News

CCL President Interviewed about Electoral College Certification

January 6th, 2021

     CCL President Robert S. Peck told the Washington, DC CBS affiliate, WUSA-9, that the vice president had no authority to refuse to recognize the certified results of the Electoral College in an interview just before Congress took up that process.

     Peck told WUSA-9 that the vice president's role is ceremonial and that there were no further legal or constitutional options to overturn the result. Shortly after the interview, Vice President Mike Pence issued a statement recognizing that the truth of what Peck said. Peck added that the next date to watch was January 20 to see if there is any resistance on the part of the president to leave office. Still, he said, the Trump presidency ends on that date as a constitutional matter.

     In a second and separate interview with the station, Peck was asked about the Expulsion Clause, which was used during the Civil War to expel some members of Congress loyal to the Confederacy. He said he thought today's senators objecting to the Electoral College certification were phrasing their objections carefully to avoid providing a smoking gun of their disloyalty, even though they are likely to be accused of that.

     The assault on the Capitol building by Trump supporters occurred shortly after both interviews.

Peck Moderates Supreme Court Advocacy Panel

December 16th, 2020

     CCL President Robert Peck moderated a panel of Supreme Court advocates discussing how arguments have changed during the COVID-19 pandemic. Peck posed questions and shared insights with Tom Goldstein of Goldstein & Russell and co-founder of SCOTUSBlog, Deepak Gupta of Gupta Wessler, and Roman Martinez of Lathan & Watkins.

     The three panelists had argued cases during 2020, using the telephone format that the Court had adopted. The hour-long conversation covered the technological set-up each used, the changes they made to the way they normally prepare for Supreme Court arguments, the surprises that occurred that required last-minute adjustments, their tips for dealing with each justice having a short period of time for questioning in order of seniority, and how the change might affect oral arguments when they return to being in-person.

     The panel was sponsored by the ABA Litigation Section's Appellate Advocacy Committee.

Peck Speaks at Conference on Emerging Civil Justice Trends

November 23rd, 2020

     CCL President Robert S. Peck spoke about trends and issues in personal jurisdiction, COVID-19 litigation and effects on the courts and jury system, and qualified immunity in a wide-ranging panel discussion, sponsored by the Law and Economics Center at George Mason University's Antonin Scalia Law School. The panel was part of a month-long virtual conference for judges, academics, and lawyers.

     Peck was part of a panel moderated by U.S. District Court Judge Sarah Pitlyk of the Eastern District of Missouri. Also on the panel were Kalpana Srinivasan, managing partner of Susman Godfrey in Los Angeles and John Beisner of Skadden Arps in Washington, DC. 

     Peck suggested that the justices themselves expressed some dissatisfaction with the direction recent personal jurisdiction cases had taken and had overstated some of the primary considerations when they heard the Ford cases that came from Montana and Minnesota in October. He also suggested that their attempt to carve federal cases out of the strict approach taken in state cases are likely to come home to roost soon, forcing them to confront different aspects of the latter's strictness.

    On COVID-19 proposals for immunity, Peck explained why tort law incorporates a type of flexibility that acknowledges unusual situations and adjusts to a sensible standard of care so that businesses and others who do not take precautions are properly held liable, while those that do will rarely be subject to suit. For that reason, immunity proposals are ill-considered because they fundamentally excuse irresponsible behavior. Peck also suggested that the technological innovations that have expanded access to the courts during the pandemic are probably here to stay, but expressed concern that we are losing familiarity with and support for jury trials, which remain essential to our civil justice system.

    Finally, Peck thought that recent developments had exposed problems with the judge-made doctrine of qualified immunity that immunizes government officials from civil rights liability when the right was not "clearly established" has begun to show enough problems that changes to the doctrine cannot be far off.

CCL President Interviewed about Upcoming Supreme Court Term

October 27th, 2020

     CCL President Robert S. Peck said that advocates on a wide range of issues were looking at the Supreme Court's newest member in calculating the likelihood that they can get their issues reviewed in that court, in an interview with WUSA9, the Washington, DC CBS affiliate. He emphasized that, at this earliest stage of her tenure, people are making what may best be described as educated guesses at how she might view any particular issue

     As an example, he noted that the Mississippi Attorney General had just filed a supplemental brief that was plainly written with newly confirmed Justice Amy Coney Barrett in mind in seeking review of a state statute that eliminated any right to abortion after the 15th week of pregnancy. The case, Dobbs v. Jackson Women's Health Org., goes to conference on October 30, where the Supreme Court could decide whether to take the case for plenary review and, if it takes the case, could decide whether Roe v. Wade remain a viable precedent. The brief makes the calculation that Justice Barrett would provide the vote necessary to approve the restriction that otherwise could not be reconciled with existing abortion precedents.

CCL's Peck Explains Supreme Court Process on TV

September 29th, 2020

     CCL President Robert S. Peck explained to viewers of the Washington, DC CBS station how cases reach the United States Supreme Court and why various groups are focused on who will replace the late Justice Ruth Bade Ginsburg. 

     Peck's interview covered the Supreme Court's processes, including petitions for certiorari, as well as some of the cases now in the pipeline for possible decision by the Court for WUSA-9.

Peck Participates in Supreme Court OT20 Preview

September 25th, 2020

     CCL President Robert S. Peck spoke today in a preview of the upcoming U.S. Supreme Court term sponsored by the Law and Economic Center of the Antonin Scalia Law School at George Mason University. 

      During the hour-long online program, Peck and John Beisner, a defense counsel from the Skadden Arps law firm, discussed upcoming cases on personal jurisdiction, the authority of the Federal Trade Commission to seek consumer restitution for deceptive lending, mandatory arbitration, and the judgment bar in the Federal Tort Claims Act, as well as answered questions from the online audience.

CCL President Robert Peck Interviewed about What Qualifications a Supreme Court Nominee Must Meet

September 25th, 2020

     CCL President Robert S. Peck told WUSA9, the Washington, DC CBS affiliate, that the Constitution imposes no qualifications on a nominee for the Supreme Court. 

     As he explained, there is no requirement that a nominee be a lawyer, although all Supreme Court nominees had legal backgrounds. When Gerald Ford was president, there was a brief discussion that he might consider a constitutional historian, however, Ford nominated Justice John Paul Stevens. 

     While theoretically, a nominee might need the same qualifications imposed by statute of any appointee to federal service, the Constitution puts its trust that a president would not name and the Senate would not confirm someone without certain generally agreed-upon qualifications.

CCL's Robert Peck Featured in New Publication on State Constitutional Rights

February 15th, 2019

     The Pound Civil Justice Institute today published the proceedings of its 2018 Forum for State Appellate Court Judges, which features CCL's Robert S. Peck as a commentator on Rutgers Law Professor Robert Williams's paper on "State Constitutional Protection of Civil Litigation."

      The book, entitled State Court Protection of Individual Constitutional Rights, transcribes the proceedings of the July 7, 2018 forum that took place in Denver, Colorado, attended by 140 judges from 36 states. In his remarks, Peck talked about the right to trial by jury and the right to a remedy under state constitutions.

      Other speakers at the conference included California Supreme Court Justice Goodwin Liu and Wayne State Law Professor Justin Long.

     

Peck Participates in Meeting with Judicial Conference Subcommittee

July 10th, 2018

     CCL President participated in a roundtable discussion that was part of the listening tour that a subcommittee of the U.S. Judicial Conference's Advisory Committee on Civil Rules held with members of the American Association for Justice at its Summer Convention in Denver, Colorado July 11.

     The subcommittee is charged with exploring whether the Federal Rules of Civil Procedure should be amended to set rules for the conduct of Multi-District Litigation (MDL). During the discussion, the subcommittee heard about the wide diversity of cases designated as MDLs and the difficulty of developing one-size-fits-all solutions to problems. On the other hand, judges presiding over these consolidated cases have proven adept at adopting procedures customized to the needs of the litigation.

Peck Speaks to AAJ Civil Rights Section

July 9th, 2018

     CCL President Robert S. Peck described landmines that recent U.S. Supreme Court decisions placed in the path of civil rights advocates in remarks made at the meeting of the Civil Rights Section of the American Association for Justice on July 9 in Denver, Colorado. 

     Peck began his talk by describing the impact that Justice Kennedy's retirement was likely to have, with the certainty being that the new nominee will be a more doctrinaire conservative. Peck likened Justice Kennedy's civil rights record to Thomas Paine's sunshine patriot, who comfortably stakes out a favorable position when the wind is blowing in that direction, but retreats when more heavy lifting is required. Peck said that the distinction often played out on issues of race. In making that case, Peck contrasted the Court's treatment of religious liberty in Masterpiece Cakeshop and its emphasis on the animus expressed in two of the five Colorado commissioners statements with the dismissal of more tethered animus from the president in connection with the Court's deference in the Travel Ban case.

     Peck also highlighted the uneven treatment often afforded those whose civil rights were violated because of the qualified immunity doctrine. There, unless the violation is clearly established before the violation takes place, the misbehavior is excused, essentially allowing one free violation -- as long as the case bothers to label the misconduct as a violation. Even though a prior case need not be on all fours with the current misconduct, and courts regularly recite that standard, it is rarely applied. Peck also highlighted a pending petition to the Supreme Court on qualified immunity, Allah v. Milling, that has attracted an unusual set of amicus supporters that span the ideological spectrum and urged his audience to watch that space.

     Peck also described the Court's recent interest in proximate cause in applying civil rights statutes. The standard applicable in civil rights remains in flux, but could trip up an otherwise meritorious case.