the financial difference with just about 20 or so additional students.  Read about it in the Huffington Post.

Joe wrote about the Arizona State University announcement for its new law school home in downtown Phoenix.  There is a picture of the planned Sandra Day O’Connor College of Law at the KTAR web site.   It looks pretty impressive. I wonder how it’s going to be financed.


Don’t know but ASU Law’s plans might point the way toward a new beginning in the public sector of the legal academy if this ambitious project is successful because —

  • The new law school complex will be located in downtown Phoenix (instead of Tempe);
  • It will include a public law library and a civic outreach center; and
  • It will be the home for a non-profit law firm called the ASU Alumni Law Group which will be staffed with up to 30 recent ASU Law grads under the supervision of five experienced attorneys.

If the Arizona Board of Regents approves the plan, construction could begin as early as summer 2014 and the center may be open in fall 2016. For details, including links to press coverage, see this press release. — Joe

On Dewey B Strategic, Jean O’Grady identifies what’s hot and what’s not based on the findings of this year’s AmLaw 200 Law Firm Leadership Survey. My personal favorite is “Succession planning:  Hot (making a succession plan) Not ( executing a succession plan).” Jean reports that “[a]lthough the majority of firms have a succession plan – 90% of firm leaders have been in place for more than 10 years, so succession is not happening.” For more, see AmLaw 200 Law Firm Leaders Survey: What’s Hot and What’s Not. — Joe

It’s free and it will be streamed live today starting at 2:00 pm Eastern. Panel members include Gwen Evans, Executive Director of OhioLINK, Courtney Greene, Head, Discovery & Research Services, Indiana University and Edward Smith, Executive Director, Abilene Library Consortium. Pre-registration for this 60-minute discussion is not required. Details here. — Joe

From yesterday’s ABA press release:

The committee found that Rutgers-Camden violated Standard 503, which requires law schools to use a valid and reliable admissions test, and Interpretation 503-1, which requires law schools that use an admissions test other than the Law School Admission Test to establish the test’s validity and reliability in determining an applicant’s ability to complete the J.D. program.

Rutgers-Camden operated an admissions program, without obtaining a variance from the ABA, that allowed some applicants to use a standardized graduate admissions test score instead of an LSAT score to gain admission to the law school. The school subsequently qualified for a variance but elected to suspend the program.

The accreditation committee imposed a public censure on the law school, which must post the censure document prominently on its website home page for one year. The censure is also posted on the website of the ABA Section of Legal Education and Admissions to the Bar.

The committee also imposed a $25,000 monetary penalty based on the benefit the school received from operating the program.

Hat tip to Mark Hansen’s ABAJ post. — Joe


The Supreme Court’s other opinion from yesterday concerns taxation in the context of partnerships designed to generate large tax losses that offset a partner’s income.  The case is United States v. Woods (12-562).  Gary Woods and his employer, Billy Joe McCombs, bought offsetting currency options from Deutsche Bank.  They paid a premium for the long option and sold back a short option to the Bank which substantially reduced the cost of the long option alone.  Woods and McCombs contributed the spreads to two partnerships along with some $3.2 million in cash that was used to purchase stock and currency.  They ultimately disposed of their interests and claimed losses of $45 million.  They attributed this to calculations that accounted for the long option and ignored the offsetting short option.

The IRS treated the partnerships as shams designed for tax avoidance.  As such, the IRS viewed them as not valid for tax purposes.  The Service sent each partnership a Notice of Final Partnership Administrative Adjustment and assessed a 40% penalty on the tax underpayment.  Woods filed suit in federal District Court which held that the partnerships were properly disregarded as shams.  The Court also held that the penalty did not apply.  This was affirmed by the Fifth Circuit.

The Supreme Court reversed.  The Court agreed that the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA) applied, allowing the IRS to initiate partnership-related tax proceedings at the partnership level.  The Court noted that there were multiple forums and procedures followed, some of which gave inconsistent results, before TEFRA.  The District Court had the power under the Act to determine whether the partnership was a sham (an adjustment under the Act) and whether a penalty relating to the adjustment applied.  The language of TERFA makes it clear that the penalty assessed by the IRS applied in this case.  In that respect, the holdings of the lower courts were reversed.  Justice Scalia delivered the opinion for a unanimous Court.


Congratulations and good luck to this year’s crop of elected officers.

Vice President/President-Elect (July 2014 – July 2015)

  • Keith Ann Stiverson, Director of the Law Library and Senior Lecturer, IIT Chicago-Kent College of Law

Secretary (July 2014 – July 2017)

  • Katherine K. Coolidge, Law Librarian, Bulkley, Richardson and Gelinas, LLP

Executive Board (July 2014 – July 2017)

  • John W. Adkins, Director of Libraries, San Diego Law Library
  • Donna Nixon, Electronic Resources Librarian & Clinical Assistant Professor of Law, University of North Carolina at Chapel Hill

This year’s election generated about as much rank-and-file interest as previous years. AALL reported that only 29.96% of dues paying members voted. — Joe