Appealing a Sua Sponte Order

    One of the practical problems which trial counsel confront is a sua sponte order which has an adverse effect on a party. 
    The situation can arise, for example, at a pretrial calendar conference when a judge sanctions a party for failure to comply with discovery deadlines established by court order or by stipulation of the parties. The sanction may consist of the imposition of attorneys' costs on the offending side, or even, in an extreme situation, the dismissal of a claim.
    It is well-established under New York law that there is no right to appeal a sua sponte order. The rule follows from CPLR § 5701(a)(2) which indicates that a party has a right to appeal from an order "where the motion it decided was made upon notice." Because a sua sponte order is not the result of a motion made on notice, the courts conclude that there is no right to appeal the order. 
    The solution for the aggrieved party? Make a motion on notice to vacate the sua sponte order, and if the motion is denied, appeal the order denying the motion to vacate. See, Sholes v. Meagher, 100 N.Y.2d 333 (2003); CPLR § 5701(a)(3).
    Happy Thanksgiving.       

An Outstanding CLE Program

    Now that Continuing Legal Education is ensconced as a cottage industry, lawyers are deluged with brochures and e-mails assuring us that if we do not immediately enroll in a particular CLE course we surely will be consigned to the dustbin of legal history. 
    Amidst the deluge it is always refreshing to find a CLE program which is not only informative and useful, but actually enjoyable. I attended one last week and I strongly recommend it when it comes around next year.
    For four days I attended an appellate practice program in Washington, D.C., sponsored by the American Bar Association's Council of Appellate Lawyers (I sit on its executive committee), the Appellate Judges Education Institute, and SMU Dedman School of Law. Hundreds of lawyers and appellate judges from across the country attended. Judge Eugene F. Pigott of the New York Court of Appeals was a member of a panel on how appellate judges approach decision making. 
    The program began on Thursday afternoon with two lawyers interviewing Justice Sonia Sotomayor for one hour, and it concluded on Sunday morning with a talk by Harvard Law School Professor Jack Goldsmith on the impact of war (including 9/11) on constitutional law. In between there were talks on developments and trends in civil and criminal law, a luncheon talk by Scott Turow on law and literature, panels on various aspects of appellate practice, and predictions by the attorneys involved in the challenges to the health care law regarding whether and when the Supreme Court would agree to hear the case (the predictions were accurate).
    A fascinating topic was the impact of technology on appellate practice. I learned, for example, that iPads have been distributed to all the judges of the United States Court of Appeals for the Ninth Circuit and the judges use them rather than carry around briefs and records on appeal. Does the fact that judges are reading from a screen affect how attorneys should write and structure their briefs? Should footnotes be avoided?
    Next year this appellate "summit" will be held in New Orleans. It will be one of the very best CLE programs you can attend.  

GPS Surveillance: Will the Supreme Court Go New York's Way?

    Back on May 12, 2009, I reported here that the New York Court of Appeals had that day ruled that the police cannot attach a global positioning system (GPS) tracking device to a person's automobile without a search warrant. People v. Weaver, 12 N.Y.3d 433 (2009). I noted that the opinion by Chief Judge Jonathan Lippman was a resounding invocation of  "the right to be let alone" enunciated by Justice Louis Brandeis in his prescient dissent in Olmstead v. United States, 277 U.S. 438 (1928).
    I also noted that because Weaver was based on provisions of the New York State Constitution the decision was beyond review by the United States Supreme Court.
    Next Tuesday, however, the Supreme Court will have the opportunity to address the issue when it hears oral argument in United States v. Jones, a Government appeal from a ruling by the United States Court of Appeals for the D.C. Circuit that a warrant was required to install the GPS tracking device which monitored Jones' movements in his car for approximately four weeks. Decisions in at least four other federal circuit courts have upheld the warrantless installation of a GPS tracking device.     

Next Week in the Supreme Court: Criminal Justice

    The United States Supreme Court will hold three days of oral argument next week and hear six cases, all touching on issues central to the criminal justice system.
    Two cases will deal with the constitutional right to the effective assistance of counsel during plea bargaining (Lafler v. Cooper and Missouri v. Frye); one will deal with a matter of growing concern--the due process protections against unreliable eyewitness identification testimony (Perry v. New Hampshire); another will address the deadline imposed on state inmates for filing federal habeas corpus petitions (Gonzalez v. Thaler); a fifth case will address governmental immunity when a governmental official testifies falsely before a grand jury which then issues an indictment (Rehberg v. Paulk); and the sixth will consider suits against individuals who work for companies which have contracted with the government to provide prison services (Minneci v. Pollard).   

Summer Travel and the Law: Looking Back

    Now that the chill of fall is here, and the appellate courts are back in session, it is time to take a pause from drafting briefs and preparing for oral argument, to look back to the days of summer.  
    Summer is, of course, a good time to travel, and when I do I try to catch the local sites of legal interest. Jacqueline and I have always enjoyed Virginia, so we decided to see parts of the state we had not explored: the Shenandoah Valley, the Blue Ridge Mountains, and other places in the far west of the state. One of the things we quickly learned is that the Civil War is ever present wherever we went.
    The first stop on the drive from New York was the town of Frederick in western Maryland, the scene of much Civil War conflict. Sitting on a quiet street is the Roger Brooke Taney House, home of the fifth Chief Justice of the United States Supreme Court and the author of the Dred Scott decision. Traveling south from Frederick one passes through Harpers Ferry, West Virginia, the scene of John Brown's famous 1859 raid on the federal armory designed to incite a slave insurrection.
   Our first stop in Virginia was Winchester, a town which reportedly changed hands 72 times during the Civil War, including 13 times in one day! In the center of town there is a statue of a Confederate soldier, and behind the statue sits an impressive courthouse which served as a hospital during the Civil War.
    The layout of the courtroom was particularly striking: the jury would sit directly below the judge's bench facing the courtroom, and the witness would sit directly in the front of the jury facing the jurors. This face-to-face arrangement is, of course, very different from the modern courtroom in which the witness sits to the side of the judge's bench and the jurors sit perpendicular to the witness. Jurors must weigh credibility, and I wondered as I viewed the Winchester courtroom whether the face-to-face arrangement is actually better suited to this purpose than the modern configuration.
    On the second floor of the courthouse is a museum which displays not only the weaponry of the Civil War, but recounts the terrible suffering of the troops. We tend to forget that over 600,000 soldiers died during the war, many because battlefield medicine was simply inadequate to the task.
    From Winchester we traveled south, stopping at the New Market battlefield: the stillness was haunting as we looked over a plain grass field which was the scene of an 1864 Confederate victory. From there we visited the Virginia Quilt Museum in Harrisonburg, and then on to the Woodrow Wilson Presidential Library and Museum in Staunton. I had frequently read that Wilson was a racist, but only in Staunton did I realize that he was a southerner.
    Next was Hot Springs, high in the Alleghany Mountains. Not only did we stay in a wonderful inn, but we bathed in the Jefferson Springs which have been bubbling up at 98 degrees for hundreds of years. It is said that Thomas Jefferson bathed here, but there seems to be some difference of opinion whether he found it beneficial. We loved it.
    A detour took us into White Sulphur Springs, West Virginia--site of a secret underground bunker built in the 1950s to house members of Congress in the event of a nuclear attack--and from there we went back to Lexington, Virginia, home of Virginia Military Institute, Washington and Lee University, and the George C. Marshall Museum and Library. I had always thought that Marshall--Army chief of staff during World War II and later Secretary of State--was a West Point graduate, but he actually attended VMI. VMI, of course, was the school at the center of the Supreme's Court's ruling in U.S. v. Virginia, 518 U.S. 515 (1996), holding its males-only admissions policy a violation of equal protection of the law.
    We left the Shenandoah Valley, and traveled east through Lynchburg to Appomattox Court House, the town in which Lee surrendered to Grant in the parlor of the Wilmer McLean home. The town is now a National Historical Park and contains a number of restored buildings, including two law offices. Outside the town is a small cemetery with the remains of 13 unknown Confederate soldiers and one unknown Union soldier. Very moving. 
    We traveled further north to Montpelier Station, the site of James Madison's estate, Montpelier. The 2,700 acres are magnificent, and the tour of the main house particularly meaningful for any student of the Constitution. I was so inspired that I purchased and have read James Madison and the Struggle for the Bill of Rights by Richard Labunski (Oxford Univ. Press).
    From Montpelier we headed west to the Blue Ridge Mountains and turned north for the 100 mile Skyline Drive--a stunning ride with beautiful, unobstructed mountain vistas. A calm, leisurely conclusion to a wonderful summer journey.            

Defamation and the Internet

    With the exponential growth of websites and blogs society has been forced to address defamatory abuses on the internet: sometimes wild and unsubstantiated statements about individuals which would be the basis for tort liability if published in a newspaper or a book.
    Ordinarily, the publisher of defamatory material authored by a third person is subject to tort liability. But in 1996, in the Communications Decency Act (CDA), 47 U.S.C. § 230, Congress created an exception to this general rule for internet publication. In substance, if one is a "provider or user of an interactive computer service" he is not liable in tort for publishing material authored by third parties.
    Today in Shiamili v. The Real Estate Group of New York, Inc., a divided New York Court of Appeals took its first look at the CDA and ruled that Section 230 immunity applies to those who run a blog dedicated to the New York City real estate industry. The allegedly defamatory comments were written by readers of the blog, not the administrator of the blog. In the view of the majority of the Court, simply publishing the comments could not create tort liability in light of Section 230.  A dissenting opinion by Chief Judge Lippman maintained that the defendants had gone further than merely publishing the material: they abused their power as website publishers to "promote and amplify defamation targeted at a business competitor." The dissent is noteworthy because Chief Judge Lippman is seen as a strong advocate of First Amendment free speech.
    The majority opinion in Shiamili contains an excellent survey of cases from across the country interpreting Section 230. The decision can be found here.   

Lincoln, Slavery, and the Law

    I was about a quarter of the way through The Fiery Trial when the announcement came that the book was awarded this year's Pulitzer Prize in history. 
    Written by Eric Foner, the DeWitt Clinton Professor of History at Columbia, the book recounts in fascinating detail the evolution of Abraham Lincoln's thinking about slavery and the action government could legitimately take to address the issue. Most striking for me was the role that constitutional law played in Lincoln's thinking over three decades. 
    Lincoln was morally repelled by slavery but he thought that the law imposed serious constraints on what could be done about the "peculiar institution." The Constitution drafted in 1787 plainly recognized slavery without actually using that word: the three-fifth compromise allowed a state to count 60% of its slaves towards the state's total population for determining its representation in the House of Representatives (and its Electoral College vote), and the fugitive slave clause permitted slave owners to legally secure the return of runaway slaves. 
    Because the Constitution recognized a property right in slaves, Lincoln could not adopt the abolitionist view. Instead, he, like many others, opposed the expansion of slavery and had to deal with such knotty legal questions as whether a slave secured his freedom if the slave owner traveled with the slave into a state which had abolished slavery. 
    The Civil War and the Emancipation Proclamation brought Lincoln's legal dilemma to the fore: as President he was decreeing the manumission of slaves without providing for compensation to the owners--a policy he considered a necessity of war. Until his death Lincoln was concerned that the Supreme Court would declare the Proclamation unconstitutional. According to Professor Foner he named Secretary of Treasury Salmon P. Chase the Chief Justice of the Supreme Court "to guarantee that the Court did not challenge the constitutionality of the Emancipation Proclamation." The legal question was put to rest, however, when the Thirteenth Amendment abolishing slavery (without compensation to slave owners) was finally ratified several months after Lincoln's assassination. 
    This is history at its best: deeply informed, scholarly but readily accessible, and very well written. Take it to the beach this summer.        

Appellate Tips From Supreme Court Justices

    There is a cottage industry in America--continuing legal education courses, tapes, lectures, and books--which promises to teach both the experienced and novice appellate lawyer how to write a persuasive brief and how to make a winning oral argument. Some of these materials are specific to a particular court, while others offer generic advice which is applicable regardless of the jurisdiction in which the appeal will be heard.
    Some of the best material comes from appellate judges, although few can improve on Justice Robert H. Jackson's 1951 speech "Advocacy Before the United States Supreme Court," which can be found here. 
    Scribes, The American Society of Legal Writers, has just published in its journal interviews with eight United States Supreme Court Justices about appellate advocacy . The interviews are conducted by Bryan A. Garner, co-author with Justice Scalia of Making Your Case: The Art of Persuading Judges. 
    I have just started to make my way through the interviews--which run over 180 pages--and I will share the nuggets in future blog entries. You can access all the interviews here. A New York Times article on the interviews can also be found here.


Today's Decisions:  the United States Supreme Court issued four decisions today. In Chamber of Commerce of the United States of America v. Whiting the Court ruled 5-3 that the federal Immigration and Reform Control Act did not preempt Arizona's Legal Arizona Workers Act, a decision certain to add fuel to the controversy over whether states can enforce their own laws directed at immigrants. 
    U.S. v. Tinklenberg addresses the application of the federal Speedy Trial Act; Camreta v. Greene addresses when a party which has prevailed in a United States Court of Appeals can still seek review in the United States Supreme Court because it is displeased with one aspect of the Court of Appeals ruling; and Fowler v. United States provides an interpretation of the federal witness tampering statute, 18 U.S.C. § 1512(a)(1)(C).    

Strauss-Kahn and Bail: Getting It Right

    On Tuesday I wrote that I was surprised that Dominique Strauss-Kahn was not released at his arraignment in the New York City Criminal Court "on a high bail with serious restrictions on his movements." I also said that "other judges will look at the matter."

    Yesterday another judge did look at the matter: Strauss-Kahn's lawyers made a motion for bail review in the Supreme Court, New York County, and the judge there got it right. He ordered Strauss-Kahn's release on high bail with serious restrictions on his movements.

    Bail is, after all, designed to assure the defendant's future appearance in court. The decision of the first judge to remand Strauss-Kahn without bail was a judicial determination that no conditions could be set to assure his future appearance in court. This is implausible, as the release on bail in the past of high profile defendants has shown. One of the conditions set for Strauss-Kahn's release is virtual house arrest with security paid for by him to keep him put. The press is reporting that it will be the same security firm which watched over Bernie Madoff when he was released on bail by a federal judge.

    It was also reported in court yesterday that the grand jury voted to indict Strauss-Kahn on various sexual assault charges, although it appears that the indictment has not yet been formally filed. In New York the grand jury consists of 16 to 23 members, and a vote of at least 12 is needed for an indictment. 

    The fundamental criticism of grand jury proceedings is that they are secret, and there is no judge or representative of the accused present. New York has sought to address the criticism by requiring a judge, upon request of the defendant, to make an in camera inspection of the grand jury minutes to determine whether there was sufficient evidence before the grand jurors to indict the defendant. See, CPL § 210.30. The required judicial inspection of the minutes will generally result in a judicial ruling of sufficient evidence to indict. But it is not a pro forma proceeding: indictments have been dismissed.

   As I noted on Tuesday, in light of the Strauss-Kahn "perp walk" and the denial of bail, there has been widespread overseas criticism of the criminal justice system in New York. The order granting bail should blunt some of this criticism.           

Strauss-Kahn, the "Perp Walk," and Bail

    The arrest of Dominique Strauss-Kahn, managing director of the International Monetary Fund, on charges that he sexually assaulted a chambermaid in his hotel room on West 44th Street in Manhattan, will throw an international spotlight on the criminal justice system in New York.
    Strauss-Kahn is a player on the world stage. As head of the I.M.F. he has been at the forefront of the financial bailouts for Greece, Portugal, and Ireland. He was widely expected to step down from his I.M.F. post this summer to seek the Socialist party nomination for the president of France in elections to be held in 2012. He is so well known that newspaper headlines in the foreign press simply refer to him as DSK. The case is a magnet for press attention: a world figure, salacious details, and claims that political intrigue is behind events leading to the arrest. 
    In the circumstances, the American legal system, and the New York City system in particular, will be put under an intense international microscope. Some recent high profile cases in New York which have garnered international attention have involved financial scandals whose courtroom presentations were affected by a maze of sometimes abstruse market and banking data. The Strauss-Kahn case, however, has a simple story line--what allegedly occurred in a hotel room--which everyone can follow and about which everyone will have an opinion.
    I was interviewed for background on the American legal system by France 24, an internet and television enterprise based on the CNN model. Two matters immediately were raised: the police escorting a handcuffed Strauss-Kahn before the waiting press photographers--the "Perp Walk"-- and the bail system. From the European perspective the Walk seemed intentionally designed to humiliate the accused and to plant "Guilty" in the minds of members of the public who may end up on the jury months later. The view was expressed that Strauss-Kahn had been singled out for this treatment but I assured the interviewer, as any reader of the tabloid press knows, that this sort of display of the accused in high profile cases is common.
    There has been litigation over perp walks. In Lauro v. Childs, 219 F.3d 202 (2nd Cir. 2000), the United States Court of Appeals for the Second Circuit ruled that a "staged perp walk"--one in which the accused is displayed solely for the benefit of the press and which serves no legitimate law enforcement purpose--violates an individual's Fourth Amendment right to be free of unlawful seizures. But in Caldarola v. County of Westchester, 343 F.Fd 570 (2nd Cir. 2003), the court held that the perp walk of a former corrections officer--a videotape of the walk was distributed to the press--served the legitimate governmental purposes of informing the public of efforts to root out wrongdoing by public employees, enhancing the transparency of the criminal justice system, and deterring others from wrongdoing.
    There is also foreign disbelief that at his arraignment Strauss-Kahn was denied release on bail. I, too, was surprised that he was not released on a high bail with serious restrictions on his movements--surrender of his passport, electronic monitoring, and so forth. But bail conditions do change as cases progress through the system: other judges will look at the matter, and appellate review of bail is available.
    So far, therefore, in two ways the New York criminal justice system has come up short in foreign eyes : the perp walk and the flat denial of bail. This sort of close scrutiny by those not familiar with the system nor beholden to it will continue, as it should in a free society.      

The Race to the Supreme Court

    Ever since the passage of the Affordable Care Act in 2010 there has been a common understanding that the United States Supreme Court will have to determine the constitutionality of the law.
    Litigants have not disappointed us. According to the Department of Justice, 31 lawsuits have been filed across the country challenging a law which President Obama made the centerpiece of his first years in the White House. These cases are starting to reach the United States Courts of Appeals, and from there it is only a certiorari petition away from the Supreme Court which has not been in a hurry to hear them: the Court denied a request from the Attorney General of Virginia that the Court invoke a rarely used procedure to allow Virginia to skip over the United States Court of Appeals and go directly from a United States District Court to the Supreme Court.
    So this morning Virginia and another party challenging the law found themselves instead in the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. The court was long seen as the most conservative federal circuit court, but appointments by President Obama have made it more evenly divided ideologically. 
    The central issue in most of the challenges to the statute is the claim that Congress does not have the authority under either the Commerce Clause or its taxing power to require that people obtain health care insurance. In the cases argued this morning one District Judge ruled that the insurance provision is constitutional, while another District Judge ruled that it is not. In June, the United States Courts of Appeals for the Sixth and Eleventh Circuits will also hear oral arguments in cases challenging the statute. 
    The two cases argued this morning are Liberty University, Inc. v. Geithner and Commonwealth of Virginia v. Sebelius. A New York Times article on the cases working their way up to the Supreme Court can be found here. 

Law in the Movies: The Lincoln Assassination Trial

    If you think you have tough cases consider this: A long and bloody civil war is over; the leader of the winning side is assassinated; those alleged to be involved in the assassination plot are sympathetic to the losing side; the tribunal impanelled to try the alleged conspirators consists of army officers grieving the loss of their commander-in-chief; and the defense counsel is a former member of the army on the winning side of the civil war
    The trial, of course, is of those charged in the plot to assassinate President Abraham Lincoln after General Robert E. Lee surrendered to General Ulysses S. Grant at Appomattox Court House in Virginia.
    The lawyer was Frederick Aiken who represented Mary Surratt, one of the alleged conspirators, and the center of Robert Redford's movie The Conspirator.
    Surratt owned the Washington boarding house where the conspirators met, and the movie argues for her tenuous connection to the conspiracy. The film apparently hews to the trial record. 
Inevitably, however, a film script will eliminate many details. I thought the movie a bit flat dramatically, although it can be argued that the film's strength is that it lets the record speak for itself. 
   The film implicitly raises contemporary issues which arise in the wake of September 11, and I suspect that was the director's intent. How does a public trauma such as the assassination of a president or a violent attack on the United States affect the legal system's ability to render fair and impartial judgments? Should these matters be tried by military commissions or civilian juries? A postscript to the film reports that Mary Surratt's son was tried by a civilian jury, the jury was hung, and he was released--a very different fate from that meted out to his mother Mary.
    Historians have rightly focused on the political effects of Lincoln's assassination while the legal aftermath receives little attention. For a large audience The Conspirator will lift the trial from the obscurity it does not deserve.  It is a worthwhile and informative trip to the local movie house for lawyer and nonlawyer alike.   

Access to the New York Court of Appeals

Access to the New York Court of Appeals, the state's highest court, is limited. In criminal cases, except for a person sentenced to death, no party--neither defendant nor prosecutor--has a right to appeal to the Court. Instead, permission to appeal must be granted by a Justice of the Appellate Division, or a Judge of the Court of Appeals.
In civil cases, there is a somewhat greater right to appeal, most commonly when there are two dissents on the law in the Appellate Division. See, CPLR § 5601. Otherwise, civil litigants must secure permission to appeal from either the Appellate Division or the Court of Appeals itself, an endeavor informed by often abstruse but very important notions of "finality" and "appealability."  See, CLPR § 5602.
    But whether it is a criminal case or a civil case the rule of thumb is the same: it is difficult to get a case into the Court of Appeals.    
    The Clerk of the Court of Appeals has just issued his annual report for 2010, and the report confirms the rule of thumb. In civil cases there were 1,045 motions seeking leave to appeal and the Court granted only 6% of the requests. This was down from the 7.2% grant rate in 2009.
    In criminal cases there were 2,220  applications for permission to appeal, and the Court granted only 108--or 4.9%. This is a considerable increase from the 2009 grant rate of 3.4%, and the 2% grant rate in 2008. Since his appointment in 2009, Chief Judge Jonathan Lippman has publicly spoken of the need for the Court to hear more criminal cases. See, Full Court Pass, May 5, 2009. The increased number of grants in criminal cases seemingly reflects his success in convincing other members of the Court of the importance of hearing criminal appeals.
    The message of the Report is clear: if a party does not prevail in the Appellate Division, there is simply a very limited opportunity to change the outcome by securing further review in the Court of Appeals. The full Report can be found by going to the Court of Appeals website here.     

Supreme Court Hears Final Oral Argument

    The United States Supreme Court heard its final oral argument of the current Term yesterday. The case, Nevada Commission on Ethics v. Carrigan, raises the question whether public officials have any First Amendment protection for the votes they cast.    
    Through today the Court has issued 39 opinions this Term. As is often the case,  many of the major cases of the Term will be decided in May and June.


Note: Because of other commitments, including a series of deadlines for appellate briefs, I had to put Full Court Pass on the back burner for two months. I thank readers for their inquiries and concerns. I also was just informed that I have been selected a "Super Lawyer" for appeals in 2011, an accolade my peers have accorded me since 2006. I appreciate the honor.     

Miranda Comes to France

Since the 1966 decision in Miranda v. Arizona, 384 U.S. 436, an individual about to undergo custodial interrogation must first be given the now-famous Miranda warnings advising him that he has a right to remain silent, that anything he says can be used against him, and that he has the right to the presence of counsel during the interrogation.
    When Miranda was decided it caused an enormous controversy, but today it is part of the fabric of American society. In Dickerson v. United States, 530 U.S. 428 (2000), the Supreme Court declined to overrule Miranda, and while a majority of the Court has whittled away at Miranda, its basic precepts--that people undergoing the pressure of a custodial interrogation by the police must be warned of their right to remain silent and their right to counsel--remain intact. 
    It appears that Miranda has crossed the Atlantic to France. Under traditional French garde à vue--custody--an individual undergoing police interrogation had the right to see a lawyer for the first 30 minutes, but then the police could question the suspect without his attorney for 48 to 96 hours. 
    A new law passed by the French parliament changes this: now the individual must be told of his right to remain silent and of the right to the presence of counsel during the interrogation. While the parliament wanted the new law to go into effect in June, a French court ruled that it must go into effect immediately.
    An account of the new law can be found here. 

A Busy January for the Supreme Court

    Since the start of the new year the United States Supreme Court has been busy. Through today, the Court has issued five full rulings in January. 

    In Mayo Foundation for Medical Education and Research v. United States, the Court ruled that the wages paid medical residents are subject to Social Security withholding. The opinion can be found here.

    In Ransom v. FIA Card Services, the Court determined when a debtor in bankruptcy can deduct from his disposable income certain automobile expenses. The opinion can be found here.

    In two habeas corpus cases, Harrington v. Richter and Premo v. Moore, the Court reversed determinations by the United States Court of Appeals for the Ninth Circuit granting the writ in favor of state inmates. The cases address when a federal habeas court can determine that a state court ruling is an unreasonable application of federal constitutional law. Harrington can be found here, and Premo can be found here.

    Finally, in National Aeronautics and Space Administration v. Nelson the Court ruled that even assuming there is a constitutional privacy interest in avoiding disclosure of personal matters ("informational privacy"), NASA did not violate that privacy interest with the detailed background questionnaire required of the employees of private government contractors.