The Second Monday in November: News From the Legal Beat

Now that the great American political machine has paused at last to take a breath, now that the commentators and lobbyists are back home soaking their shibboleths in salt water, perhaps it's time for an old-fashioned survey of the legal beat. It's the second Monday in November, after all, the first Monday after elections, and that means jurists all over the country are trying to clear their decks before the holidays.

In the least surprising news of the day, a Connecticut jury came back with a recommendation of the death penalty against a brutal murderer whose deadly home invasion tortured and killed three people. The case against Stephen J. Hayes, now all but condemned to the state's death row, had become a national story; a reminder of how suddenly life can change. Now it will recede back from the stage and Dr. William A. Petit Jr., father, husband and lone survivor of the assault, will try to begin the rest of his shattered life. Imagine what the coming holidays will feel like for him, now that the trial is over.

In the second least surprising news of the day Monday, the U.S. Supreme Court refused to involve itself in the nation's legal debate over the constitutionality of the new health care laws. There was no way the justices were going to interject themselves in the complex issues presented by the legal challenges to health care reform -- the Commerce Clause, the scope of the 10th Amendment, for example -- without first allowing the lower federal appeals courts to offer their own views. We are at least one court term away, and more realistically two, from the court accepting a health care case. So you can put away your signs and placards, at least for now.

And in the third least surprising law-related news of the day, The New York Times reported that "the lead investigator for the presidential panel delving into the BP oil spill said on Monday that he had found no evidence that anyone involved in drilling the doomed well had taken safety shortcuts to save money." This presages the legal defense that may pop up as BP takes on the multitude of claimants arrayed against it. And it will be interesting to see whether House Republicans next January consider the Gulf of Mexico oil spill worthy of congressional hearings that focus upon companies like Haliburton.

Partisans looking for a more timely scrap to tide them over until the new Congress convenes in January can nevertheless take heart. A federal judge in Oklahoma Monday halted the certification of an Oklahoma ballot measure that bans "shariah" or Islamic law in the state. State Question 755 was heartily endorsed by approximately 7 out of every 10 Sooner voters. But it has been challenged now on grounds that it would violate the religious rights of (the relatively few) Oklahomans who practice the Muslim faith. It's a legitimate legal question -- and now Oklahoma, a state with a tiny Muslim minority, has evidently created a constitutional headache for itself.

There will likely be few headaches later this week when federal jurors in New York City finally get the case of Ahmed Khalfan Ghailani, accused of taking part in the African Embassy bombings in 1998. Ghailani's prosecutors Monday offered their closing arguments with the standard stuff -- "Ahmed Ghailani has the blood of hundreds on his hands, etc. -- but the truth is that the jury's guilty verdict, sure to come as early as Thursday this week, can only buttress the Obama administration's political position on terror detainees. They'll need the cover the Ghailani verdict is likely to bring when Rep. Peter King (R-N.Y.) of the House Committee on Homeland Security calls his hearings early next year.

The Supreme Court may need even more cover early next year when it issues its ruling in AT&T Mobility v. Concepcion, a case that anyone who cares about class action lawsuits, pro or con, ought to follow. AT&T is trying to arbitrate its way out of class-action liability but California law has precluded it. So the company is trying to argue that federal law trumps California law on this point and thus dissolves the ban on class action litigation. Oral argument is Tuesday. So would the Supreme Court actually lay a hammer blow on class-action lawsuits even where state law protects them? This one might. And the decision might come around the anniversary of the court's last paean to corporate rights, the Citizens United case.

So there you go. Even when the president of the United States is in India, and a newly reconstituted Congress is not yet reconvened, and the pollsters are resting, legal news rolls on. Especially with only two weeks left to Thanksgiving and all the travel reservations already made.