News

EPA's Reconsideration of Mercury Rule Sparks Concerns in the Environmental Community

Last week the Environmental Protection Agency (EPA) announced that it would reconsider a regulation that restricts mercury emissions by coal-burning power plants, The New York Times reports. The 2011 mercury rule has been one of the EPA’s most effective policies, with mercury pollution falling 70 percent since its inception. Some who oppose changes to mercury rule have concerns that the move will weaken the EPA’s ability to write new pollution standards in the future. A spokesman for the EPA, Joe Konkus said that the agency “knows these issues are of importance to the regulated community and the public at large and is committed to a thoughtful and transparent regulatory process in addressing them.”

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Kavanaugh Hearings Day 2: Questions on Presidential Powers, Guns

The Senate Judiciary Committee confirmation hearing for U.S. Supreme Court nominee Brett Kavanaugh continued today, with the nominee promising independence and “judicial fortitude” if confirmed, Fox News reports. He received questions from senators about previous comments he had made about investigations involving a president. “No one’s about the law,” Kavanaugh said, adding that there’s no constitutional prohibition against pursuing prosecution against a president. He was also asked about a 2011 dissent he wrote in the D.C. vs. Heller case, in which he wrote that gun restrictions should be assessed by “text, history and tradition” rather than by dangers to the public or the government’s interest in regulation. 
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Confirmations Hearings Begin for SCOTUS Nominee Brett Kavanaugh

Judge Brett Kavanaugh faced his first day of questions from U.S. Senators in his confirmation hearings today, Fox News reports. Kavanaugh promised to “keep an open mind in every case” and “strive to preserve the Constitution of the United States and the American rule of law.” Democrats have challenged the speed of Kavanaugh’s nomination and confirmation over concerns with access to his records. Kavanaugh’s hearings today were frequently interrupted by protestors disrupting the proceedings.
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Federal Judge Rated ‘Not Qualified’ by ABA Confirmed by U.S. Senate

The U.S. Senate on Tuesday confirmed U.S. Magistrate Judge Charles Barnes Goodwin for a federal judgeship, despite his “not qualified” rating from the ABA Standing Committee on the Federal Judiciary, The ABA Journal reports. Six Democrats joined the Republican majority to approve Goodwin 52-42. The committee expressed concerns about Goodwin’s work habits, including “his frequent absence from the courthouse until mid-afternoon.”  Goodwin will serve on the U.S. District Court for the Western District of Oklahoma.
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2018 Health Law Primer and Forum

Tennessee remains at the forefront of the health care industry, so it’s only fitting that we host the nation’s preeminent health law forum. This must-see, must-do event for Tennessee health law lawyers features timely programming designed to up your game and keep you on top of trends in the field. Topics for this year include new issues in health care as related to transgender and immigrant patients, the opioid crisis, fraud and abuse developments/enforcement, legislative updates and much much more. This year’s keynote speaker Chief Counsel to the Inspector General Gregory Demske will also detail priorities and enforcement efforts for the U.S. Department of Health and Human Services Office of the Inspector General. Don’t sleep on this opportunity to learn from seasoned practitioners while networking with top players in the field. Here are the key details:
 
Health Law Primer (introductory program)
When: Wednesday, Oct. 10
Where: Embassy Suites Hotel, 820 Crescent Centre Drive, Franklin
 
Health Law Forum
When:  Thursday, Oct. 11 – Friday, Oct. 12
Where: Embassy Suites Hotel, 820 Crescent Centre Drive, Franklin
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TBJ Has it: Banking, Estate Planning ... and John Ward

Laced with SARs, PEPS and OBITs, this month's Tennessee Bar Journal is full of acronyms you need to know (or are now curious about). To help with that, Nashville lawyer Kathryn Reed Edge writes about international intrigue and the importance of financial institutions’ willingness to report suspicious activity. That "OBIT" is not a death notice, but an "Optimal Basis Increase Trust" with which estate planners must be familiar. Knoxville lawyer Dan Holbrook covers it. Tennessee's Solicitor General Andrée Blumstein reviews the book Borrowed Judges: Visitors in the U.S. Court of Appeals, and Jackson lawyer Daniel Taylor reviews former TBA President Sam Elliott's book about John C. Brown. But perhaps the juiciest piece of information in this issue is about a law school graduate who walked out of the bar exam -- that's right, your Voice of the Vols, John Ward, didn't even finish the test -- he hadn't even studied! As you know, he went on to do OK in another career; Memphis lawyer Bill Haltom writes about that. Read the entire issue online.

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Federal Judge Orders Keystone XL Pipeline Review

A federal judge in Montana ordered the U.S. State Department to do a full environmental review of a revised route for the Keystone XL crude oil pipeline – a move that could further delay the project, Reuters reports. U.S. District Court Judge Brian Morris ruled for plaintiffs, ordering the review of a revised pipeline route through Nebraska to supplement one the department did on the original path in 2014. In his ruling, Morris said the State Department was obligated to “analyze new information relevant to the environmental impacts of its decision” to issue a permit for the pipeline last year. You can view the initial complaint here.

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Bankruptcy Filer Takes Student Loan Servicer to Court

A student who took out federal student loans to cover the cost of her bachelor's and master's degrees is taking the student loan provider to court, CBS Denver reports. Paige McDaniel said that she began receiving direct mail from her loan provider Sallie Mae offering additional loans to pay for different expenses. McDaniel maintains that she took advantage of the loan offers not realizing that they were different and signed up for about $120,000 of private student loans in addition to her existing federal loans. McDaniel eventually filed Chapter 13 bankruptcy, paying through the proceedings, but still came out underwater. The issuer of the private student loans — Navient Solutions — is facing lawsuits about its lending practices in Illinois, Washington, Pennsylvania and California. 

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Section Seeks Your Opinions on Upcoming Law Office Technology Forum

To help build programming for its upcoming Law Tech Forum, the TBA Law Office Technology and Management Executive Council is asking your opinions. Completing this brief web form will assist in ensuring the forum remains timely, relevant and on the cutting edge. Comments can be related to subject matter, length and location of the event. Please respond by Sept. 7. 

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Tennessee, DOJ Battle Over Federal Prosecutors Ethical Obligation in Discovery

An opinion published earlier this year by the Tennessee Board of Professional Responsibility has caused a stir in the U.S. Justice Department, setting the stage for a battle over ethics in the discovery process, The Marshall Project reports. The DOJ believes that district attorneys are duty-bound to disclose evidence that could prove a defendant’s innocence only when it’s material to the case. However, lawyer ethics panels in states, including Tennessee, have seen that standard as vague and open to interpretation by the prosecutors themselves. The new rule in Tennessee says prosecutors must hand over all evidence that is in some way favorable to a defendant, no matter if they believe it would affect the outcome or not.
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Memphis Violated Federal Decree in Surveilling Protestors, Judge Says

U.S. District Judge Jon McCalla ruled Friday that the Memphis Police Department engaged in political intelligence of protesters both at their protests and online, violating a federal court decree from 1978, WMC Action News 5 reports. The police department issued a statement following the ruling, saying in part that its "monitoring of social media for protests and counter protests is non-partisan. The City has an obligation to provide public safety and to anticipate threats to public safety."
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Law Office Management Tips on Shipping

If your law office uses shipping services, your TBA membership team can help you compare those costs to TBA’s UPS member benefit. Your firm office manager can work directly with TBA staff and UPS services to enroll or transfer shipping accounts. Members can save up to 34 percent on UPS’s broad portfolio of shipping services, including next day air, international, ground and express.
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Study Suggests More Innocent People are Pleading Guilty

A new paper published by the National Association of Criminal Defense Lawyers examines evidence suggesting that an increasing number of defendants are pleading guilty to avoid the risk of trial, rather than trying to prove their innocence, Forbes reports. The study, called “The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It,” concludes that "there is ample evidence that federal criminal defendants are being coerced to plead guilty because the penalty for exercising their constitutional rights is simply too high to risk." 
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Federal Judge: Trump Must Fully Restore DACA

A federal judge today ruled that the Trump administration must fully restore the Deferred Action for Childhood Arrivals (DACA) program, The Hill reports. In his opinion, Judge John Bates of the D.C. Circuit Court of Appeals said the Trump White House had failed to provide justification for its proposal to end the program. The judge agreed to delay the ruling by 20 days to allow the administration to to determine whether it will appeal the court's decision.
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National Archive to Provide Kavanaugh Documents to Judiciary Committee

The National Archives on Thursday responded to a GOP request for documents on Supreme Court nominee Brett Kavanaugh, indicating that the over 900,000 pages could not be delivered by the Aug. 15 deadline set by the Judiciary Committee. The requested files will likely be provided in phases, starting later this month, and completed by October. The Hill reports that sources say the delayed document timeline will not change a planned September start for Kavanaugh’s nomination hearings.

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Tennessee Appeals Driver’s License Reinstatement Ruling

The Tennessee Department of Safety and Homeland Security Commissioner David Purkey announced this week that the state would file a notice of appeal of Judge Aleta Trauger’s ruling that it is unconstitutional for Tennessee to revoke someone's driver's license if they could not pay court costs.
The Knox News Sentinel reports that the appeal does not have an impact on Trauger’s ruling and the state must continue to reinstate drivers’ licenses. The ruling was a first of its kind in the country. 
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Destination CLE Survey

Let's take a trip! The TBA CLE Committee would like your feedback on destination CLE events. Taking a moment to complete this brief survey will greatly assist us in developing the best CLE experience for you. Please complete this survey by Aug. 10. We greatly appreciate your help with this endeavor.
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Tax Law Forum 2018

The annual Tax Law Forum will be held at the Tennessee Bar Center in Nashville on Sept. 17. Sessions will focus on the new Tax Cuts and Jobs Act. Topics include the new pass-through entity tax law, an overview of the changes to international tax law, corporate and other business tax changes as well as non-profit law changes.

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Federal Practice Seminar 2018

The annual Federal Practice Seminar will be held at the Tennessee Bar Center in Nashville this Thursday. Highlights of this year’s CLE include best practices for presenting a case in federal court, analysis of key local rules for the three federal districts in Tennessee, best practices for e-discovery, and an update on Federal Probation Office policies and procedures. 
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U.S. Indicts 12 Russian Agents in Election Probe

Twelve Russian intelligence officers were indicted on Friday for their part in the hacking of the Democratic National Committee and the Clinton presidential campaign, The New York Times reports. The accusations made in the inditement are to date the most detailed account of the Russian government’s interference in the 2016 election. According to the indictment the intelligence officer used phishing attacks to gain access to Democratic operatives, along with money laundering, and attempts to break into state elections boards. The indictment did not include any accusations that the Russian efforts succeeded in influencing the election results, nor evidence that any of President Trump’s advisers knowingly coordinated with the Russian campaign.

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Federal Judge Temporarily Halts Deportation of Recently Reunited Families

A federal judge today temporarily halted the deportations of families that have been recently reunited, The Hill reports. Attorneys for the American Civil Liberties Union, which filed the request to halt the deportations, said the delay was necessary because of “persistent and increasing rumors that mass deportations may be carried out imminently and immediately upon reunification.” Judge Dana Sabraw gave the government one week to file a brief in opposition.
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ABA President Asks for Congressional, Public Input on Administrative Judge Executive Order

Hilarie Bass, president of the American Bar Association, sent a letter to the U.S. House Committee on Rules today, saying a recent executive order that changes how administrative law judges are hired could “politicize the appointment process and interfere with the decisional independence of ALJs.” President Trump’s July 10 order eliminates the nationwide, uniform, competitive selection exam process for federal administrative law judges, and weakens existing qualification standards. Bass said that no changes should be made until “there has been an opportunity for Congress and the public to engage in an open and deliberative process.”
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U.S. Senate Confirms Nashville Attorney Ney as DOD General Counsel

Nashville attorney Paul Ney has been confirmed by the U.S. Senate as the new general counsel for the Department of Defense, The Tennessean reports. President Donald Trump nominated him for the job in January. His new position will give him a key role in the Defense Department, where he will weigh in on issues involving personnel, conduct and other matters.
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Brian Benczkowski Confirmed to Lead the Justice Department’s Criminal Division

The Senate on Wednesday voted 51 to 48 to confirm President Trump’s nominee Brian Benczkowski to lead the Justice Department’s criminal division, amidst the objection of Democrats who expressed concern regarding his representation of a Russian bank and lack of prosecutorial experience, reports The Washington Post. Benczkowski once represented Alfa Bank — a Russian firm that was referenced in a dossier containing allegations about Trump, his advisers and their possible Russian connections — at the request of a partner in his firm, Kirkland & Ellis. Benczkowski told lawmakers he would recuse himself from any matters involving the bank for two years and would permanently step aside from any matters that touched on his work for the institution.

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Trump Chooses Kavanaugh for Supreme Court

President Donald Trump announced the selection of federal appellate Judge Brett Kavanaugh to the U.S. Supreme Court to replace retiring Justice Anthony Kennedy, CBS News reports. Trump touted Kavanaugh’s “impeccable credentials” and called him a “judge’s judge.” Kavanaugh previously clerked for Kennedy and has served on the D.C. Appeals Court since 2006.
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