SCOTUS to Consider Hot-Button Issues in 2019

The U.S. Supreme Court’s 2018-2019 term has had a quiet start with only three decisions issued; all unanimous. However, the court is likely to hear a number of high-profile cases that will be more divisive. Issues before the court may include separation of church and state, citizenship questions related to the 2020 Census, power of executive agencies, Deferred Action for Childhood Arrivals, the military ban against transgender individuals and partisan gerrymandering. The Hill and the Economist have more on the cases and possible outcomes.

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All Civil Cases Involving U.S. Attorneys in West Tennessee Stayed Due to Shutdown

Due to the federal government shutdown, the U.S. District Court for the Western District of Tennessee issued an order today staying "all proceedings in civil cases where the U.S. Attorney is counsel of record" until Congress restores its funding. Watch websites for the Middle District of Tennessee and the Eastern District of Tennessee for updates from those courts.

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6th Circuit Panel Strikes Down Tennessee's Punitive Damage Cap

A 6th U.S. Circuit Court of Appeals panel ruled in a recent decision that a 2011 Tennessee law that caps punitive monetary damages in civil lawsuits is unconstitutional, The Times Free Press reports. The ruling strikes at a provision in the 2011 Tennessee Civil Justice Act, which sharply curtailed monetary damages, including punitive damages. A spokesperson for the Tennessee Attorney General's office said the state is reviewing whether to appeal or not.
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DOJ Says Shutdown Complicating Court Orders, Deadlines

The U.S. Justice Department is asking federal courts nationwide to pause proceedings in cases, saying the government shutdown has restricted the ability of lawyers to perform their duties, including meeting court-ordered deadlines and communicating with attorneys across agencies, reports. “The government hereby moves for a stay of all proceedings in this case until Department of Justice attorneys are permitted to resume their usual civil litigation functions,” Justice Department lawyers wrote in papers filed today in courts across the country. The shutdown prohibits agency lawyers from working, save for limited circumstances that include “emergencies involving the safety of human life or the protection of property,” according to the notices. The federal courts themselves said they have sufficient funding to remain open for at least three weeks.
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Government Shutdown Could Affect Federal Courts, U.S. Attorney’s Offices

If Congress and the Trump Administration can’t come to an agreement on a budget by midnight tonight, the federal government could shut down, closing the U.S. Justice Department and potentially affecting the local legal community, The Tennessean reports. Federal district courts have the funding to remain open for approximately three weeks, after which they could eventually close. The U.S. Attorney’s offices will operate only with “essential” personnel, according to a spokesperson for the office in the Middle District of Tennessee.
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Justice Ginsburg Undergoes Surgery for Early Stage Lung Cancer

U.S. Supreme Court Justice Ruth Bader Ginsburg underwent surgery Friday for early stage lung cancer, NPR reports. Doctors at Memorial Sloan Kettering hospital in New York performed a lobectomy, removing one of the five lobes of the lung. Prospects look good for a full recovery, and Ginsburg hopes to be back on the court for the start of the next argument session in early January.

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Federal Judge Questions Racial Bias by Prosecutors

A federal judge in Memphis is questioning whether prosecutors are issuing more onerous charges against black defendants than white defendants for comparable crimes, The Commercial Appeal reports. U.S. District Judge John T. Fowlkes Jr. has raised concerns of racial discrimination in at least three separate cases — most recently one involving two drug dealers who traveled together when selling MDMA. In that case, the white defendant got out of the car that the men were traveling in to transfer the drugs, while the black defendant remained in the vehicle with another woman. A gun was found in the car between the legs of the black defendant, who was charged with a gun crime mandating an automatic five-year sentence. The white defendant was not charged with a gun crime and received a drastically lighter sentence. Representatives of the prosecutor's office say they do not discriminate based on race and the white man received a lesser sentence because of his limited criminal record. Fowlkes, a former state and federal prosecutor who has also served as a Shelby County public defender, is one of the few black federal judges, which make up only 10 percent of that judiciary.

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Masterpiece Cakeshop Owner Returns to Court

The Colorado cake baker who refused service to a gay couple on religious grounds is back in court, NBC News reports. Jack Phillips, the owner of Masterpiece Cakeshop, is suing the state of Colorado and attempting to halt actions against him after another allegation of discrimination by the Colorado Civil Rights Commission. In this case, Phillips refused to bake a cake for Denver attorney Autumn Scardina’s gender transition celebration. Scardina ordered the cake the same day the U.S. Supreme Court announced it would hear Phillips' appeal of the previous ruling against him. Phillips’ lawyers maintain that the state is treating him with hostility because of his Christian faith and pressing a complaint that they call an "obvious setup." The Supreme Court in June ruled that the Colorado commission showed anti-religious bias when previously sanctioning Phillips for refusing to make a cake, deciding 7-2 that it violated Phillips' First Amendment rights. You can view the initial complaint regarding the current suit here.

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Judiciary Dismisses 83 Complaints Against Justice Kavanaugh

A judicial council has dismissed 83 complaints filed against U.S. Supreme Court Justice Brett Kavanaugh, The Washington Post reports. The order filed by a Colorado-based appeals court states the complaints are “serious” but must be dropped because ethics rules for the judiciary do not extend as high as the Supreme Court. The claims were filed by lawyers, doctors and others who accused Kavanaugh of making false statements during his Senate confirmation hearings, displaying a lack of judicial temperament, making inappropriate partisan statements and treating members of the Senate Judiciary Committee with disrespect.
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SSA’s Study on National Benefit Offset Policy Completed

A nine-year study for the Social Security Administration (SSA) regarding a potential national policy that pays partial disability benefits to beneficiaries of the Social Security Disability Insurance (SSDI) program when earnings exceed SSA’s substantial gainful activity level has concluded, Cision PRWeb reports. Current law for SSDI recipients includes losing all SSDI benefits after 12 months of substantial earnings. In the $127 million Benefit Offset National Demonstration (BOND) study, nearly one million disability recipients were sampled. Instead of experiencing a sudden loss of benefits, beneficiaries received reduced benefits by $1 for every $2 in earning above the substantial earning threshold. The study examined whether this policy change would increase beneficiaries’ earnings and produce national savings. It found no evidence of a change in earnings for beneficiaries and found that the rule change produced an overall increase in benefits paid out under the SSDI program. You can view the SSA's full report here.

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Alexander Unsure SCOTUS Will Affirm ACA Ruling, Slatery Releases Statement

After a federal judge in Texas issued a decision in which he deemed the Affordable Care Act unconstitutional, U.S. Sen. Lamar Alexander said he was skeptical that U.S. Supreme Court would agree, The Tennessean reports. He said that if such a thing were to happen, however, that he is confident any new federal law to replace it would “continue to protect Americans with pre-existing conditions.” Attorney General Herbert Slatery issued a statement today clarifying that “nothing will change until the appeals are final” and issued a challenge to lawmakers, saying “it is up to Congress to provide lawful solutions to healthcare coverage, not just debate or campaign on it.”
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Join Us Today: LAW TECH

Today's the day! Discover the newest technology for your law practice and law office at this year's Law Tech Blast at the Tennessee Bar Center in Nashville!

The flexible open house format allows you to create your own schedule. You can attend CLE sessions, enter to win prizes, network with attendees, visit with sponsors and interact with speakers. Take as many or as few CLE hours as you need. Only those seeking to be awarded CLE Credit will be charged. The registration desk will be open all day, so you can come and go for the hours you need when it is convenient for you. Attendees can earn up to 6.5 hours of Dual CLE credit.

  • GDPR, Cloud and Technological Competency
  • The Bill and Phil Tech Show 2019: BEAT THE CLOCK
  • Best Practices: Information Security for Firms
  • Judicial Panel: Technology in the Courtroom
  • Know When to Hold 'Em
  • Digital Evidence – A Technical Life Raft for the Legal Mind
  • Make it Rain: Ethics Guidelines and Practice Essentials

ATTEND TO WIN: Attendees will have a chance to win prizes, including an iPad Pro. The tech prize drawing will be held at the 10:30 a.m. break. Must be present to win.

TAKE A LYFT: TBA has partnered with Lyft to offer attendees a discounted ride.

  • New to Lyft?: Get $5 off 2 rides at or download the app and enter code LAWTECH5
  • Already Have Lyft?: Save 10% off 2 rides to or from Law Tech Blast with code LAWTECH



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Give the Gift of TBA Membership

Give yourself (or a friend) the gift that keeps giving — one-year of unlimited access to professional development opportunities and a number of programs and services designed to help you become a better practitioner. Founded in 1881, the Tennessee Bar Association is dedicated to enhancing fellowship among members of the state's legal community. Oh, and did we mention some of the benefits? Earn three pre-paid credits to use on any live or online course featured in the 12-days of CLE. Join now!

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Pence Breaks Tie to Confirm Federal Judicial Nominee with ABA ‘Not Qualified’ Rating

Vice President Mike Pence cast a tiebreaking voting in the U.S. Senate this week to confirm a nominee who received a “not qualified” rating from the ABA Standing Committee on the Federal Judiciary, The ABA Journal reports. Jonathan Kobes will serve on the 8th U.S. Circuit Court of Appeals in St. Louis. The standing committee thought Kobes didn’t have the needed experience and did not show evidence of being able to fulfill the writing requirements required of a federal appeals judge, according to a Sept. 14 letter explaining the rating.
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Court to Recognize Bryant for 10 Years of Service

The United States District Court for the Western District of Tennessee invites you to a reception for Magistrate Judge Edward G. Bryant who is celebrating 10 years of service to the U.S. District Court for the Western District of Tennessee. To recognize his contribution, the court is hosting a reception in his honor on Jan. 4 at 2 p.m. in the United States Courthouse, 111 South Highland Ave. in Jackson. Confirm your planned attendance by Dec. 21 through email or by calling (731) 421-6338.

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Former Bush A.G. Likely Pick to Replace Sessions

President Donald Trump’s likely choice to become the next Attorney General is an establishment Republican with no prior association with the president, the ABA Journal reports from a variety of sources. Learn more about William Barr, who served in that post for two years under President George H.W. Bush and held other high-ranking jobs within the Department of Justice. Any nomination would likely take many months to confirm, leaving in place Acting Attorney General Matthew Whitaker.

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Trump Appointments: Report Looks at Possible Judicial Openings in Coming Years

With a solid Republican majority in the Senate, President Trump will likely continue to be successful in winning approval of his appointments to federal district and appellate courts, a Brookings Institute report says, but it is less likely that he will see the high number of openings that he’s been presented with during the first two years of his term.

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Dickson Lawyer Faces Federal Charges for Fraud, Theft from Trust Fund

Suspended Dickson lawyer Jack Garton was charged Thursday with wire fraud, aggravated identity theft and tax fraud related to a years-long scheme in which he allegedly misappropriated more than $1.1 million from a trust fund set up for the daughter of a state trooper killed in the line of duty, the Tennessean reports. If convicted of the federal charges, Garton faces up to 20 years in prison on the wire fraud charge, up to three years on the tax fraud charge and an additional mandatory two-year sentence on the aggravated identity theft charge. Additionally, he faces a $250,000 fine on each count and will be required to pay restitution to the victims of his crimes, according to a news release from U.S. Attorney for the Middle District of Tennessee Don Cochran.

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Justices Appear Reluctant to Stop State, Federal Prosecutions for Same Crime

A long-standing precedent that allows a state and the federal government to prosecute a person for the same crime — despite the constitutional ban on “double jeopardy” — will likely stay in place, the Associated Press reports in the Bristol Herald Courier. Both conservative and liberal Supreme Court justices hearing an appeal from an Alabama man who was prosecuted in both state and federal court for being a felon in possession of a gun, on Thursday seemed unwilling to make the change. “This is a 170-year-old rule,” said Justice Elena Kagan. It has been repeatedly upheld by more than 30 justices, and Kagan said she was “uncomfortable” in tossing it out now.

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Firms Oppose New Supreme Court Brief Word Limits

A coalition of 18 law firms that specialize in U.S. Supreme Court advocacy told the court today that proposed rules aimed at trimming the length of briefs “would be harmful” to lawyers’ ability to “thoroughly and thoughtfully brief issues that are critical to the court’s resolution of the cases before it," reports. The proposed rule changes called for cutting the word limit of briefs on the merits from 15,000 to 13,000 words. A letter from the coalition said that in “average” cases, that reduction might be doable, but added, “It can be challenging in cases of even moderate complexity to recite the relevant facts, argue the issues raised, and include all required parts of the brief within the currently allotted 15,000 words.”
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Acting U.S. Attorney General Whitaker Talks Opioids in Nashville

Acting U.S. Attorney General Matthew G. Whitaker visited Nashville today to tout the Trump administration’s ongoing efforts to fight the opioid epidemic, The Tennessean reports. Whitaker read statistics, highlighted prosecutions and emphasized that it was a top priority for President Trump. He did not take questions or discuss new initiatives during the short visit.
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December CLE in 6 Cities

TBA offers CLE in six locations during December. See offerings in Chattanooga, Knoxville, Memphis, Nashville, Johnson City and Jackson. Find last-minute by the hour through Dec. 31 or take any of the TBA's online CLE packages.
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Senate Republicans Discuss Changes to Criminal Justice Reform Bill

Senate Republicans are discussing changes to the FIRST STEP Act, the initial bill regarding a comprehensive overhaul of the U.S. criminal justice system, The Washington Post reports. Among the changes being discussed are narrowing fentanyl-related crimes to ameliorate mandatory minimum sentences in some cases, narrowing the “safety valve” provision, which provides more discretion to judges when issuing sentences and nixing the “stacking” regulation, which would add more penalties to those who commit a drug-related crime while possessing a gun, even if the firearm wasn’t used. President Trump has made criminal justice reform one of his top legislative priorities, a measure that has to date received bipartisan support.

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Blackburn Could Join U.S. Senate Judiciary Committee

Newly-elected U.S. Senator Marsha Blackburn is a favorite to join the Senate Judiciary Committee, Politico reports. Senate Republicans are eager to address their gender diversity issues, the report says, and adding Blackburn would help that process. According to Chair Chuck Grassley, it has been difficult in previous years to convince women to join the committee.

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U.S. Mulls Doubling Tariffs on China

According to Business Standard, Recently at the Asia Pacific Economic Co-operation (APEC) summit in Papua New Guinea, U.S. Vice President Mike Pence took a hard line Saturday when asked about China and tariffs stating, "The United States, will not change course until China changes its ways." The U.S. is asking China for improve market access and intellectual property protections for U.S. companies, cut industrial subsidies and slash a $375 billion trade gap. With no end in sight this warning will likely be unwelcome news to financial markets that had hoped for a thaw in relations and maybe even some sort of deal at a G20 meeting later this month in Argentina. For his part, Chinese President Xi Jinping has said, "History has shown that confrontation, whether in the form of a Cold War, hot war or trade war will produce no winners."

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